Pleadings/Amlers Precedents of Pleadings/Preface Preface Somewhere else the author drew a comparison between writers on civil procedure and Sisyphus who was condemned by the gods to push a rock up a mountain – eternally. Whenever he reaches the top, the stone rolls down again. Likewise, the author of a work that hovers between civil procedure and substantive law has to keep it updated since the law is in a constant state of flux, more so because of an overactive Legislature and the overabundance of judicial utterances appearing in print. The impact of the Constitution on our private law is being felt and every legal proposition has to be re-assessed against it. The de-latinization craze and the fight against legalese have also required a rephrasing of much of the text. This then is part of the justification for this edition, which is more than an update of the previous edition – it is rather a revision. An attempt has been made to state the law as at June 2003. A special word of thanks must be reserved for the editors, Marjorie Guy and Luis Palminha, who had to cross the T’s and dot the I’s and if a “he” has not been changed into a “she or he”, they have to share the blame. Now for a repeat of the preface to the fifth edition, which remains germane. LTC Harms Pretoria August 2003 Pleadings/Amlers Precedents of Pleadings/Prolegomenon Prolegomenon Pleadings and love letters have much in common. Both are personal and reflect somewhat of the author’s personality. Precedents in either instance are dangerous because they tend to be inapplicable to the facts under consideration. Each sets out and explains the position of the parties involved. If too much or too little is said, problems arise. At the end of the day they provide embarrassing evidence of the original perceptions and intentions of the author and they never please successors in title. The late Mr Harry Snitcher QC, in his foreword to the first edition (1956) of this work, made the following comments: “The drawing of pleadings is an important part of the art of the advocate and the attorney and is an ability which is acquired and perfected only after years of experience. To set down in clear, concise and lucid form the distilled essence of a plaintiff’s cause of action or of a defendant’s defence is of the essence of that art. It requires a clear conception not only of the client’s case but also constitutes a searching test of the pleader’s knowledge of the law involved. It has been said that the test of a client’s case is very often whether it can be reduced in the form of a pleading to which no exception can be taken.” That is still true. The purpose of the work is to provide a practical guide to the pleader. The emphasis is on essential allegations for causes of action and defences and the incidence of the burden of proof. The precedents are illustrative only. Flesh is lacking. This is intentional – it is to prevent a pleader from succumbing to the temptation of using them as they stand without any intellectual input. The notes have no rechtswissenschaftliche pretensions. There are many who, like Garp’s uncles, are of the opinion that the practice of the law is vulgar but that its study sublime. This work is not sublime. By the very nature of things, the notes cannot set out the underlying substantive law in detail. A selection of topics had to be made. A decision as to the extent of the discussion of each legal subject was necessary. The selection presented is not scientific or necessarily logical but is based on what is regarded as illustrative and practical. The law summarised is basic, as found in the law reports and the notes are largely uncritical. References given are, usually, the more recent ones available and those the author, subjectively, considers of having the greater precedential value. Being a work of first reference, references to articles and textbooks have been omitted. Many have contributed to this work, some wittingly, others unwittingly. Their contributions are appreciated. LTC HARMS Supreme Court of Appeal Bloemfontein Pleadings/Amlers Precedents of Pleadings/A/Accountants and Auditors [Page 1] Accountants and Auditors Related subjects:
LOCATIO CONDUCTIO OPERIS PROFESSIONAL LIABILITY
General: A public accountant is a person: (a)
engaged in public practice;
(b) who performs the functions of an accountant and auditor; (c) who for that purpose holds her- or himself out as an accountant or auditor; and (d) who places her or his services at the disposal of the public for reward. Public Accountants’ and Auditors’ Act 80 of 1991 s 1 Only a person registered as an accountant and auditor in terms of the Act and who has paid the prescribed annual fees may engage in public practice as an accountant or auditor. Public Accountants’ and Auditors’ Act 80 of 1991 s 14 Statutory duties: An auditor, in carrying out the statutory functions of an auditor, is not a functionary of the client (usually a company) and does not act on its behalf or in its name. Although appointed and remunerated by the client, the auditor carries out the independent function of reporting to share-holders on the financial statements of the company. The directors are required to see to the preparation and presentation of such financial statements. Powertech Industries Ltd v Mayberry [1996] 1 All SA 561 (W); 1996 (2) SA 742 (W) at 746 Extended liability: Registered accountants and auditors may form a company to engage in public practice through its members. One of the requirements is that the memorandum of association of the company must provide that the company’s directors and past directors are liable jointly and severally, together with the company, for its debts and liabilities contracted during their period of office. Public Accountants’ and Auditors’ Act 80 of 1991 s 21(2)(a) Since liability for delictual debts is not covered by this statutory provision, directors and past directors are not automatically liable for the delictual debts of the company. Cf Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A); 1997 (1) SA 710 (A) Remuneration: A public accountant wishing to claim remuneration must allege and prove: (a) that it is duly registered in terms of the Act and entitled to practise; (b) the terms of the mandate; (c) performance of the mandate; and (d) the remuneration (agreed, customary or reasonable) to which the plaintiff is entitled. Negligence: It is a tacit term of the agreement between a public accountant and the client that the accountant will exercise reasonable skill and care in the performance of the mandate. Usually, this means that accountants must conduct their audits in accordance with generally accepted auditing standards [Page 2] and with the due professional care required of an auditor in public practice. Failure to comply with this standard will make the accountant liable for damages for breach of contract. Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA); [2001] 4 All SA 161 (SCA) par 19 and 20 of Nienaber JA’s judgment Lipschitz NO v Wolpert & Abrahams 1977 (2) SA 732 (A) at 741 Tonkwane Sawmill Co Ltd v Filmalter 1975 (2) SA 453 (W) at 454H–455C These standards are to be gathered from the relevant legislation, from the profession’s codification of an auditor’s duties, from authoritative publications and legal decisions, and from expert evidence. Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA); [2001] 4 All SA 161 (SCA) par 21 of Nienaber JA’s judgment The breach itself is, apparently, insufficient to make the accountant liable. The client, in addition, must allege and prove that the accountant acted: (a) (b)
maliciously or pursuant to a negligent performance of its duties in expressing an opinion, or giving a certificate, or report, or statement, or certifying a statement, account or document
in the ordinary course of its duties. Public Accountants’ and Auditors’ Act 80 of 1991 s 20(9) A delictual claim would probably not be competent. Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A) Cf Correira v Berwind 1986 (4) SA 60 (ZH) Powertech Industries Ltd v Mayberry [1996] 1 All SA 561 (W); 1996 (2) SA 742 (W)
The Companies Act 61 of 1973 s 248 gives the court the discretion to relieve an auditor of liability for negligence, default, breach of duty or breach of trust if the auditor acted on behalf of a company and acted honestly and reasonably such that he or she ought fairly to be excused for such negligence. Contributory negligence: In a claim for damages based on a negligent breach of contract, the defendant is not entitled to rely on the contributory negligence of the plaintiff. Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA); [2001] 4 All SA 161 (SCA) Liability to third parties (contractual): A public accountant may be liable to a third party (not being a client) for damages caused by a negligent misrepresentation to that third party, where there is a contract between them creating such liability. Public Accountants’ and Auditors’ Act 80 of 1991 s 20(11)(a) Liability to third parties (not contractual): Section 20(9) provides that an accountant will not otherwise be liable towards a third party in respect of an opinion expressed or opinion given in the ordinary course of its duties, unless the third party alleges and proves that: (a) the accountant acted maliciously or pursuant to a negligent performance of its duties; and (b) the accountant knew or could, in the particular circumstances, reasonably have been expected to know, at the time the negligence occurred in the performance of its duties pursuant to which the opinion was [Page 3] expressed, the certificate was given, or a report or statement was made or a statement, account or document was certified that: (i) the opinion would be used by its client to induce a third party to act or refrain from acting in a certain manner; or (ii) the third party would rely on such opinion in so acting or refraining from acting. The accountant will also be liable if it is shown that it, in any way and at any time after the opinion was expressed, represented to the third party that the opinion was correct while at the time the accountant knew, or could in the particular circumstances reasonably have been expected to know, that the third party would rely on such representation for the purpose of acting or refraining from acting. The fact that the accountant performed the functions of an accountant or auditor is not in itself proof that the accountant knew – nor is it sufficient grounds for the inference that the accountant could reasonably have been expected to know – that the client would so use the opinion or that a third party would so act. (International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) dealt in detail with the liability of an auditor for negligent misrepresentation, but must now be read in the light of section 20, which did not exist when this case was decided.) NPC Electronics Ltd v S Taitz Kaplan and Company [1998] 1 All SA 390 (W) Valuer: An auditor who is required to value shares in terms of a company’s articles does not act as an arbitrator but as a valuer. The function is not quasi-judicial and the audi alteram partem rule does not necessarily apply. Estate Milne v Donohoe Investments (Pty) Ltd 1967 (2) SA 359 (A) PRECEDENTS Claim – for remuneration 1. The plaintiff is a duly registered public accountant and auditor entitled to practise as such in terms of the Public Accountants’ and Auditors’ Act 80 of 1991. 2. Pursuant to and in accordance with an oral/written agreement entered into between the parties on [date] at [place], the plaintiff conducted an audit of the defendant’s books for [state period]. 3. It was an express term of the agreement that the defendant would remunerate the plaintiff at the rate of [amount] in respect of such auditing. 4. In the alternative to paragraph 3, it was a tacit or an implied term of the agreement that the defendant would pay to the plaintiff a reasonable remuneration for such auditing. 5. The agreed and/or fair and reasonable remuneration for the said auditing is a sum of [Rx]. 6. In the premises, the defendant is indebted to the plaintiff for payment of the sum of [Rx].
Claim – for damages by client 1. On [date], the plaintiff engaged the services of the defendant, a public accountant and auditor as defined in the Public Accountants’ and Auditors’ Act 80 of 1991, to investigate and report on the financial standing of [name]. 2. The defendant knew that the plaintiff intended purchasing all the issued shares in [name], and that the plaintiff required the investigation and consequent report for the purpose of determining a fair market value for the shares. [Page 4] 3. It was a tacit term of the contract that the defendant would perform the agreed duties competently, without negligence, in accordance with generally accepted auditing standards and with the due professional care required of an auditor in public practice. 4. On [date], defendant reported that the net asset value of [name] was [amount] and that the purchase price of the shares could be based thereon. 5. In preparing this report, the defendant performed these duties incompetently and negligently in the following respects: [detail]. 6. Had the defendant not been negligent, he would have established that the net asset value of [name] was only [Rx]. 7.
Acting on the defendant’s aforesaid report, the plaintiff purchased the shares for [Ry].
8. Had the plaintiff known the true financial position of [name], he would not have paid [Ry] for the shares but would have paid only their true value of [Rx]. In consequence [Ry–Rx].
of
the
defendant’s
breach
of
contract,
the
plaintiff
suffered
a
loss
9. of
Claim – for damages 1. On [date], the defendant, a public accountant as defined in the Public Accountants’ and Auditors’ Act 80 of 1991, signed a financial report in respect of [name] (“the company”) in which the following figures appear: [detail]. 2. Whilst preparing the said report, the defendant knew that the directors of the company intended to use the report to induce the plaintiff to purchase all the issued shares in the company at a price based on the report and that the plaintiff would rely on the report for that purpose. 3. The figures aforesaid were false and incorrect in the following respects: [detail]. 4. In preparing the report, the defendant was negligent in the performance of its duties in that it failed to [detail]. 5. Relying on the report, the plaintiff was induced to buy the shares in the company for [Ry], whereas, had the true figures been given, the plaintiff would have paid only [Rx], being the true value of the said shares. 6. In consequence of the defendant’s actions, the plaintiff has suffered a loss of [Ry–Rx]. Pleadings/Amlers Precedents of Pleadings/A/Accounts Accounts Related subjects: AGENCY PARTNERSHIPS
Essentials: The object of a claim for an account is to enable the claimant to establish whether the other party is indebted to the claimant. The typical claim is for delivery of an account, a debate thereof and payment of the amount found to be due. The claimant must allege and prove: (a)
The basis of the right to receive an account. The duty to render an account is dependent upon one of the following: (i) a fiduciary relationship between the parties which obliges the person in a fiduciary position to provide an account (typical examples are those of partners, agents and trustees, but not banks);
[Page 5] (ii) a contractual obligation to render an account; or (iii) a statutory duty to render an account. Rectifier & Communication Systems (Pty) Ltd v Harrison 1981 (2) SA 283 (C) Rosseau NO v Cloete 1952 (3) SA 703 (C) Loots v Nieuwenhuizen 1997 (1) SA 361 (T) Doyle v Board of Executors [1999] 1 All SA 309 (C); 1999 (2) SA 805 (C) ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) (b)
(c)
If the right relied upon is contractual, the terms of the contract. If the right is not contractual, the circumstances having a bearing on the right to the account sought – for instance, the grounds upon which it is said that the relationship between the parties is a fiduciary one. The defendant’s failure to render an account or, if an incomplete account has been rendered, failure to render a proper account. Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) Narayanasamy v Venkatrathnam 1979 (3) SA 1360 (D) Field NNO v Compuserve (Pvt) Ltd 1991 (4) SA 490 (Z) Nucsa v Nucsa 1995 (4) SA 813 (T)
Procedure: If these elements have been established, the court will usually order the rendering of an account within a time specified in the court order. It will also prescribe the time and procedure of the debate to follow. First, the parties should debate the account between themselves. If they are unable to reach an agreement, they should then formulate a list of the disputed items. The formulation can be done by means of an amendment to the pleadings or at a pre-trial conference. Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) at 762–763 This procedure is not obligatory and a plaintiff is entitled, in an appropriate case, to continue with the action for an account and, simultaneously, for its debatement. Dale Street Congregational Church v Hendrickse 1992 (1) SA 133 (E) If the plaintiff receives an account which is allegedly inadequate, the plaintiff may proceed with a claim for a due and proper account. Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) at 767 Nusca v Nusca 1995 (4) SA 813 (T) PRECEDENTS Claim – for delivery and debate of account 1. At all material times and in terms of an oral agreement entered into between the parties personally at [place] on [date]: (a) the parties were partners in a general dealers business t/a ABC at [address]; (b) the defendant was in full control of the conduct of the business; (c) [any other relevant details]. 2. It was an express [tacit or implied] term of the partnership agreement that the defendant would regularly, and not less than monthly, render to the plaintiff a full account of all the affairs of the aforesaid business which account would, where necessary, be supported by vouchers. 3.
Despite demand, the defendant has failed to render any account at all for the period [state period]. [Page 6] 4. Alternatively, such accounts as the defendant has rendered are defective and inadequate in the following respects: [detail]. WHEREFORE the plaintiff prays for an order: (a)
That the defendant render a full account, supported by vouchers, of the business ABC for the period [state period].
(b) Debate of the said account. (c) Payment to the plaintiff of whatever amount appears to be due to the plaintiff upon debate of the account. Prayer – account in an estate (a)
(b)
That defendant be ordered to render to the plaintiff (the executor) within [period] from the date of the order a true and proper statement of account together with substantiating documents reflecting the correct income, assets, expenditure and liabilities of the deceased’s estate. That the defendant be ordered to debate the said account with the plaintiff within [period] from the time such account was rendered in terms of par (a) above.
Order [Cf Nusca v Nusca 1995 (4) SA 813 (T) at 820J–821C.] 1. The defendants are ordered to render to the plaintiff within two months from date of this judgment a true and proper statement of account together with substantiating documents reflecting the correct income, assets, expenditure and liabilities of the deceased’s estate. 2. The defendants are ordered to debate the said account with the plaintiff within one month from the date it was rendered in terms of par 1 above. Pleadings/Amlers Precedents of Pleadings/A/Actio ad Exhibendum Actio ad Exhibendum Related subjects:
CONDICTIO FURTIVA VINDICATION
Cause of action: The actio ad exhibendum is a delictual action which is normally instituted as an alternative to rei vindicatio (see : VINDICATION). It enables a plaintiff to claim damages from an erstwhile possessor of the plaintiff’s property. Essentials: The plaintiff must allege and prove that: (a) the plaintiff is or was the owner of the property concerned when such property was alienated by the defendant; RMS Transport v Psicon Holdings (Pty) Ltd 1996 (2) SA 176 (T) at 181 (b) (c)
the defendant had been in possession of this property; when the defendant lost possession, the defendant had knowledge of the plaintiff’s ownership or claim to ownership of the property. Vulcan Rubber Works (Pty) Ltd v SAR & H 1958 (3) SA 285 (A) Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T) at 48 Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) at 1011–1012; on appeal: 2003 (1) SA 204 (T) at 212 A defendant who disposes of a plaintiff’s property after the institution of an action in which the plaintiff relies on alleged ownership is mala fide. Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A)
[Page 7] Dolus eventualis is sufficient to constitute knowledge. The defendant will be liable if, at the time of the disposition or destruction of the disputed property, he or she knew of the plaintiff’s right or claim. The defendant cannot disavow knowledge if “red or amber lights flash”. Frankel Pollak Vinderine Inc v Stanton [1996] 2 All SA 582 (W) at 601e–f; 2000 (1) SA 425 (W) at 425 An allegation or evidence that the defendant should have known of the plaintiff’s ownership is insufficient; Hall & Sons Ltd v Kleinsmith 1963 (4) SA 320 (T) (Gore NO v Saficon Industrial (Pty) Ltd 1994 (4) SA 536 (W) at 549–550 contains dicta that appear to be in conflict with this exposition) (d)
the defendant intentionally disposed of the property or caused its destruction intentionally or negligently. Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T) at 52
Relief: The plaintiff is entitled to claim for damages resulting from the defendant’s wrongful act. These damages are normally the value of the plaintiff’s property at the date of disposal of the property by the defendant. Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) On occasion, damages have been granted to a plaintiff claiming vindication where the defendant alienated the plaintiff’s property after institution of the action, even though the plaintiff had not claimed damages, but where there was sufficient evidence of the value of the property. Aspeling NO v Joubert 1919 AD 167 Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) The better practice would be to amend the claim and to introduce the damages claim. Conversion: The English-law doctrine of conversion does not form part of our law. This doctrine holds that any person who, even innocently, obtains the goods of a person who has been fraudulently deprived of them and disposes of such goods is liable in tort to the owner. Atkinson Oates Motors Ltd v Trust Bank of Africa Ltd 1977 (3) SA 188 (W) PRECEDENTS Claim – for payment of value Plaintiff is the owner of a [year] model motor vehicle with [engine number]. Defendant was in possession of the said vehicle during [period]. Defendant knew that the plaintiff was the owner of the vehicle during this period.
1. 2. 3.
4. Notwithstanding this knowledge and without the plaintiff’s consent, the defendant on or about [date] disposed of the vehicle to a person unknown to the plaintiff. 5. At the time of the said disposal, the value of the vehicle was [amount]. WHEREFORE the plaintiff claims payment of [amount]. Claim – for damages 1. Plaintiff is the owner of a [year] model motor vehicle with [engine number]. 2. Defendant was in possession of the said vehicle during [period]. [Page 8] While the defendant was in possession of the vehicle, he knew that the plaintiff was its owner. The vehicle was damaged in a collision that took place at [place] on [date]. The damage was caused by the defendant’s negligence [detail]. Prior to the collision, the value of the vehicle was [Rx].
3. 4. 5. 6. 7.
The post-collision value of the vehicle is [Ry]. Plaintiff is in possession of the damaged vehicle.
8.
WHEREFORE plaintiff claims: Payment of [Rx–Ry]. Pleadings/Amlers Precedents of Pleadings/A/Actio Aquae Pluviae Arcendae Actio Aquae Pluviae Arcendae Related subject :
WATER
General: This action and the related interdict protect the plaintiff’s property against interference with the natural flow of water from the defendant’s property onto that of the plaintiff by means of artificial works. There is an implied servitude in terms of which a property is entitled to receive water from a neighbouring property where such water would naturally flow onto the ground of the former property. De Villiers v Galloway 1943 AD 439 This applies to both urban and rural land. Williams v Harris 1998 (3) SA 970 (SCA) It is wrongful to erect works that alter the natural flow of water in such a way that it flows onto another person’s property and causes damage to it. Since the actio is not intended for the recovery of damages, but for the abatement of mischief by an owner, fault is not a requirement for a claim for abatement. This principle is subject to exceptions: (i) the existence of a servitude; (ii) a contract or statute justifying interference; and (iii) reasonable cultivation of agricultural land. Thormahlen v Gouws 1956 (4) SA 430 (A) Van Schalkwyk v Van der Wath 1963 (3) SA 636 (A) Damages: The plaintiff is entitled to damages suffered after litis contestatio without having to allege and prove fault. The plaintiff will, presumably, have to amend the claim to cater for this relief. Cape Town Council v Benning 1917 AD 315 A claim in respect of damages incurred prior to litis contestatio must be based on the lex Aquilia: in other words, negligence must be alleged and proved. Cape Town Council v Benning 1917 AD 315 Actio (interdictum) quod vi aut clam : This action or interdictum was, in principle, available against the erector of a construction on neighbouring property and it obliged the defendant to allow the plaintiff to remove the construction. It now allows a claim for damages to the owner of damaged land. While it does not require proof of fault, the plaintiff must allege and prove that the works that caused the damage were erected either secretly or with force. Cape Town Council v Benning 1917 AD 315 Thormahlen v Gouws 1956 (4) SA 430 (A) Baldric Farms (Pty) Ltd v Wessels 1994 (3) SA 425 (A) at 431 [Page 9] PRECEDENTS Claim Plaintiff is the owner of a farm known as [name], situate at [location].
1.
2. Defendant is the owner of [name], a farm adjoining the plaintiff’s farm along its boundary, which runs from east to west. 3. On both sides of this boundary there are ploughed fields. 4. The slope of the land is from north to south across the aforesaid boundary. 5. The normal runoff of rainwater is from the defendant’s farm southward across the plaintiff’s farm. 6. On his farm, to the north of the boundary, the defendant constructed a trench [metres] deep and [metres] long, running from about north-east to south-west. 7.
As a result of the construction of the trench, rainwater falling on the defendant’s farm runs onto the plaintiff’s farm in a greater concentration and volume and with greater force and velocity than would naturally occur according to the natural slope of the land. 8. On [date], rain fell on the defendant’s farm and flowed onto the plaintiff’s farm at a greater concentration and volume and with greater force and velocity than would naturally occur if it were not for the construction of the trench. As a result of this water flow, the plaintiff’s lands were extensively damaged by flooding and erosion. Plaintiff suffered damages in the amount of [Rx] made up as follows:
9. 10.
[detail] 11. Defendant secretly erected the trench. WHEREFORE plaintiff claims: (a)
(b)
(c)
An order directing the defendant to fill in the trench on his farm [name], and to restore the status quo so that the flow of water running from his farm onto the farm [name] belonging to the plaintiff is not unnaturally concentrated or increased, either in volume or in force. An order prohibiting the defendant from erecting any further works on his farm which would have the effect of increasing or concentrating the volume, force or velocity of the flow from the farm [name] onto the farm [name]. Payment of [Rx] being damages.
Pleadings/Amlers Precedents of Pleadings/A/Actio de Pastu Actio de Pastu Related subjects:
ACTIO DE PAUPERIE WILD ANIMALS
General: The actio de pastu is available to the owner of land who has suffered damages as the result of the grazing and the concomitant trampling of fodder or crops. Vermaak v Du Plessis 1974 (4) SA 353 (O) Essentials: The plaintiff must allege and prove that: (a) the plaintiff is the owner of (or holder of some relevant real right to) the property damaged; (b) the defendant is the owner of the animals; (c) they grazed upon the property; (d) the plaintiff has suffered damages as a consequence of the grazing. Van Zyl v Kotze 1961 (4) SA 214 (T) Coetzee & Sons v Smit 1955 (2) SA 553 (A) Damages must be properly quantified in terms of Uniform rule 18(10). [Page 10] Negligence: Liability is independent of negligence. As will be pointed out in the context of the actio de pauperie, it is advisable to rely in the alternative on the lex Aquilia. See : ACTIO DE PAUPERIE Defence: Where the plaintiff was at fault in relation to the damage – for example, by leaving gates open – such fault can be raised as a complete defence. Potgieter v Smit 1985 (2) SA 690 (D) Pieters v Botha 1989 (3) SA 607 (T) PRECEDENTS
Claim – based on actio de pastu Plaintiff is the owner of [identify property]. Defendant was at all relevant times the owner of a [describe, for example, a herd of Friesland cattle].
1. 2.
3. On [date], the said [herd] entered the plaintiff’s property, grazed thereon and damaged the plaintiff’s crop of [for example, maize]. 4. As a result, the plaintiff suffered damages in the sum of [amount] being the value of the damaged crop calculated as follows: [detail]. WHEREFORE plaintiff claims: (a) (b)
Payment of [amount] being damages. Interest.
Pleadings/Amlers Precedents of Pleadings/A/Actio de Pauperie Actio de Pauperie Related subjects:
ACTIO DE PASTU WILD ANIMALS
General: This action makes an owner of a domesticated animal liable for damages caused by such animal, without imputing fault to the owner. Essentials: It is necessary for the plaintiff to allege and prove that: Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA) (a) the ownership of the animal vested in the defendant at the time of the infliction of the injuries; O’Callaghan NO v Chaplin 1927 AD 310 SAR&H v Edwards 1930 AD 3 Solomon NNO v De Waal 1972 (1) SA 575 (A) (b) (c)
the animal was a domesticated animal; the animal acted contrary to the nature of domesticated animals generally (contra naturam sui generis) in causing damage to the plaintiff. For example, for a dog to bite, an ox to gore, or a horse to kick would be contrary to their domesticated nature. Da Silva v Otto 1986 (3) SA 538 (T) Sheep or cattle grazing, an attacked animal defending itself, a horse kicking in pain and a ram jumping over a fence to cover a neighbour’s [Page 11] ewe all act according to their nature (secundam naturam sui generis) and not contrary thereto. Coetzee & Sons v Smit 1955 (2) SA 553 (A) Jordaan v Krone Broers [1999] 3 All SA 57 (C) In the absence of an express allegation, the question of whether the animal acted contrary to the nature of its class may be implied from the other facts set out in the pleading. Maree v Diedericks 1962 (1) SA 231 (T) It is not necessary to prove that the animal acted out of perversity or that it was inherently vicious. Van Niekerk v Jantjies [1996] 2 All SA 517 (E) There is no onus on the plaintiff to explain the peculiar behaviour of the animal. Da Silva v Coetzee 1970 (3) SA 603 (T)
(d) the conduct of the animal caused the plaintiff damage. Portwood v Svamvur 1970 (4) SA 8 (RA) The damage may be to property or person. Cf Solomon NNO v De Waal 1972 (1) SA 575 (A)
Damages must be quantified properly in terms of Uniform rule 18(10). The actio de pauperie and negligence: The liability of the owner of the domesticated animal is independent of any fault on that owner’s part. It is advisable to base the plaintiff’s claim, in the alternative, on the actio legis Aquiliae. Thus, should the plaintiff, for example, be unable to prove the defendant’s ownership or that the animal acted contra naturam suam, the plaintiff may nevertheless be able to prove negligence on the part of the defendant in failing to control the animal. Cf Coetzee & Sons v Smit 1955 (2) SA 553 (A) Defences: The onus is on the defendant to allege and prove the defences set out hereinafter. O’Callaghan NO v Chaplin 1927 AD 310 Da Silva v Coetzee 1970 (3) SA 603 (T) (a) The animal that caused the injury was provoked by the culpable conduct of the injured party (the plaintiff), a third party or by the conduct of another animal. Swart v Honeyborne 1981 (1) SA 974 (C) Minister van Polisie v Chetty 1977 (2) SA 885 (A) (b)
A third party in charge or control of the animal negligently failed to prevent the animal from injuring the victim. Lever v Purdy 1993 (3) SA 17 (A)
(c) The “unlawful” presence of the plaintiff on the premises opened the plaintiff to the risk of injury. In order to succeed, the defendant must show that the plaintiff had neither “a lawful purpose to be on the premises, [nor] a legal right to be there”. Only persons who are on the premises by invitation or permission, express or implied, have a legal right to be on the premises. O’Callaghan NO v Chaplin 1927 AD 310 Veiera v Van Rensburg 1953 (3) SA 647 (T) Vermaak v Khoza 1979 (1) SA 578 (N) [Page 12] (d)
Volenti non fit iniuria : The defendant must allege and prove that the plaintiff knew of the risk of sustaining injury from the defendant’s animal and voluntarily accepted that risk. Joubert v Combrinck 1980 (3) SA 680 (T) Maartens v Pope 1992 (4) SA 883 (N) See : VOLENTI NON FIT INIURIA
PRECEDENTS Claim – based on the actio de pauperie and, in the alternative, the actio legis Aquiliae Defendant was at all material times the owner of a male Rottweiler dog.
1.
2. On [date] at [place], the said dog injured the plaintiff by [for example, biting] and caused him damage by [for example, tearing his trousers] and [set out injuries]. 3. The said animal acted contrary to the nature of its class. 4. Alternatively, in the event of the court’s holding that the defendant was not the owner of the animal or that the animal did not act contrary to the nature of its class, the plaintiff alleges that the defendant was negligent in that [for example] (a) the defendant knew or should have known that the dog was at times vicious and likely to bite strangers lawfully visiting; (b)
the defendant failed to take any steps to safeguard persons lawfully on his premises from any possible attack on them by the dog. 5.
As a result of the foregoing, plaintiff suffered the following damages: (a) pain and suffering [amount]; (b) medical expenses [amount]; (c)
loss of [for example, trousers] [amount]. WHEREFORE plaintiff claims: (a) Payment of [amount] being damages. (b) Interest. Plea – to an actio de pauperie based on trespass by plaintiff 1. Defendant pleads that, at the time the plaintiff was bitten by the defendant’s said dog, the plaintiff had entered upon the defendant’s premises without any legal right to be thereon and that the dog, a watchdog guarding the defendant’s house, thereupon bit the plaintiff. Defendant accordingly denies that the dog acted contrary to the nature of its class.
2.
Plea – to an actio de pauperie based on volenti non fit iniuria, alternatively negligence 1. Defendant pleads that the plaintiff was at all material times aware that the defendant kept a fierce dog on his property and that such dog was liable to bite and injure persons who entered upon such property, but, in spite of such knowledge, the plaintiff entered upon the property and freely and voluntarily assumed the risk of injury. 2. Alternatively, the defendant pleads that the plaintiff, having the aforesaid knowledge, was negligent in entering the defendant’s property and that any injuries sustained were occasioned by this said negligence [detail]. [Page 13] Pleadings/Amlers Precedents of Pleadings/A/Actio Legis Aquiliae Actio Legis Aquiliae See : DAMAGES, LEX AQUILIA, NEGLIGENCE Pleadings/Amlers Precedents of Pleadings/A/Actio Pauliana Actio Pauliana Related subjects:
FRAUD INSOLVENCY
General: Alienation of assets by a debtor in fraud of creditors may be set aside at common law in terms of the actio Pauliana. This action is available even if the estate of the debtor has not been sequestrated. Kommissaris van Binnelandse Inkomste v Willers [1999] 2 All SA 342 (A); 1999 (3) SA 19 (SCA) Essentials: The plaintiff must allege and prove: (a) that the plaintiff is a creditor of the debtor; (b) the alienation of assets by the debtor; (c) that the alienation was of such a nature that it diminished the debtor’s estate; (d) that the assets did not belong to the person who received the property from the debtor; (e) the debtor’s intention to defraud creditors – that is, a disposition with knowledge of insolvency; (f) causation – that is, that the fraud had the intended effect, namely to defraud creditors and cause them loss. Fenhalls v Ebrahim 1956 (4) SA 723 (D) Sackstein & Venter NNO v Greyling 1990 (2) SA 323 (O) Kerbyn 178 (Pty) Ltd v van den Heever NO 2000 (4) SA 804 (W) at 818B Extension of action: The action lies for the recovery of property from a person who has acquired the property gratuitously or without valuable consideration from someone who has alienated the property in fraud of a creditor
even though the person who acquired such property was innocent of the fraud. The debtor’s fraudulent intent remains nevertheless an element of the cause of action. Commissioner of Customs & Excise v Bank of Lisbon International Ltd 1994 (1) SA 205 (N) at 210C–D Kommisaris van Binnelandse Inkomste v Willers [1999] 2 All SA 342 (A); 1999 (3) SA 19 (SCA) The action also finds application where the debtor pays into a bank account money obtained by fraud but which, on being paid into the bank, becomes the property of the bank. Commissioner of Customs & Excise v Bank of Lisbon International Ltd 1994 (1) SA 205 (N) at 213E–H Not only the assets transferred to the third party can be recovered but also other benefits obtained as a result of the fraud. Kerbyn 178 (Pty) Ltd v van den Heever NO 2000 (4) SA 804 (W) at 817–819 [Page 14] The action is, however, not a remedy for recovery by a claimant of property that the claimant has lost as result of fraud. Nedcor Bank Ltd v ABSA Bank 1995 (4) SA 727 (W) Parties: As a general rule, the debtor and the third party (the receiver of the property) have to be joined as codefendants. In the course of sequestration or liquidation, the trustee or liquidator will be the plaintiff. Wolpe v Gale 1980 (3) SA 259 (W) PRECEDENTS Claim – setting aside fraudulent disposition First defendant is indebted to the plaintiff in the sum of [amount] by virtue of [set out cause of action].
1.
2. On [date] at [place], the first and second defendants, by way of a written agreement, created a trust. A copy of the deed of trust is annexed. 3. In terms of the deed of trust: (a) the second defendant was appointed trustee; (b) the first defendant’s children were appointed the trust beneficiaries; (c) the trust was to be a discretionary trust; (d) first defendant was to transfer his farm [name] to the trust by way of a donation. 4. First defendant did transfer the farm to the second defendant as trustee on [date]. 5. When the deed of trust was entered into and when the farm was transferred, the first defendant was insolvent and indebted to the plaintiff as aforesaid. 6. The deed of trust was entered into and the transfer of property took place with the intention of defrauding the plaintiff and the other creditors of the first defendant. 7. As a result of this fraud, the plaintiff is unable to recover his claim from the first defendant. 8. The trust beneficiaries have not yet accepted the trust advantages. Alternatively, they have accepted them with knowledge of the fraud [in which event they must be joined]. WHEREFORE the plaintiff claims for an order: (a) Setting aside the deed of trust. (b) Declaring that the farm is the property of the first defendant. (c) Declaring that the plaintiff is entitled to attach the farm in execution in satisfaction of his claim against the first defendant.
Pleadings/Amlers Precedents of Pleadings/A/Administration of Deceased Estates Administration of Deceased Estates Parties: The duly appointed executor is the legal representative of the deceased estate. Proceedings by or against the estate must be in the name of the executor acting in an official capacity. Du Toit v Vermeulen 1972 (3) SA 848 (A) Clarkson NO v Gelb 1981 (1) SA 288 (W) Pentz v Gross 1996 (2) SA 518 (C) Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (A) The rule does not apply where the executor is delinquent and an heir wishes to claim, on behalf of the estate, damages from the executor. Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (A) [Page 15] If an executor fails or refuses to act on behalf of the estate, the proper procedure for an interested party is to have the executor replaced or to cite the executor as a nominal defendant. Cumes v Estate Cumes 1950 (2) SA 15 (C) If a co-executor refuses without reason to be joined in litigation, the court may, on application, permit the other executor to litigate on her or his own. Webster v Webster 1968 (3) SA 386 (T) Creditor’s claims: The Administration of Estates Act 66 of 1965 provides for the proof of claims against deceased estates and for payment of accepted claims. The executor is obliged to pay only after the accounts have been accepted by the master. The institution of an action in respect of an undisputed claim, before the account is accepted by the master, is premature. McNicol v Delport NO 1980 (4) SA 287 (W) If a claim is disputed, the normal way of solving the issue is by way of the procedure prescribed in section 35. A creditor does not forfeit the claim if he or she does not follow that procedure. MacDonald, Forman & Co Ltd v Van Aswegen 1963 (3) SA 173 (O) Benade v Boedel Alexander 1967 (1) SA 648 (O) Els NO v Jacobs 1989 (4) SA 622 (SWA) The relief claimed must be for a declaratory order that the plaintiff is entitled to have the claim reflected in the distribution account. Creditor’s claim against an heir: The creditor may claim from an heir repayment of the creditor’s claim against the estate under the condictio indebiti (probably, more correctly, the condictio sine causa). Van Zyl v Serfontein 1992 (2) SA 450 (C) See : CONDICTIO INDEBITI, CONDICTIO SINE CAUSA The following matters require emphasis in this context: (a) The heir must have been unjustly enriched at the expense of the creditor. This will be the case only where there has been an overpayment to the heir and nothing is left in the estate to satisfy the claim of the creditor. Mosam v De Kamper 1964 (3) SA 794 (T) (b) It must be alleged that the defendant is an heir. The claim is not available against a legatee unless the amounts recoverable from heirs are insufficient to cover the creditor’s claim. Prinsloo v Woolbrokers Federation Ltd 1955 (2) SA 298 (N) (c) The indebtedness of the estate to the plaintiff must be alleged and proved. Mosam v De Kamper 1964 (3) SA 794 (T) A creditor’s claim against an executor personally: If an executor makes a distribution otherwise than in accordance with the provisions of the Administration of Estates Act and the accepted estate account, the executor is personally liable to an underpaid creditor for the loss caused by such incorrect payment. Onus: The onus on a claimant against a deceased estate is the ordinary civil onus, but a court will scrutinise the claim with care. Borcherds v Estate Naidoo 1955 (3) SA 78 (A) Johnston v Johnston NNO 1972 (3) SA 104 (RA) Low v Consortium Consol Corpn (Pty) Ltd 1999 (1) SA 445 (A) [Page 16] Plene administravit (completed administration): This defence is based on English law and was purportedly available to an executor in circumstances where:
(a) the administration was duly completed; (b) the executor duly complied with the provisions of the Act in respect of the estate accounts; and (c) there are no further assets in or due to the estate. Faure v Britz NO 1981 (4) SA 346 (O) It seems that this defence does not exist in our law and that a creditor is, in these circumstances, still entitled to judgment against the estate, subject to the proviso that such a creditor is entitled to be paid only from assets that have not yet been distributed. Visser v Schmidt NO 2001 (3) SA 810 (T) Tolstrup NO v Kwapa NO 2002 (5) SA 73 (W) Maladministration: Heirs have an action against an executor in respect of loss suffered by them consequent upon maladministration of the deceased’s estate. This action is the actio legis Aquiliae. The duty of care flows from the fiduciary position held by the executor. Sasfin (Pty) Ltd v Jessop 1997 (1) SA 675 (W) Lindsay v Stofberg NO 1988 (2) SA 462 (C) PRECEDENTS Claim – against executor on contract of deceased 1. Defendant [name] is sued herein in his capacity as executor in the estate of the late [name] (who died at [place] on [date]) appointed by virtue of letters of administration issued in his favour by the Master of the High Court [place] on [date]. 2. On [date], the late [name] purchased from the plaintiff certain machinery, by way of an oral agreement, for the sum of [amount] at [place]. 3. The said machinery was delivered to [name] during his lifetime on [date], but he failed to pay the purchase price or any part thereof. 4. Plaintiff has duly lodged his claim with the defendant in terms of the provisions of the Administration of Estates Act 66 of 1965. 5. Defendant thereafter lodged a first and final liquidation and distribution account in the estate and advertised it for inspection as provided for in Act 66 of 1965. In the said account, the defendant failed to admit and reflect the plaintiff’s claim.
6.
7. Plaintiff thereafter, acting in terms of section 35(7) of Act 66 of 1965, in time and in writing, lodged an objection with the Master against the omission of the said claim from the account. A copy of the objection is attached hereto and marked “A”. The Master overruled the plaintiff’s objection on [date].
8.
WHEREFORE plaintiff claims: (a) Payment of [amount]. (b) Alternatively, an order directing the defendant to amend the final liquidation and distribution account in the estate of [name] by including therein the plaintiff’s claim as a creditor for [amount]. Claim – of creditor against heirs 1. Defendants were appointed only heirs in equal shares in the estate of the late [name] (“the deceased”), who died at [place] on [date], in terms of his last will, duly executed by him at [place] on [date]. A copy of the will is attached hereto and marked “A”. [Page 17] At the time of his death, the deceased was indebted to the plaintiff in the sum of [amount] being [detail].
2.
3. On [date], the executor in the deceased estate, after having lodged and advertised a first and final liquidation and distribution account in the said estate as required by law, paid to the defendants the sum of [amount] each, being their share as heirs. 4. Plaintiff, being at all material times ignorant of the death of the deceased, did not lodge his claim for the sum of [amount] with the executor, and the executor did not include the plaintiff’s claim in the said account. In consequence of the foregoing, the plaintiff received no payment in respect of such claim. 5. There are no other funds or assets in the hands of the executor belonging to the deceased estate out of which the plaintiff’s claim can be satisfied. 6. In the premises, the defendants have been unjustly enriched at the plaintiff’s expense in the amount of [amount] and are accordingly liable to him in that amount. Claim – for damages against a dismissed executor Plaintiff is the executor in the estate of the late [name].
1.
2. First defendant was the executor in the estate from [date] until [date] when he was removed from his position and the master of this court appointed the plaintiff in his stead. 3. First and second defendants, in partnership, conducted the business of accepting appointments as executors and the administration of deceased estates for the benefit of the partnership. First defendant, as partner, accepted and occupied the position of executor as aforesaid. During [state period], the first defendant stole [specify] from the estate. First defendant acted as aforesaid in the course and scope of the business of the partnership. As a consequence, the estate suffered damages in the sum of [amount]. The partnership was dissolved on [date].
4. 5. 6. 7. 8.
WHEREFORE the plaintiff claims against the defendants, jointly and severally, payment of [amount]. [Based on Lindsay v Stofberg NO 1988 (2) SA 462 (C).] Claim – for damages against executor [Useful precedents are to be found in Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA 283 (A) at 311G–315D; Sasfin (Pty) Ltd v Jessop 1997 (1) SA 675 (W) at 680D.] Claim – for damages by heir against executor [A useful precedent is to be found in Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (A).] Pleadings/Amlers Precedents of Pleadings/A/Admiralty Claims Admiralty Claims [Text prepared by Adv Graham Lopes, Durban.] Types of actions: Admiralty claims may be divided into two broad categories: (a) Actions in rem against various categories of property. Admiralty Jurisdiction Regulation Act 105 of 1983 s 3(5)(a)–(f) (b)
Actions in personam against certain categories of persons. Admiralty Jurisdiction Regulation Act 105 of 1983 s 3(2)(a)–(e)
Any admiralty claim must fall within the definition of a “maritime claim” as set out in section 1 of the Act. [Page 18] Jurisdiction: Admiralty jurisdiction is extremely wide and is defined in the Act. The law to be applied: There are three possibilities:
(a) If the Colonial Courts of Admiralty would have had jurisdiction before the commencement of the Act on 1 November 1983, English law as at that date applies. (b) (c)
If the Colonial Courts of Admiralty would not have had jurisdiction, Roman-Dutch law is applicable. The parties may have agreed to a system of law to be applied in the event of a dispute, in which event that system will be applicable. Admiralty Jurisdiction Regulation Act 105 of 1983 s 6
Pleadings: Admiralty cases are governed by their own rules of procedure, and the rules of pleading in the admiralty court are not as stringent as those in the ordinary courts. Rules Regulating the Conduct of Admiralty Proceedings rule 9 Essentials: The most important aspects of any cargo claim, which must be identified accurately, are: (a) (b) (c)
the party to be sued; the legal standing of the suing party to claim; and the time within which the action must be commenced.
Time limit: Almost all contracts of carriage are subject to either the Hague rules or the Hague-Visby rules, both of which provide for a time bar of one year. Associated ships: A ship other than a ship in respect of which the maritime claim arose may, under certain circumstances, be arrested for the institution of an action in rem. Admiralty Jurisdiction Regulation Act 105 of 1983 s 3(6) and (7) General: In prosecuting cargo claims, a thorough understanding of bills of lading and charter-parties is essential. The plaintiff must allege and prove: (a) a title to sue – that is, as owner of the cargo or as holder of the bill of lading; (b) that the goods were delivered to the carrier in good order and condition. This is required by the terms and conditions of the bill of lading; (c) (d)
the contractual obligations of the carrier; that the goods were not delivered, or that they were delivered in a damaged condition, at the port of destination;
(e) the quantum of the damages suffered. PRECEDENTS Claim – for damages 1. Plaintiff is [name]. 2. Defendant is the MV “BB” (herein “the vessel”). 3. At [place] and on [date], the master of the vessel issued a bill of lading no. [number] in respect of [details of cargo] (herein “the cargo”). [Page 19] 4. The bill of lading was endorsed “clean shipped on board” and recorded further that the cargo had been “shipped at the port of loading in apparent good order and condition”. A copy of the bill of lading is annexed hereto and marked “A”, and a copy of its reverse side as “B”.
5. 6.
In terms of the contract of carriage as evidenced by the bill of lading, the owner of the vessel was obliged: (a)
before and at the beginning of the voyage, to exercise due diligence to make the vessel seaworthy, properly to man, equip and supply the vessel, and to make the holds and all the other parts of the vessel in which the cargo was to be carried fit and safe for the reception, carriage and preservation of the cargo;
(b) properly and carefully to load, handle, stow, carry, keep, care for and discharge the cargo; (c) to deliver the cargo to plaintiff as consigned at the port of [name] in the same good order and condition in which it was received. 7. On or about [date] and at [place], pursuant to the terms of the contract, the cargo was loaded on board the vessel in good order and condition. 8. Plaintiff was at all material times the owner of the cargo and the holder of the bill of lading. 9. On [date], the vessel arrived at [name of harbour] and the cargo was discharged. 10. The owner of the vessel breached its obligations in terms of the contract of carriage in that, upon discharge thereof, the cargo was found to have become contaminated by water. As a result, plaintiff has suffered damages in the sum of [Rx], calculated as follows [details]. This Court has jurisdiction to determine plaintiff’s action in rem against the vessel by virtue of the following: (a)
11. 12.
Plaintiff’s claim is a maritime claim in terms of section 1(1)(g) or (h) of the Admiralty Jurisdiction Regulation Act 105 of 1983.
(b) On [date], security was furnished to the plaintiff to prevent the arrest of the vessel, and, in the premises, the vessel is deemed to have been arrested and to be under arrest pursuant to section 3(10) of Act 105 of 1983. WHEREFORE plaintiff claims: (a) (b) (c)
payment of damages in the sum of [Rx]; interest; and costs.
Pleadings/Amlers Precedents of Pleadings/A/Adultery Adultery Related subjects:
ALIENATION OF AFFECTION DIVORCE
Jurisdiction: The jurisdiction of a court is determined according to the principles applicable to delictual claims. The fact that a court has jurisdiction in a matrimonial matter (for example, by virtue of the domicile of the spouses) does not, without more, vest it with jurisdiction against the third party. Van Wyk v Van Wyk 1952 (1) SA 760 (N) Carroll v Menzies 1961 (4) SA 672 (N) Cause of action: The cause of action against the third party is the actio iniuriarum. Viviers v Kilian 1927 AD 449 Foulds v Smith 1950 (1) SA 1 (A) The adultery of the guilty spouse is not a ground for an action for damages against her or him but may be relevant in the context of divorce proceedings. Ex parte AB 1910 TPD 1332 [Page 20]
Consequently, the guilty spouse cannot be interdicted from committing further acts of adultery. It is debatable whether the third party can be so interdicted and it is highly unlikely that, assuming that a remedy does exist, a court would, in the exercise of its discretion, grant such relief. Wassenaar v Jameson 1969 (2) SA 349 (W) at 353 Wrongfulness and animus iniuriandi : It follows that wrongfulness and animus iniuriandi are essential elements of the delict. Extramarital intercourse with a married person is wrongful against the other partner in the marriage. Animus iniuriandi involves knowledge of the wrongfulness (with respect to the marriage) of the sexual intercourse. It is not customary to allege wrongfulness or animus iniuriandi because the use of the term “adultery” incorporates these allegations. Foulds v Smith 1950 (1) SA 1 (A) Degree of particularity: Full particulars of the adultery must be given, unless the plaintiff is unaware of the particulars, in which event the grounds upon which the allegation is based must be set out. This does not mean that the degree of particularity required is greater than that in an ordinary delictual action. Van der Walt v Viviers 1955 (4) SA 10 (T) Louw v Louw 1965 (3) SA 852 (E) Born v Born 1970 (4) SA 560 (C) Cf Uniform rule 18(8) Patrimonial damages: Patrimonial damages can be claimed but, because of difficulties relating to causation and quantum, are generally not claimed. If damages are claimed, full particulars must be given and, unless pleaded, evidence relating thereto is irrelevant and, therefore, inadmissible. Diemer v Solomon 1982 (4) SA 13 (C) at 15 Sentimental damages: General damages in respect of loss of consortium and infliction of contumelia are usually claimed. Particulars relating to quantification need not be given. Diemer v Solomon 1982 (4) SA 13 (C) at 16 Loss of consortium has been defined as the loss of the comfort, society and services of the guilty spouse. Viviers v Kilian 1927 AD 449 at 455 Contumelia relates to the infringement of the plaintiff’s right to privacy, dignity and reputation. In respect of the factors taken into account in calculating damages, see: Bruwer v Joubert 1966 (3) SA 334 (A) Van der Westhuizen v Van der Westhuizen 1996 (2) SA 850 (C) If the plaintiff has condoned the guilty spouse’s adultery, such condonation may mitigate the quantum of damages claimable but does not provide a defence to the claim. Viviers v Kilian 1927 AD 449 Godfrey v Campbell 1997 (1) SA 570 (C) Proof of adultery: It is not necessary to provide corroboration of the alleged adultery. Cf Smit v Arthur 1976 (3) SA 378 (A) [Page 21] PRECEDENTS Claim – based on adultery Plaintiff was married to [name] on [date] at [place]. The marriage still subsists; or
1. 2.
The marriage was dissolved by a decree of divorce on [date] at [place]. 3. On or about [date] at [place], the defendant committed adultery with the plaintiff’s spouse; or Since [date] at [place], the defendant and the plaintiff’s spouse have been living in adultery as husband and wife; or On various occasions and at places, particulars of which are not known to the plaintiff, the defendant and the plaintiff’s spouse have committed adultery, which adultery the defendant admitted to the plaintiff on [date] at [place]. As a result of the adultery, the plaintiff suffered damages, namely: (a) (b)
contumelia inflicted upon the plaintiff [amount]; the loss of the comfort, society and services of the said spouse [amount].
4.
Pleadings/Amlers Precedents of Pleadings/A/Agency Agency Related subjects: ACCOUNTS ESTATE AGENTS ESTOPPEL General: One of the natural incidents of a contract of mandate is that the agent is obliged, first, to fulfil the agreed functions faithfully, honestly, and with care and diligence and, second, to account to the principal for the actions taken. David Trust v Aegis Insurance Co Ltd [2000] 2 All SA 297 (A); 2000 (3) SA 289 (SCA) A person is able to contract in more than one capacity by, for instance, contracting with her- or himself as agent for a company. Vaal Reefs Exploration & Mining Co Ltd v Burger [1999] 4 All SA 253 (A); 1999 (4) SA 1161 (SCA) Mandate: A party who wishes to rely on an agency must allege and prove the existence and scope of the authority of the alleged agent, whether express or implied. Potchefstroomse Stadsraad v Kotze 1960 (3) SA 616 (A) Scala Café v Rand Advance (Pty) Ltd 1975 (1) SA 28 (N) Glofinco v ABSA Bank Ltd t/a United Bank 2001 (2) SA 1048 (W) at 1059 Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA) The fact that the alleged agent purported to act as an agent does not assist in proving an agency. Van Niekerk v Van den Berg 1965 (2) SA 525 (A) at 537 A denial of authority must be specifically and unambiguously pleaded. Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) Tuckers Land & Development Corp (Pty) Ltd v Perpellief 1978 (2) SA 11 (T) at 16 [Page 22] The authority of an agent is a question of fact – ie, it must be actual – although a party may, in particular circumstances, rely on an ostensible authority. Inter-Continental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd 1979 (3) SA 740 (W) Actual authority is either express or implied (tacit). Coetzer v Mosenthals Ltd 1963 (4) SA 22 (A) Tuckers Land & Development Corp (Pty) Ltd v Perpellief 1978 (2) SA 11 (T) at 14 Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C); 2001 (1) SA 313 (C) NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (A); 2002 (1) SA 396 (SCA) If reliance is placed on an ostensible authority, the elements of estoppel must be alleged, including a representation by the alleged principal and the necessary causation. Inter-Continental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd 1979 (3) SA 740 (W) at 749 Beyleveld NO v Southern Life Association Ltd 1987 (4) SA 238 (C) at 248 (overruled on the facts by Southern Life Association Ltd v Beyleveld NO 1989 (1) SA 496 (A), which emphasises that to constitute an estoppel the representation must be unambiguous) Because estoppel can only be raised as a defence, a plaintiff intending to rely on estoppel is well advised to allege an actual authority and, in the replication, to rely on estoppel as an alternative. An allegation that a contract was entered into between two parties carries with it the implication that they were not represented by agents but acted personally. Erasmus v Venter 1953 (3) SA 828 (O) If the contract was entered into on behalf of a party, the representative must be identified. Uniform rule 18(6) An allegation that a certain person “acted on behalf of ” a party is a sufficient allegation of agency. Lind v Spicer Bros (Africa) Ltd 1917 AD 147 Formalities: A donor’s agent must be authorised in writing in the presence of two witnesses. General Law Amendment Act 50 of 1956 s 5 No formalities have been prescribed for a surety’s agent. General Law Amendment Act 50 of 1956 s 6 An agent to a deed of alienation of land must be appointed in writing. Alienation of Land Act 68 of 1981 s 2(1) See : ALIENATION OF LAND
The agent as a party: An agent has, in general, no locus standi to sue or be sued on the principal obligation between the principal and the other party. SWA Amalgameerde Afslaers (Edms) Bpk v Louw 1956 (1) SA 346 (A) Sentrakoop Handelaars Bpk v Lourens 1991 (3) SA 540 (W) Myburgh v Walters NO 2001 (2) SA 127 (C) at 130 The agent may sue in its own name if the agent acted as principal by not disclosing the agency. Ibid [Page 23] An agent may also maintain an action on a contract in respect of which the agent acquired rights in its own name. Continental Illinois National Bank & Trust Co of Chicago v Greek Seamen’s Pension Fund 1989 (2) SA 515 (D) at 538 If an agent acts for an undisclosed principal, such agent may be sued in its own name instead of the principal. Ncqula v Muller’s Book Shop 1960 (4) SA 300 (E) Commission: In order to recover remuneration or commission for the performance of the mandate, an agent must allege and prove: (a)
the contract of mandate; Da Silva v Janowski 1982 (3) SA 205 (A)
(b) an undertaking to pay remuneration. In the absence of any agreement, an agreement to pay customary or reasonable remuneration may be implied; Middleton v Carr 1949 (2) SA 374 (A) (c) due performance of the mandate. See : ESTATE AGENTS Ratification: A party can ratify an unauthorised act, provided: (a) the so-called agent professed to act on its behalf; Durity Alpha (Pty) Ltd v Vagg 1991 (2) SA 840 (A) Cf Keystone Trading Co v Die Verenigde &c Mij 1926 TPD 218 (b) the matter is still res integra – that is, performance can still take place; (c) vested rights are not affected Smith v KwaNonqubela Town Council [1999] 4 All SA 331 (A); 1999 (4) SA 947 (SCA) See, in general: Mort NO v Chiat [2000] 2 All SA 515 (C); 2001 (1) SA 464 (C) Termination of agency: Generally, a principal may freely terminate the authority conferred upon an agent, even if the mandate purports to be irrevocable. In the latter instance, the principal may be liable for damages for breach of contract, but the erstwhile agent may no longer bind the principal. Pretorius v Erasmus 1975 (2) SA 765 (T) The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 1984 (2) SA 881 (A) Consolidated Frame Cotton Corp Ltd v Sithole 1985 (2) SA 18 (N) at 22 The general rule does not apply if the authority is coupled with an interest. Ward v Barrett NO 1985 (2) SA 732 (N) at 737 Lusizi v Transnet Ltd t/a Spoornet [2002] 3 All SA 635 (C) A mandate automatically terminates when any change of status occurs, such as death or insolvency. Goodricke & Son v Auto Protection Insurance Co Ltd (in liquidation) 1968 (1) SA 717 (A) at 722 Mort NO v Chiat [2000] 2 All SA 515 (C); 2001 (1) SA 464 (C) Secret commission and profit: An agent who accepts, or agrees to accept, a secret commission forfeits the right to remuneration and is liable in damages for any loss sustained by the principal and is, furthermore, liable to account for any profits to the principal. Hargreaves v Anderson 1915 AD 519 Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 Mallinson v Tanner 1947 (4) SA 681 (T) [Page 24] Accounting: A claim for an account against an agent is permissible. See : ACCOUNTS Bribery: Bribery occurs when someone gives or promises to the agent of another a gift or remuneration, without the knowledge of the principal, with a view to influencing the agent in order to gain an advantage.
Plaaslike Boeredienste (Edms) Bpk v Chemfos Bpk 1986 (1) SA 819 (A) at 845 A contract entered into by a bribed agent is unenforceable against the will of the innocent principal. Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd [1998] 4 All SA 465 (A); 1999 (2) SA 719 (SCA) The elements of commercial bribery are: (a) a reward (b) paid or promised (c) by one party, the briber, (d) to another, the agent (who may be an agent in the true sense or merely a go-between or facilitator), (e) who is able to exert influence over (f) a third party, the principal (g) with the intention that the agent (h) should induce the principal (i) without the principal’s knowledge and (j) for the direct or indirect benefit of the briber (k) to enter into or maintain or alter a contractual relationship (l) with the briber, her or his principal, associate or subordinate. Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd [1998] 4 All SA 465 (A); 1999 (2) SA 719 (SCA) Vicarious liability: A principal may be vicariously liable for the wrongful acts of the agent even if the agent thereby also committed a fraud against the principal. Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 (4) SA 363 (A) See : VICARIOUS LIABILITY Implied warranty of authority: If a person represents that he or she is authorised to act as an agent when, in fact, not so authorised (or if the authorisation is limited to exclude the relevant act), the purported agent will be liable for damages arising from the breach of an implied warranty of authority. The lack of authority does not make the agent a party to the contract. Blower v Van Noorden 1909 TS 890 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) Indrieri v Du Preez 1989 (2) SA 721 (C) The following must be alleged and proved by the plaintiff: (a) (b)
(c)
a representation of authority; that the representation was false. A repudiation of liability by the alleged principal may establish prima facie that the representation was false; Calder-Potts v McMillan 1956 (3) SA 360 (E) the conclusion of a contract with the “agent” in that capacity;
[Page 25] (d) that the representation induced the conclusion of a contract. The representation of authority and the conclusion of a contract give rise to an inference of such an inducement; Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 412 (e) the damages suffered as a result of the conclusion of a futile contract.
PRECEDENTS Claim – for commission 1. On [date] at [place], the parties entered into a written agreement in terms of which the defendant engaged the plaintiff to act as his agent to sell certain hardware goods for defendant, and the defendant undertook to pay to the plaintiff a commission of [percentage] on all such sales. A copy of the agreement is attached hereto and marked “A”. 2. During the period [date] to [date], the plaintiff, acting pursuant to the aforesaid agreement, effected certain sales of such hardware goods on the defendant’s behalf amounting in all to the sum of [amount]. Details of these sales appear more fully from Annexure “B” hereto. In the premises, the defendant owes the plaintiff [amount] as commission.
3.
Claim – to render account 1. On [date] at [place], the plaintiff orally instructed the defendant to collect and to receive from [name(s)] payment of certain sums of money due to the plaintiff by them. Details of such persons and the sums that were to be collected are contained in Annexure “A” hereto. 2. Acting on the instructions and during the period [state period], the defendant collected and received from such persons (or from some of them) various sums of money for and on behalf of the plaintiff. The amount thereof is unknown to the plaintiff. 3. It was an express [implied] term of the agreement between the parties that the defendant would, from time to time, render to the plaintiff accounts supported by vouchers in respect of the amounts collected by him and would pay such amounts over to the plaintiff within a reasonable time of collection. 4. Despite demand, the defendant refused to render an account to the plaintiff of any of the moneys so collected and refused to pay over to the plaintiff any such moneys. WHEREFORE plaintiff claims: (a) An order directing the defendant to render an account, duly supported by vouchers, of the amounts collected and received by him on the plaintiff’s behalf during [state period]. (b) (c)
A debate of the account. Payment to the plaintiff of any amount found to be due to him.
Claim – for damages against agent 1. On [date] at [place], the parties entered into an oral agreement in terms of which the plaintiff appointed the defendant as his agent to [state terms of mandate]. 2. It was an implied term of the agreement that the defendant would perform this mandate with due care and without negligence. 3. Despite the aforesaid term and during the course of the performance of his mandate, the defendant orally represented to [A] that [state nature of representation]. 4. The representation, which was not authorised by the plaintiff and of which the plaintiff had no knowledge, was material and was made by the defendant with the intention of inducing [A] to act thereon, and [A], relying on the truth of such representation, did act thereon by [detail]. [Page 26] 5. The said representation was, to the knowledge of the defendant, false. [Or: Defendant was negligent in making the representation without ascertaining its truth and such representation was false.] 6.
As a consequence of the misrepresentation, [A] repudiated the sale and claimed damages from the plaintiff in the amount of [amount]. 7. On [date], the [court] awarded [A] an amount of damages against the plaintiff, arising from the aforesaid misrepresentation, in the amount of [amount]. As a result, the plaintiff suffered damages in the amount of [amount].
8.
Claim – against a principal for breach of mandate 1. On [date] at [place], the defendant orally gave the plaintiff a mandate to sell the defendant’s [describe object] at a sum of not less than [amount] and the defendant undertook to pay commission to the plaintiff at the rate of [percentage] on the selling price. 2. It was a term of the aforesaid mandate that the plaintiff would have the sole right to sell the [object] for a period of [days], expiring on [date]. 3. Thereafter, on [date] and prior to the expiration of the said period, the defendant, through the instrumentality of another agent, [name], appointed by him in breach of the said term, sold the [object] for the sum of [amount] to [name]. 4. As a consequence of the defendant’s breach of contract, the plaintiff was prevented from fulfilling his mandate and earning his commission and sustained damages in the amount of [Rx]. Claim – on implied warranty of authority 1. On [date] at [place], the defendant orally represented himself to be the agent of one [AB] and thereby induced the plaintiff, acting upon the truth of the representation, to enter into a written agreement with him as such agent for the sale by the plaintiff to [AB] of [property] at the price of [amount]. 2. Defendant, by such representation, impliedly warranted to the plaintiff that he was authorised by [AB] to enter into the agreement as agent on behalf of [AB]. 3. Defendant was in fact never authorised by [AB] to enter into such agreement as agent on his behalf and, on [date], [AB] orally repudiated the agreement. Consequently, the plaintiff was not able to enforce the agreement and suffered damages in the amount of [Rx] calculated as follows: [detail]. Claim – for forfeiture of commission 1. On [date] at [place], the parties entered into an oral agreement in terms of which the defendant was orally engaged by the plaintiff as his agent on commission to purchase maize for and on behalf of the plaintiff. 2. During the subsistence of the agency, the defendant purchased 2 000 bags of maize from one [AB] and, in effecting such purchase, secretly and corruptly received for himself from [AB] a commission of [amount], which amount the defendant refuses to pay over to the plaintiff. 3. In consequence of the aforesaid, the defendant forfeited his right to receive commission from the plaintiff. WHEREFORE plaintiff claims: (a) (b)
Payment of the amount of [amount]. An order declaring that the defendant forfeited his right to receive commission from the plaintiff.
Replication – estoppel 1. In the event of the court’s finding that [X] was not duly authorised to represent the defendant, the plaintiff replicates as follows: [Page 27] (a) on [date], the defendant informed the plaintiff that he had employed [X] as his general manager and that [X] would in future be responsible for running the defendant’s business;
(b) the agreement entered into between the parties falls within the normal business of the defendant; (c) the plaintiff was induced by this representation to believe that [X] was duly authorised to enter into the agreement on behalf of the defendant and, acting on the strength of this belief, entered into the agreement. 2. Defendant is accordingly estopped from denying that [X] had the authority to represent him. 3. In every other respect, the plaintiff joins issue with the defendant on the allegations made in the plea. Pleadings/Amlers Precedents of Pleadings/A/Alienation of Affection Alienation of Affection Related subjects: ADULTERY DIVORCE Cause of action: The cause of action against the third party is the actio iniuriarum. Jurisdiction: The jurisdiction of the court is determined according to the principles applicable to delictual claims and not those applicable to divorce actions. Wrongfulness: Wrongful interference with the marriage relationship consists of an act of enticement, persuasion or coaxing. Smit v Arthur 1976 (3) SA 378 (A) at 387 Gower v Killian 1977 (2) SA 393 (E) The action protects the existing consortium between the married parties – that is, the totality of the rights, duties and advantages flowing from the marriage. Grobbelaar v Havenga 1964 (3) SA 522 (N) Animus iniuriandi : Animus iniuriandi is an essential element. It is difficult to conceive how there could be an enticement to leave the plaintiff without the necessary intent. Degree of particularity: The plaintiff may rely on the cumulative effect of a series of facts for this conclusion. Grobbelaar v Havenga 1964 (3) SA 522 (N) at 527 Damages: See : ADULTERY Proof of enticement: Although the onus of proof is the ordinary civil onus, it is a “very considerable onus” to discharge because the guilty parties are normally attracted to one another and come together by their own inclination and desire. Wassenaar v Jameson 1969 (2) SA 349 (W) at 352 Smit v Arthur 1976 (3) SA 378 (A) Related cause of action: This claim is normally an alternative to a claim for damages based upon adultery. An alternative claim could be based on harbouring. Woodiwiss v Woodiwiss 1958 (3) SA 609 (D) [Page 28] Defences: The claim will be defeated if the defendant can show (without bearing an onus) that: (a) the spouse had good reason to leave the plaintiff (for example, where the plaintiff subjected the spouse to illtreatment), or (b)
the defendant did not have the necessary wrongful intent because of a belief, albeit incorrect, that the spouse had good reason to leave the plaintiff.
PRECEDENTS Claim – based on alienation of affection 1. Plaintiff was married to [name] on [date] at [place]. 2. The marriage still subsists; or The marriage was dissolved by a decree of divorce on [date] at [place].
3. During or about [date/period] at [place], the defendant wrongfully and intentionally enticed and persuaded the plaintiff’s spouse to desert the marital home and to live with the defendant. 4. As a result of the enticement and persuasion, the plaintiff’s spouse deserted the marital home on [date] and began to reside with the defendant. 5. As a further result, the said marriage relationship has irretrievably broken down [and has resulted in the aforesaid divorce]. As a result of the foregoing, the plaintiff suffered damages, namely: (a) (b)
6.
contumelia inflicted upon the plaintiff [amount]; the loss of the affection, comfort, society and services of the said spouse [amount].
Plea – to a claim based on alienation of affection Defendant admits that he enticed the plaintiff’s said spouse to desert the marital home but denies that he acted wrongfully or intentionally because: (a) he was justified in so doing since the plaintiff had assaulted the said spouse regularly; (b) alternatively, in the event that it is found that the defendant was not so justified, he bona fide believed that the plaintiff did so assault the said spouse and the defendant consequently bona fide believed that he was justified in enticing the said spouse. Pleadings/Amlers Precedents of Pleadings/A/Alienation of Land Alienation of Land Related subjects: DONATION EVICTION OR EJECTION RECTIFICATION SALE SALE OF LAND ON INSTALMENTS Definitions: The alienation of land is governed by the provisions of the Alienation of Land Act 68 of 1981. The concept of “alienation” as defined in the Act includes a sale, exchange or donation, irrespective of whether such sale, exchange or donation is subject to a suspensive or resolutive condition. Hoeksma v Hoeksma 1990 (2) SA 893 (A) Leonard Light Industries (Pty) Ltd v Wright 1991 (4) SA 628 (W) at 633 Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N) [Page 29] “Land” is widely defined and includes a sectional title unit, a right to claim transfer of land, an undivided share in land and an interest in land. Formalities: Alienation of land must be contained in a deed of alienation which must be signed by the parties thereto or by their agents acting on their written authority. The written authority apparently need not be signed. Hugo v Gross 1989 (1) SA 154 (C) Van der Merwe v DSSM Boerdery BK 1991 (2) SA 320 (T) at 329 SAI Investments v Van der Schyff NO 1999 (3) SA 340 (N) The only exception is a sale of land by public auction. Alienation of Land Act 68 of 1981 s 2 and 3 A party relying on a contract of alienation of land must allege and prove a valid contract. The material terms of the contract, including those prescribed by statute, must be in writing. Trustees, Mitchell’s Plain Islamic Trust v Weeder [2001] 2 All SA 629 (C) Sayers v Khan [2002] 1 All SA 57 (C); 2002 (5) SA 688 (C) The following must appear ex facie the document: (a)
(b)
the parties to the contract; Berman v Teiman 1975 (1) SA 756 (W)
a sufficient description of the property to enable one to identify it without reference to inadmissible evidence. In other words, it must be possible, by applying the ordinary rules for the construction of contracts and by admitting such evidence, to interpret the contract as is admissible under the parol evidence rule. Clements v Simpson 1971 (3) SA 1 (A) Headermans (Vryburg) (Pty) Ltd v Ping Bai [1997] 2 All SA 371 (A) at 376; 1997 (3) SA 1004 (A) at 1008–1009 Kriel v Le Roux [2000] 2 All SA 65 (SCA) Vermeulen v Goose Valley Investments (Pty) Ltd [2001] 3 All SA 350 (A); 2001 (3) SA 986 (SCA) (c) the price; Patel v Adam 1977 (2) SA 653 (A) For a qualification, see NBS Boland Bank v One Berg River Drive; Deeb v ABSA Bank Ltd; Friedman v Standard Bank of SA Ltd [1999] 4 All SA 183 (A); 1999 (4) SA 928 (SCA) (d)
the right of a purchaser or prospective purchaser to revoke the offer or terminate the deed of alienation in terms of section 29A. Alienation of Land Act 68 of 1981 s 2(2A) Sayers v Khan [2002] 1 All SA 57 (C); 2002 (5) SA 688 (C)
It should be noted that, under certain circumstances, the sale of a portion of agricultural land is void unless the minister in writing consents thereto. Subdivision of Agricultural Land Act 70 of 1970 ss 2 and 3. This Act is to be repealed when the Subdivision of Agricultural Land Act Repeal Act 64 of 1998 comes into force. Extrinsic evidence may be permissible to establish that a deed of alienation does not comply with the provisions of the statute – for instance, by showing that a material term agreed upon is not contained in the deed. Philmatt (Pty) Ltd v Mosselbank Developments CC [1996] 1 All SA 296 (A); 1996 (2) SA 15 (SCA) [Page 30] Incorporation by reference: The terms of the deed of alienation may be supplemented by means of the incorporation of another document. In this way, a deed of alienation can be made to comply with statutory requirements. Van Wyk v Rottcher’s Mills (Pty) Ltd 1948 (1) SA 983 (A) at 990 Industrial Development Corporation of SA (Pty) Ltd v Silver [2002] 4 All SA 316 (SCA) Variation: Variation of a material term of the deed of alienation must comply with the prescribed formalities. Sidali v Mpolongwana 1990 (4) SA 212 (C) Bailes v Highveld 7 Properties (Pty) Ltd [1998] 3 All SA 205 (N); 1998 (4) SA 42 (N) Cancellation: There are no formalities prescribed by statute for valid cancellation by agreement or for the reinstatement of a cancelled deed of alienation. Neethling v Klopper 1967 (4) SA 459 (A) Revocation by purchaser: A purchaser or prospective purchaser of land may, subject to exceptions, within five days of signing an offer to purchase land or a deed of alienation in respect of land, revoke such offer or terminate such deed of alienation, as the case may be, by written notice delivered to the seller or to the seller’s agent within that period. Alienation of Land Act 68 of 1981 s 29A Waiver: The waiver by any person, who has purchased land in terms of a deed of alienation, of any right conferred upon her or him by the Act is null and void. Alienation of Land Act 68 of 1981 s 29 Rectification: If the deed does not reflect the intention of the parties correctly, it may be rectified. If, on its face, the document is void for non-compliance with the statute, rectification cannot be granted. See : RECTIFICATION Full or partial performance: If both parties to an invalid deed of alienation have performed in full, the alienation is deemed to have been valid ab initio. Alienation of Land Act 68 of 1981 s 28(2) If the deed is invalid, any person who performed partially or in full is entitled to recover from the other party that which the former performed, unless there has been performance in full by both parties. In addition, the purchaser may claim interest at a prescribed rate and reasonable compensation for certain expenses and improvements and the seller may recover reasonable compensation for the occupation, use and enjoyment of the property, and compensation for damages caused either intentionally or negligently. Alienation of Land Act 68 of 1981 s 28(1) PRECEDENTS Claim – for payment 1. On [date] at [place], the parties entered into a written agreement in terms of which the plaintiff sold to the defendant a dwelling house situate at [place] for the sum of [amount]. A copy of the agreement is attached hereto and marked “A”.
[Page 31] In terms of Annexure “A”, the purchase price was payable in the following way: [detail].
2.
3. Despite demand and despite tender by the plaintiff to cause registration of the property in the defendant’s name, the defendant has failed or refused to make payment of the purchase price on due date. 4. Plaintiff repeats the tender as aforesaid against payment of the purchase price. WHEREFORE the plaintiff claims: Payment of [amount] against transfer of the said property in the name of the defendant. Claim – for damages 1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff sold to defendant a property situate at [address] for the sum of [amount]. A copy of the agreement is attached hereto and marked “A”. In terms of Annexure “A”, the purchase price was payable in the following way: [detail].
2.
3. Defendant refused to make payment of the purchase price and on [date] at [place] denied that he is liable to do so. 4. Defendant has, therefore, repudiated the agreement between the parties and the plaintiff has elected to cancel the agreement between the parties and hereby gives notice of cancellation. 5. As a result of defendant’s repudiation, plaintiff suffered damages in the amount of [Rx] made up as follows: [detail]. WHEREFORE plaintiff claims: Payment of the amount of [amount]. Plea – of invalidity Defendant admits that the parties purported to enter into a written deed of sale as alleged.
1.
2. Defendant pleads that the deed of sale is invalid in that it does not comply with the requirements of sections 2 and 3 of Act 68 of 1981 in the following respects: [detail] the description of the property is insufficient to identify it because [detail]; the right of the purchaser or prospective purchaser to revoke the offer or terminate the deed of alienation in terms of section 29A is not contained therein as required by section 2(2A) of the Act; the following suspensive condition, which is material to the agreement and was agreed to by the parties, is not contained in the deed of alienation [detail]. 3. In the premises, the defendant pleads that the deed of sale signed by the parties is void and of no force and effect and therefore denies that any amount is due and owing to plaintiff. Pleadings/Amlers Precedents of Pleadings/A/Animals Animals See :
ACTIO DE PASTU ACTIO DE PAUPERIE WILD ANIMALS
Pleadings/Amlers Precedents of Pleadings/A/Arbitration Arbitration Related subjects:
ARCHITECTS LOCATIO CONDUCTIO OPERIS General: Arbitration is a procedure whereby a dispute between parties is determined extracurially. Certain statutes provide for compulsory arbitration but we are here concerned with arbitration pursuant to a written contract that provides for the reference to arbitration of a present or future dispute [Page 32] relating to matters specified in the contract, whether or not an arbitrator is named or designated therein. Arbitration Act 42 of 1965 s 1 SA Transport Services v Wilson NO 1990 (3) SA 333 (W) at 340 Nyoka v Legal Aid Board [1997] 4 All SA 593 (E) The functions of an arbitrator are not administrative but judicial in nature. Total Support Management (Pty) Ltd v Diversified Health Systems (SA) (Pty) Ltd 2002 (4) SA 661 (SCA) Jurisdiction: The jurisdiction of an arbitrator is described and delimited by the terms of the arbitration agreement. He or she has no power to decide any issue not therein circumscribed. Not every clause in a contract that provides for the decision of a dispute by a third party rather than a court is an arbitration clause. Schuldes v Compressor Valves Pension Fund 1980 (4) SA 576 (W) The third party may be a valuer, mediator or referee and not an arbitrator. Hoffman v Meyer 1956 (2) SA 752 (C) Estate Milne v Donohoe Investments (Pty) Ltd 1967 (2) SA 359 (A) Chelsea West (Pty) Ltd v Roodebloem Investments (Pty) Ltd 1994 (1) SA 837 (C) at 843 Watt v Sea Plant Products Ltd [1998] 4 All SA 109; 1999 (4) SA 443 (C) A valuer does not act in a judicial capacity but, through the exercise of her or his own judgement and skill, decides the issues submitted. Perdikis v Jamieson [2002] 4 All SA 560 (W); 2002 (6) SA 356 (W) Effect of arbitration clause: An agreement to arbitrate does not deprive the court of its jurisdiction over the dispute encompassed by the agreement. An arbitration agreement is, therefore, not an automatic bar to legal proceedings in ordinary courts. Should a party institute proceedings in a competent court, in spite of the arbitration agreement, the defendant has two options: (a) to apply for a stay of the proceedings in terms of section 6. This application must be brought before the delivery of any pleadings by the defendant or the taking of any other step in the proceedings; or Conress (Pty) Ltd v Gallic Construction (Pty) Ltd 1981 (3) SA 73 (W) (b) to pray in a special plea in the nature of a dilatory plea for the stay of the proceedings pending the final determination of the dispute by the appointed arbitrator. Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C) Stocks Construction (OFS) (Pty) Ltd v Metter-Pingon (Pty) Ltd 1978 (4) SA 35 (T) GK Breed (Bethlehem) (Edms) Bpk v Martin Harris & Seuns (OVS) (Edms) Bpk 1984 (2) SA 66 (O) Exception: A party cannot except to a claim brought in a court of law on the grounds that the issue must be tried by an arbitrator. This is the position even if the existence of the arbitration clause appears from the plaintiff’s particulars of claim. Parekh v Shah Jehan Cinemas (Pty) Ltd 1980 (1) SA 301 (D) A stay of action for purposes of arbitration will not be granted unless there is a genuinely triable issue between the parties. Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221 (C) As to the general approach to an application for a stay of proceedings, see: Altech Data (Pty) Ltd v MB Technologies (Pty) Ltd 1998 (3) SA 748 (W) [Page 33] Onus: A party who wishes to rely on an arbitration clause must allege and prove the underlying jurisdictional facts: Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C) at 567; 1998 (4) SA 606 (C) at 615 (a) the existence of the arbitration clause or agreement which must be in writing (but not necessarily signed); Mervis Brothers v Interior Acoustics 1999 (3) SA 607 (W) (b)
that the arbitration clause or agreement is applicable to the dispute between the parties; Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (A) Universiteit van Stellenbosch v JA Louw (Edms) Bpk 1983 (4) SA 321 (A) Stocks Construction (OFS) (Pty) Ltd v Metter-Pingon (Pty) Ltd 1980 (1) SA 507 (A)
(c) that there exists a dispute between the parties, which dispute must be demarcated in the special plea. Parekh v Shah Jehan Cinemas (Pty) Ltd 1980 (1) SA 301 (D) at 306
Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221 (C) Withinshaw Properties (Pty) Ltd v Dura Construction Co (SA) (Pty) Ltd 1989 (4) SA 1073 (A) It is not necessary for the defendant to allege a readiness or willingness to arbitrate; and Stanhope v Combined Holdings & Industries Ltd 1950 (3) SA 52 (E) (d) that all the preconditions contained in the agreement for the arbitration have been complied with. Richtown Construction Co (Pty) Ltd v Witbank Town Council 1983 (2) SA 409 (T) Santam Insurance Ltd v Cave 1986 (2) SA 48 (A) Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T) Onus: The party resisting the stay of court proceedings bears the onus (which is not easily discharged) to convince the court that, due to exceptional circumstances, the stay should be refused. In other words, courts will enforce an agreement to arbitrate unless there are compelling reasons for them to order otherwise. Polysius (Pty) Ltd v Transvaal Alloys (Pty) Ltd 1983 (2) SA 630 (W) Transvaal Alloys (Pty) Ltd v Polysius (Pty) Ltd 1983 (2) SA 653 (T) Altech Data (Pty) Ltd v MB Technologies (Pty) Ltd 1998 (3) SA 748 (W) Termination: An arbitration agreement can be terminated only by the consent of all the parties, unless the arbitration agreement itself provides otherwise. This means that the cancellation of the contract pursuant to a breach does not terminate the operation of the arbitration clause. Arbitration Act 42 of 1965 s 3(1) Gardens Hotel (Pty) Ltd v Somadel Investments (Pty) Ltd 1981 (3) SA 911 (W) The cancellation of a contract brings to an end its primary obligations but does not necessarily terminate the arbitration clause. Atteridgeville Town Council v Livanos t/a Livanos Brothers Electrical 1992 (1) SA 296 (A) Invalidity of the arbitration agreement: If the arbitration agreement itself is alleged to be void and the arbitrator’s alleged jurisdiction is based solely on that agreement, the arbitrator has no jurisdiction to consider the invalidity of the agreement or the question of jurisdiction. Van Heerden v Sentrale Kunsmis Korp (Edms) Bpk 1973 (1) SA 17 (A) [Page 34] Pleadings in arbitration proceedings: The Arbitration Act does not prescribe pleadings for arbitration proceedings. Arbitration proceedings may be held without any pleadings, by virtue of an oral formulation of the issues or in terms of a stated case prepared by all the parties. If the arbitration proceedings are to be conducted in a formal manner, the parties normally agree upon the exchange of pleadings. The pleadings usually take the form of court pleadings. The award: The award of an arbitrator is a final adjudication of the dispute between the parties and the award can be raised in a plea of res iudicata. Any award (including a foreign award) may, on application to a high court of competent jurisdiction, be made an order of court and will then be enforceable as such. Although, as a general rule, only a final award will be enforced, this rule is dependent upon the terms of the arbitration contract. Arbitration Act 42 of 1965 s 31(1) Stocks & Stocks (Cape) (Pty) Ltd v Gordon NO 1993 (1) SA 156 (T) overruling Blue Circle Projects (Pty) Ltd v Klerksdorp Municipality 1990 (1) SA 469 (T) Irish & Co Inc (now Irish & Menell Rosenberg Inc) v Kritzas 1992 (2) SA 623 (W) Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T) Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 Seton Co v Silveroak Industries Ltd 2000 (2) SA 215 (T) For it to be binding, the award must fall within the arbitrator’s area of competence as defined in the agreement. Kroon Meule CC v Wittstock t/a JD Distributors; Wittstock t/a JD Distributors v De Villiers 1999 (3) SA 866 (E) The rules applicable to the interpretation of a judgment apply to the interpretation of an arbitrator’s award. Frankel Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc [1996] 2 All SA 495 (A) at 503–504; 1996 (3) SA 355 (SCA) PRECEDENTS Special plea – of arbitration clause Plaintiff’s claim arises from a written contract between the parties.
1.
2. Clause 34 of that agreement provides that any dispute between the parties must be referred to arbitration conducted by a nominated arbitrator. 3. Inasmuch as the defendant disputes the plaintiff’s claim and has, prior to the institution of action, informed the plaintiff of such dispute, the plaintiff’s claim is in dispute as envisaged in this clause. Plaintiff has not referred the dispute to arbitration.
4.
5. Defendant prays that the plaintiff’s action be stayed, pending the final determination of the dispute by the arbitrator in terms of the agreement. [See : SPECIAL PLEAS] [Page 35] Pleadings/Amlers Precedents of Pleadings/A/Architects Architects Related subjects:
AGENCY ARBITRATION LOCATIO CONDUCTIO OPERIS PROFESSIONAL LIABILITY
General: The Architectural Profession Act 44 of 2000 applies to a number of categories of persons involved in the architectural profession and requires that they be registered to perform any kind of work falling within any such category. Architectural Profession Act 44 of 2000 s 18 Since it is an offence to practise if not registered, it is safe to assume that an unregistered person will not be able to claim remuneration for work done. The Act provides that regulations may be made containing guideline professional fees. It no longer provides that an architect is entitled, in the absence of an agreement with a particular client, to the fees prescribed in the tariff. Architectural Profession Act 44 of 2000 s 34 The nature of the relationship between an architect and the employer is not one of service but of work. Marais v Bezuidenhout 1999 (3) SA 988 (W) Fees: In order to recover fees for professional services rendered, an architectural professional must allege and prove: (a) that he or she is a registered architectural professional; (b) the mandate and its terms; Esbach v Steyn 1975 (4) SA 503 (A) (c)
(d)
the completion of the mandate according to its terms and in a proper and workmanlike manner; Nicolaides v Skordis 1973 (2) 730 (N) Maw v Keith-Reed 1975 (4) SA 603 (C) Du Plessis v Strydom 1985 (2) SA 142 (T) Wilkens Nel Argitekte v Stephenson 1987 (2) SA 628 (O) an undertaking by the employer (client) to pay for the work. The undertaking may be express or implied. If nothing was said, the implication may be that fees would be payable in terms of the guidelines. If in issue, the onus rests upon the plaintiff to prove that nothing was said about fees. Eaton & Louw v Arcade Properties (Pty) Ltd 1961 (4) SA 233 (T); 1962 (3) SA 255 (A)
The plaintiff need not tender the drawings. Shenfield v Murgatroyd 1954 (2) SA 241 (N) Agency: The architectural professional is usually the employer’s agent in respect of the issuing of certificates and instructions in terms of the building contract. The effect is that a proper payment certificate is equivalent to an acknowledgement of debt signed by the employer. Smith v Mouton 1977 (3) SA 9 (W) Hoffman v Meyer 1956 (2) SA 752 (C) Rocade Developments (Pty) Ltd v Van Vüren & Trathen (Pty) Ltd 1997 (3) SA 494 (W) at 503 [Page 36] In addition to any express authority, the professional has implied authority to do whatever is normally and reasonably incidental to the performance of that which he or she has been employed to do in the course of the contract. Smith v Mouton 1977 (3) SA 9 (W) at 18 The professional may not, in the absence of a specific authority, enter into a contract on behalf of the employer or amend the contract with the builder. O’Connell, Manthe, Cragg & Partners v Charles 1970 (1) SA 7 (E) Repudiation by employer: The architectural professional remains entitled to remuneration for work done even if the employer decides not to proceed with the project, provided that the work that was done was done properly and in accordance with the employer’s instructions.
De Zwaan v Nourse 1903 TS 814 Certificates: An architect’s certificate duly issued in terms of the building contract binds the employer to pay the amount stated therein within the time limit provided for in the contract. This also applies to an interim certificate. The contractor is entitled to sue for payment upon the expiry of the time limit, without any further steps. Mouton v Smith 1977 (3) SA 1 (A) Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens; Qwa Qwa Regeringsdiens v Martin Harris & Seuns OVS (Edms) Bpk [2000] 2 All SA 72 (A); 2000 (3) SA 339 (SCA) par 37 This does not mean that the employer cannot raise one of a limited number of relevant defences, such as a term of the contract, which provides for payment on other conditions, for cancellation of the contract or fraud. Thomas Construction (Pty) Ltd (in liq) v Grafton Furniture Manufacturers (Pty) Ltd 1988 (2) SA 546 (A) at 562 A negligent or innocent misrepresentation by the contractor relating to the issuing of the certificate is not a defence to a certificate. Ocean Diners (Pty) Ltd v Golden Hill Construction CC 1993 (3) SA 331 (A) at 340E–G, 344B–G Provisional sentence can be granted on a payment certificate because the certificate represents an acknowledgement of debt signed by the employer’s duly authorised agent. The building contract, which authorises the architect to issue the certificate, need not be attached to the provisional sentence summons. LTA Construction Ltd v KwaZulu-Natal Provincial Administration [1997] 1 All SA 503 (N); 1997 (1) SA 633 (N) The certificate is often a condition precedent for payment by the employer. Should the architect refuse or fail to issue a certificate, the contractor’s remedy is to obtain an arbitration award in terms of the contract. Provincial Building Society of SA v PR Wade & Co (Pty) Ltd (in liq) 1967 (1) SA 121 (N) Smith v Mouton 1977 (3) SA 9 (W) contains a summary of the rules relating to certificates, which rules include the following: (a) The architect is nominated by the employer and in issuing certificates acts as the agent of the employer. The architect does not act as a quasi arbitrator. Universiteit van Stellenbosch v JA Louw (Edms) Bpk 1983 (4) SA 321 (A) [Page 37] (b)
The employer is bound by the act of the architect in issuing certificates. The signing of a certificate is tantamount to the signing of an acknowledgement of debt.
(c) As a general rule, an employer may not dispute the correctness of a final certificate. Ocean Diners (Pty) Ltd v Golden Hill Construction CC 1993 (3) SA 331 (A) (d)
The employer is bound to pay in accordance with the tenor of an interim certificate issued in terms of the contract. It is apparently not a defence that the work was defective or that the employer has an unliquidated counterclaim for damages. A liquidated counterclaim may be set off against the amount of the certificate. Aliwal North Municipality v Crawford 1964 (1) SA 344 (A) Shelagatha Property Investments CC v Kellywood Homes (Pty) Ltd; Shelfaerie Property Holdings CC v Midrand Shopping Centre (Pty) Ltd 1995 (3) SA 187 (A)
The architect is not entitled to bind the contractor by issuing a certificate reflecting an amount due by the contractor to a sub-contractor, because the architect is not the contractor’s agent. Cone Textiles (Pvt) Ltd v Mather & Platt (SA) (Pty) Ltd 1981 (3) SA 565 (ZA) Negligence: An architectural professional is liable to the employer for damages suffered because of a failure by the professional to adhere to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the professional belongs. The architectural professional has a special duty to advise the employer of any potential risks. If damage is suffered because of the failure to provide for such eventualities, the architectural professional may escape liability by proving that adequate warnings were given to the employer and that the employer rejected them. Randaree NNO v WH Dixon & Associates 1983 (2) SA 1 (A) Negligence on the part of the architectural professional gives rise to a claim for breach of contract and not to a delictual claim. Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A) In an action for damages, the employer must allege and prove: (a) the mandate; (b) its breach;
(c) the professional’s negligence (details of the negligence must be set out); Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C) (d)
damages, which must be detailed.
The architect as agent is liable to the employer for damages resulting from the architect’s negligence concerning the issuing of a certificate. Hoffman v Meyer 1956 (2) SA 752 (C) Randcon (Natal) (Pty) Ltd v Florida Twin Estates (Pty) Ltd 1973 (4) SA 181 (D) Extended liability: Architects and quantity surveyors may, in terms of professional regulations, be members and directors of private companies or close corporations that act as architects or quantity surveyors. They must, however, be directors and the memorandum of association must contain a provision to the effect that the directors and former directors of the company shall be liable, jointly and severally, together with the company, for such debts and liabilities of the company as are or were contracted during their periods of office. This extension of liability does not extend to delictual debts. Fundstrust (Pty) Ltd (in liquidation) v Van Deventer 1997 (1) SA 710 (A) [Page 38] PRECEDENTS Claim – for remuneration 1. Plaintiff is a duly registered professional architect in terms of the provisions of the Architectural Profession Act 44 of 2000. 2. On or about [date] at [place], the defendant orally engaged the services of the plaintiff to act as architect in the planning and erection of a dwelling house at [address]. In particular, the defendant instructed the plaintiff to perform the following services: (a) (b) (c) (d) (e)
3.
to prepare sketch-plans for defendant’s approval; upon approval by the defendant, to lodge the plans with and secure their approval by the local authority; to call for and evaluate tenders for the erection of the building; to prepare the necessary contract documents and specifications; to supervise the erection of the building.
Plaintiff duly acted as the defendant’s architect and performed all the services as set out above.
4.
5. It was an express term [tacit/implied] of the agreement between the parties that the defendant would remunerate plaintiff for these services at the prescribed guideline rate. 6. The remuneration according to the guidelines for the services rendered by the plaintiff amounts to [Rx] [detail]. Claim – for damages against architect 1. Defendant is a duly registered professional architect in terms of the provisions of the Architectural Profession Act 44 of 2000. 2. On or about [date] at [place], the plaintiff engaged the services of the defendant to act as professional architect and to supervise the erection of a dwelling to be built for the plaintiff at [address]. 3. It was a [an implied] term of the agreement that the defendant would exercise reasonable professional skill and diligence in the performance of the mandate. 4.
In breach of the agreement, the defendant failed to exercise the required skill and diligence by failing to ensure that the contractor build the roof of the dwelling according to specifications or sound building practice. [Detail] 5. In consequence of the defendant’s breach of contract, the roof leaks and must be replaced. 6. When the defendant’s services were engaged, it was known to both parties that the plaintiff intended to place various valuable carpets in the house and that a leaking roof could severely damage them. 7. As a result of the leaking roof, three oriental carpets belonging to the plaintiff became wet and were damaged. In the light of the defendant’s breach of contract, the plaintiff suffered damages calculated as follows: [amount] being the reasonable costs for replacing the roof; [amount] being the damages sustained to the plaintiff’s three oriental carpets. [Detail]
8. (a) (b)
Claim – for damages due to negligent issue of a certificate 1. On or about [date] at [place], the plaintiff entered into a written building contract with [name] in terms of which the latter undertook to erect a [block of flats] for the plaintiff at [address]. [Page 39] 2. Defendant was appointed by the plaintiff to act as professional architect in respect of the block of flats and, inter alia, to issue, from time to time, certificates reflecting the amounts due to [name of contractor] by the plaintiff and, on the satisfactory completion of the block of flats, to issue a final certificate reflecting the balance then due by the plaintiff to [the contractor]. Defendant accepted this appointment on [date] at [place].
3.
4. It was a [an implied] term of the appointment that the defendant would exercise reasonable professional skill and care in the issue of the said certificates. 5. On [date], the defendant issued a final certificate to the effect that the balance owing by the plaintiff to [name] was [amount]. 6. When the final certificate was issued as aforesaid, the building was not satisfactorily completed in the following respects: [detail]. 7. Defendant, by exercising reasonable professional skill and care, would have been aware of the respects in which the building was not satisfactorily completed and should not have issued a final certificate. 8. In the premises, the defendant was negligent in issuing the said final certificate and this negligence constituted a breach of contract. 9. In terms of the agreement between the plaintiff and [name], the plaintiff became obliged to pay to [name] the sum of [amount] upon issue of the certificate and on [date] the plaintiff paid the sum of [amount] to [name]. 10. Plaintiff is unable to recover the aforesaid sum from [name] and has, therefore, suffered damages in the amount of [Rx] [detail] which damages were caused by the defendant’s breach of contract. Pleadings/Amlers Precedents of Pleadings/A/Arrest and Detention Arrest and Detention Related subjects: ASSAULT MALICIOUS PROSECUTION POLICE STATE LIABILITY VICARIOUS LIABILITY
Parties: For the liability of the State for an unlawful arrest or detention, see: Minister van Polisie v Gamble 1979 (4) SA 759 (A) An arrest or detention must be constitutionally justified. 1996 Constitution s 35(1) and (2) Minister of Correctional Services v Kwakwa [2002] 3 All SA 242 (A); 2002 (4) SA 455 (SCA) Tobani v Minister of Correctional Services NO [2000] 2 All SA 318 (SE) Mistry v Interim National Medical & Dental Council of South Africa [1997] 3 All SA 519 (D) A breach of constitutional duties does not give rise to a claim for additional damages. Fose v Min of Safety & Security 1997 (3) SA 786 (CC) Jurisdiction: The jurisdiction of a court is determined according to the principles applicable to delictual claims. Cause of action: The cause of action in respect of unlawful arrest and detention is the actio iniuriarum. It has, in the present context, certain special features which will be dealt with below. Whittaker v Roos & Bateman 1912 AD 92 Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) [Page 40] Wrongfulness: An arrest or detention is prima facie wrongful and unlawful. It is, therefore, not necessary to allege or prove wrongfulness or unlawfulness. It is for the defendant to allege and prove the lawfulness of the arrest or detention. Brand v Minister of Justice 1959 (4) SA 712 (A) at 714 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 587–589 Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) Stambolie v Commissioner of Police 1990 (2) SA 369 (ZSC) Lombo v African National Congress [2002] 3 All SA 517 (SCA); 2002 (5) SA 668 (SCA) at par 32 Thus, where police have arrested and detained a person, once the arrest and detention are admitted, the onus of proving lawfulness rests on the State. Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk) An arrest without a warrant is lawful if, at the time of the arrest, the arresting officer had a reasonable belief that the plaintiff had committed a schedule-one offence. The defendant has to show not only that the arresting officer suspected the plaintiff of having committed an offence, but that the officer reasonably suspected the plaintiff of having committed a schedule-one offence. Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk) Manqalaza v MEC for Safety & Security, Eastern Cape [2001] 3 All SA 255 (Tk) If the arrest took place pursuant to a warrant, the onus of proving wrongfulness of the arrest rests upon the plaintiff. Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie Noord-Transvaal 1972 (1) SA 376 (A) at 394 Minister van Polisie v Goldschagg 1981 (1) SA 37 (A) A warrant in the proper form and issued by a duly authorised official would, for the arresting officer, provide a complete defence. Divisional Commissioner of SA Police Witwatersrand Area v SA Associated Newspapers Ltd 1966 (2) SA 503 (A) Prinsloo v Newman 1975 (1) SA 481 (A) Once there is a lawful detention, that is, a detention by virtue of a court order, the circumstances of the arrest leading to such detention cannot make the detention unlawful. Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A); 1996 (1) SACR 314 (SCA) Grootboom v Minister van Justisie [1997] 3 All SA 51 (SE) There is no onus on the authorised official who issued a warrant to show that reasonable grounds existed for the warrant. Divisional Commissioner of SA Police Witwatersrand Area v SA Associated Newspapers Ltd 1966 (2) SA 503 (A) at 883–884 Although a magistrate is not called upon to consider a prosecutor’s conclusions with regard to reasonable grounds for suspicion, it does not mean that the magistrate must not exercise a discretion in deciding whether to issue a warrant of arrest. The magistrate must be satisfied that the alleged offence is an offence in law and that it is of such a nature and gravity as to justify a warrant. The bona fide exercise of this discretion by the authorised official is not objectively justifiable. Groenewald v Minister van Justisie 1973 (3) SA 877 (A) at 883–884 This statement is subject to the provisions of the right to just administrative action entrenched in the Bill of Rights. 1996 Constitution s 33 [Page 41] The principle that the defendant must justify an arrest without a warrant is also applicable where the arrest allegedly took place in terms of a statutory authority. Minister of Law and Order v Hurley 1986 (3) SA 568 (A)
Animus iniuriandi : In spite of the fact that the cause of action is the actio iniuriarum, a plaintiff need not allege and prove the presence of animus iniuriandi – that is, an intention to injure or an awareness of unlawfulness. Further, a defendant cannot escape liability by alleging and proving its absence. The intention to arrest or detain suffices. Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154–157 Tödt v Ipser 1993 (3) SA 577 (A) at 586G–I An honest belief in the legality of the arrest or detention is no defence. Tsose v Minister of Justice 1951 (3) SA 10 (A) at 18 Smit v Meyerton Outfitters 1971 (1) SA 137 (T) Ramsay v Minister van Polisie 1981 (4) SA 802 (A) at 818 Damages: Special damages as well as general damages for the loss of the plaintiff’s freedom can be claimed. If special damages are claimed, the requisites for a claim under the lex Aquilia must be alleged and proved. Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N); 1998 (2) SA 319 (N) Bentley and another v McPherson [1999] 2 All SA 89 (E); 1999 (3) SA 854 (E) Defences: Apart from placing the plaintiff’s factual allegations in issue, the only defence available is justification – that is, that the arrest was lawful. Use of force: See : ASSAULT Irregular warrant: Any member of the SA Police Services who acts under a warrant or process which is bad in law on account of a defect in the substance or form thereof, if he or she has no knowledge that such warrant or process is bad in law and regardless of whether such defect is apparent on the face of the warrant or process, is exempt from liability in respect of such act as if the warrant or process were valid in law. South African Police Service Act 68 of 1995 s 55(1) Arrest of wrong person: Any such member who, in terms of a warrant of arrest, is authorised to arrest a person and who, in the reasonable belief that he or she is arresting such person arrests another, is exempt from liability in respect of such wrongful arrest. Further, any member who is called upon to assist in making such an arrest, or who is required to detain a person so arrested, and who reasonably believes that the said person is the person whose arrest has been authorised by the warrant of arrest is likewise exempt from liability in respect of such assistance or detention. South African Police Service Act 68 of 1995 s 55(2) Alternative claims: Wrongful arrest can be relied on as an alternative to malicious arrest. However, the two causes of action should, as a matter of pleading, be kept separate and distinct. Tödt v Ipser 1993 (3) SA 577 (A) at 587A–C See : MALICIOUS PROSECUTION [Page 42] PRECEDENTS Claim – for damages due to wrongful arrest and detention 1. On [date] at [place], the plaintiff was arrested without a warrant by [name], a member of the South African Police Service [second defendant]. 2. Thereafter, the plaintiff was detained at [place] for [days] at the instance of the aforesaid policeman and various other policemen whose names and ranks are unknown to the plaintiff. 3. The said policemen were acting within the course and scope of their employment as policemen of the South African Police Services. As a result of the foregoing, the plaintiff suffered loss in the amount of [Rx] made up as follows: [detail]. Proper notice of the proceedings was given to the defendants in terms of [See : POLICE]
4. 5.
Claim – unlawful civil detention [From Tödt v Ipser 1993 (3) SA 577 (A) at 585–586.] 1. At all material times, the plaintiff was subject to an administration order issued by the additional magistrate, Bellville, and such order was of full force and effect. 2. In terms of section 74P(1) of the Magistrates’ Courts Act 32 of 1944, as amended, no creditor has any remedy against a debtor under administration or against his property (save for debts secured by way of mortgage bond or referred to in terms of section 74P(3) of Act 32 of 1944) without the leave of the court and on such conditions as the court may impose.
3. On 10 March 1986, the defendant applied to the additional magistrate, Bellville, for leave to institute action against the plaintiff in terms of section 74P(1) of Act 32 of 1944 “for no other purpose than to qualify for interest” on an amount of R296,34 alleged by the defendant at the time to have been owed to him by the plaintiff. 4. Defendant moreover accepted that, should such leave to institute action (and in due course obtain judgment) be granted, the defendant would “not be free to execute (upon) the judgment while the administration order (was) in existence”. 5. Leave was duly granted to the defendant to institute action (and to obtain judgment), the defendant having restricted himself to obtaining such judgment for the aforesaid purposes and subject to the aforesaid restriction, pursuant to which the defendant obtained judgment against plaintiff in the Bellville magistrate’s court. 6. Notwithstanding the foregoing, the defendant wrongfully, wilfully and with the intention to injure, obtained a judgment in the Cape Town magistrate’s court (based on the aforesaid judgment in the Bellville magistrate’s court), instituted proceedings against the plaintiff in terms of section 65 of Act 32 of 1944 (of which plaintiff was at all material times unaware) and caused a warrant of arrest to be issued for the plaintiff’s incarceration, pursuant to which the plaintiff was arrested by the deputy messenger, Cape Town, on 1 August 1988 and detained in prison on 2 August 1988. 7. By virtue of the foregoing, the plaintiff suffered grave distress and inconvenience, was severely humiliated and was gravely injured in her dignity. Claim – unlawful detention of goods [From Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N); 1998 (2) SA 319 (N).] 1. At all times material hereto, the plaintiff was and is not liable to any of the defendants in respect of customs duty, value added tax and accordingly, the seized goods were and are not liable to forfeiture, seizure or detention in terms of the provisions of the Customs Act 91 of 1964. [Page 43] The second and third defendants contend that: 2.1
2.
the plaintiff’s name appears upon certain bills of lading in respect of other shipments of goods (hereinafter referred to as “the other goods”) as the notify parties;
2.2 by virtue of being named as a notify party in the said bills of lading, the plaintiff was deemed to be an importer of the other goods and as defined by section 1 of Act 91 of 1964 inasmuch as the plaintiff was a person beneficially interested in the other goods; alternatively, 2.3 the plaintiff was itself a person who was so beneficially interested as defined by the said section 1 Act 91 of 1964; further alternatively, 2.4
the plaintiff acted on behalf of a person who was so beneficially interested as defined by the said section 1 of Act 91 of 1964. 3.
The plaintiff disputes the correctness of the contentions of the second and third defendants and avers that: 3.1 as a notify party whose name appeared on the bills of lading it was not a person beneficially interested in the other goods so imported; 3.2
in any event, it was not a party to the transaction nor had any beneficial interest in the other goods so imported within the meaning of the definition of “importer” in section 1 of Act 91 of 1964.
4. In the premises the second, alternatively the third, alternatively the second and third defendants acting through their duly authorised servants or agents wrongfully and unlawfully seized and thereafter detained the said goods. 5. In the premises, the said goods are not liable to forfeiture within the meaning of section 87(1) of Act 91 of 1964.
6. As a consequence the plaintiff has suffered damages in the sum of R14 885 340 and will continue to suffer damages in an amount of not less than R1,5 million per month reckoned from 23 November 1996 to date of judgment. Plea – lawful arrest Defendant denies that the arrest and detention were unlawful and pleads that both the arrest and detention were lawful in terms of section 40(1)(a) of the Criminal Procedure Act 51 of 1977 in that: (a) (b)
the arresting officer, [name], was a peace-officer as defined in Act 51 of 1977; plaintiff committed the offence of assault on [date] at [place] by [name] in the presence of the arresting officer.
Pleadings/Amlers Precedents of Pleadings/A/Assault Assault Constitutional principles: The State has a constitutional obligation to protect individuals from violence and failure to do so may give rise to delictual liability. Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA); 2002 (6) SA 431 (SCA) Van Eeden (formerly Nadel) v Minister of Safety and Security [2002] 4 All SA 346 (SCA); 2003 (1) SA 389 (SCA) Jurisdiction: The jurisdiction of a court is determined according to the principles applicable to delictual claims. Cause of action: An assault is a delict affecting a person’s bodily integrity. The cause of action is, therefore, the actio iniuriarum. Mabaso v Felix 1981 (3) SA 865 (A) Bennett v Minister of Police 1980 (3) SA 24 (C) at 35 [Page 44] In the case of a non-contumacious act (for example, an unauthorised surgical operation), the cause of action is probably the actio legis Aquiliae – in which event, actual damages must be claimed. Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N); 1998 (2) SA 319 (N) The case-law is not clear or consistent on this point. Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T) Wrongfulness: Physical interference is usually wrongful. It is for the plaintiff to establish physical interference. Wrongfulness is (normally) a legal issue which does not carry any onus. Mabaso v Felix 1981 (3) SA 865 (A) at 874 The allegation of an “assault” implies wrongfulness. Bennett v Minister of Police 1980 (3) SA 24 (C) at 34–35 Facts which indicate, prima facie and objectively, a wrongful act must be alleged and proved by the plaintiff. Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A) Onus: Earlier doubts as to who bears the onus of proof have now been clarified. Mabaso v Felix 1981 (3) SA 865 (A) Cf Matlou v Makhubedu 1978 (1) SA 946 (A) The onus of alleging and proving an excuse for, or justification of, the assault rests on the defendant. In Mabaso v Felix 1981 (3) SA 865 (A), it was suggested that the pleadings may be so formulated as to place the onus on the plaintiff but the author cannot conceive of such a situation and the suggestion cannot be reconciled with later caselaw. Cf Minister of Law and Order v Monti 1995 (1) SA 35 (A) at 39G–I Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) Parties: A defendant may be vicariously liable for an assault committed by another. A typical example is the liability of the State for an assault committed by a policeman in the course of his employment. In such a case, the relevant Minister is the nominal defendant representing the State and the policeman involved is usually cited as the second defendant. See : STATE LIABILITY The State remains liable for the acts of a policeman where the assault was committed during an arrest performed by the policeman pursuant to the exercise of a discretion to arrest. Minister van Polisie v Gamble 1979 (4) SA 759 (A) Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) Animus iniuriandi : There can be no assault without an intention to injure, Brown v Hoffman 1977 (2) SA 556 (NC)
and an allegation of assault implies such an intention (animus iniuriandi). Bennett v Minister of Police 1980 (3) SA 24 (C) at 34–35 Groenewald v Groenewald [1998] 2 All SA 335 (A); 1998 (2) SA 1106 (SCA) at 1111–1112 It is for the defendant to allege and prove facts showing a lack of animus iniuriandi. Lack of knowledge of wrongfulness is no defence. Bennett v Minister of Police 1980 (3) SA 24 (C) Damages: General damages need not be particularised. Prinsloo v Du Plooy 1952 (4) SA 219 (O) [Page 45] Patrimonial damages can be claimed (even in the absence of contumelia) but must be particularised. Brown v Hoffman 1977 (2) SA 556 (NC) Uniform rule 18(10) A breach of constitutional duties does not give rise to a claim for additional damages. Fose v Min of Safety & Security 1997 (3) SA 786 (CC) Defences: If the defence is one of justification, it is inadvisable for the defendant to admit in her or his plea to an “assault” on the plaintiff. The defendant should rather use a neutral word, such as “striking”, which does not imply wrongfulness or animus iniuriandi. Consent: Consent by the plaintiff to the act complained of falls to be decided according to the principles of volenti non fit iniuria. See : VOLENTI NON FIT INIURIA Self-defence: The defendant must plead and prove: (a) (b) (c)
an unlawful attack, threatened or real, by the plaintiff; reasonable grounds for believing that the defendant was in physical danger; that the force used was, in the circumstances, necessary to repel the attack and commensurate with the plaintiff’s aggression. Mabaso v Felix 1981 (3) SA 865 (A) at 874 Minister of Law and Order v Milne 1998 (1) SA 289 (W) at 293 S v Makwanyane 1995 (3) SA 391 (CC) at par 138
Provocation: Provocation may mitigate damages but cannot justify an assault. Winterbach v Masters 1989 (1) SA 922 (E) Parental or quasi-parental authority: A parent has, at common law, the right to inflict moderate and reasonable corporal punishment upon a child. The extent to which this right has been affected by the 1996 Constitution is unclear. The relationship between a teacher and pupil in respect of moderate and reasonable corporal punishment was similar. Hiltonian Society v Crofton 1952 (3) SA 130 (A) Cf Mabaso v Felix 1981 (3) SA 865 (A) at 876 Legislation (possibly also the Bill of Rights) now limits the teacher’s right to inflict corporal punishment, and a breach of any provision prohibiting or limiting this right may expose a teacher to a claim for damages for assault on the basis that the he or she exceeded a statutory authority or acted in breach of a statutory prohibition. Christian Education SA v Minister of Education 2000 (4) SA 757 (CC) Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76 (NmSC) Necessity: The defence of necessity may be relied on where force was necessary in order to effect a lawful arrest or to prevent an escape from arrest. Ex parte Minister of Safety and Security: In re: S v Walters 2002 (4) SA 613 (CC) par 53 and 54 Govender v Minister of Safety & Security 2001 (4) SA 273 (SCA); 2001 (2) SACR 197 (SCA) The onus lies on a defendant who admits the “assault” to prove the lawfulness of the “assault” and arrest. Macu v Du Toit 1983 (4) SA 629 (A) Malahe v Minister of Safety and Security [1998] 4 All SA 246 (A); 1999 (1) SA 528 (SCA) [Page 46] The Criminal Procedure Act 51 of 1977 provides that, if any person authorised under the Act to arrest or to assist in arresting another attempts to arrest such person and the latter – (a) resists the attempt and cannot be arrested without the use of force; or (b) flees when it is clear that an attempt to arrest her or him is being made, or resists such attempt and flees,
the person so authorised may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing. Criminal Procedure Act 51 of 1977 s 49(1) The defendant must allege and prove: (a) that the defendant acted lawfully; or (b) that the defendant had reasonable grounds for suspecting the commission of an offence by the plaintiff, on which grounds the defendant was by law entitled to arrest the plaintiff; (c) (d) (e)
that the defendant attempted to arrest in a manner prescribed by law; that the plaintiff attempted to prevent or escape arrest; and that the force employed by the defendant was reasonably necessary to bring about the arrest.
The rules regarding the use of force are these: (a) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest. (b) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used. (c)
In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed, the force being in proportion to all these circumstances.
(d) The shooting of a suspect solely in order to carry out an arrest is permitted in very limited circumstances only. (e) Ordinarily, such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others, or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm, and there are no other reasonable means of carrying out the arrest, whether at that time or later. (f)
These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person. Ex parte Minister of Safety and Security: In re: S v Walters 2002 (4) SA 613 (CC)
Medical treatment: It is not advisable to allege that medical treatment given without the informed consent of the patient amounted to an assault. Broude v McIntosh 1998 (2) SA 555 (SCA) at 562–563; 1998 (3) SA 60 (SCA) at 67–68 [Page 47] PRECEDENTS Claim – for damages 1. On [date] at [place], the first defendant unlawfully assaulted the plaintiff by [for example, hitting him with a stick]. 2. At all material times, the first defendant was acting within the course and scope of his employment with the second defendant. [The assault took place in public and within sight of members of the public.] As a result of the assault, the plaintiff: (a)
had to undergo medical treatment [detail];
3. 4.
(b) was unable to work for [period] and consequently suffered a loss of income; (c) suffered contumelia. 5. As a result of the foregoing, the plaintiff suffered damages in the amount of [amount] made up as follows: [detail]. Plea – of justification Defendant admits that he hit the plaintiff as alleged but pleads that he was justified in so doing inasmuch as the plaintiff had attacked him with a stick and the defendant’s actions were necessary for his own protection. Claim [From Minister of Law and Order v Monti 1995 (1) SA 35 (A) at 36.] 1. On or about 10 November 1984 and at or near Wood Street, Grahamstown, the plaintiff was wrongfully and unlawfully assaulted by a member or members of the South African Police Services whose identity or identities are to the plaintiff unknown, in that: (i) he/they took hold of the plaintiff’s clothing and forced him into a partially burnt-down beer hall; (ii) he/they shot the plaintiff from behind and in the back; (iii) he/they thereafter slapped the plaintiff with a flat hand in the face; (iv) he/they thereafter poured the contents of a bottle of wine onto the plaintiff’s head. Plea – of justification The defendant admits only:
1.
(i) that at approximately 11h00 on 10 November 1984, and in the vicinity of a beer hall at Wood Street, Grahamstown a policeman shot the plaintiff with birdshot; (ii) that subsequent to the plaintiff being shot as aforesaid, he was lawfully arrested and detained; (iii) that at all relevant times the members of the South African Police Services who shot, arrested and detained the plaintiff were servants of the defendant acting within the course and scope of their employment; (iv) that the events set out above took place within the area of jurisdiction of this honourable Court. 2. The defendant however denies that the said policeman, in shooting the plaintiff as aforesaid, acted wrongfully and unlawfully and pleads that he acted lawfully and reasonably in that: (i) the plaintiff was a member of a group of approximately 20 persons who had committed the offence of breaking and entering certain premises with the intention to steal and of theft and public violence; [Page 48] the said policeman, in shooting the plaintiff, did so: (aa) (bb) (cc)
(ii)
to maintain law and order; to protect life and property; to identify and arrest the culprits who had committed the offences set out above. (iii)
The defendant denies further that the arrest of the plaintiff was wrongful and unlawful, and pleads that it was necessary due to the plaintiff having taken part in the offences as set out above. (iv) Subject to the foregoing, the defendant denies that the plaintiff was assaulted whether as alleged or at all and puts the plaintiff to the proof thereof. The plaintiff’s allegations, insofar as they are inconsistent with the foregoing, are denied.
(v)
Claim – based on omission [From Moses v Min for Safety & Security [2000] 1 All SA 89 (C); 2000 (3) SA 106 (C).] 1. At the cells of the police services Atlantis, on or about 21 April 1996 the deceased – as a result of the negligence of unknown servants of the defendant, whilst acting in the course and scope of their employment as policemen – was unlawfully and intentionally assaulted and sodomised by co-detainees whilst in lawful custody and that he, as a result of his injuries, died on 29 August 1997. 2. The plaintiff averred that the defendant’s servants were negligent in one or more of the following respects – a) they failed to protect the deceased from being assaulted and sodomised whilst he was being held in custody; b)
they placed the deceased in a cell with “gangsters” whom they knew or ought to have foreseen would assault him;
(c) they failed to exercise reasonable care to prevent the deceased from being assaulted and sodomised when there was a legal duty on them to do so; and (d)
they failed to take reasonable or adequate steps to prevent the assault when by exercising reasonable care they could have done so.
Pleadings/Amlers Precedents of Pleadings/A/Attachment or Execution Attachment or Execution See : MALICIOUS PROSECUTION Pleadings/Amlers Precedents of Pleadings/A/Attorneys Attorneys Related subjects:
AGENCY LOCATIO CONDUCTIO OPERIS PROFESSIONAL LIABILITY
General: The relationship between an attorney and client is based on a contract of mandate. Mort NO v Chiat [2000] 2 All SA 515 (C); 2001 (1) SA 464 (C) It places fiduciary obligations upon the attorney. Incorporated Law Society, Transvaal v Meyer 1981 (3) SA 962 (T) at 970 Eksteen v Van Schalkwyk 1991 (2) SA 39 (T) An attorney has a duty of care towards the client, the court, the opponent and other third parties. This duty does not readily admit of a clear definition. Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos 1985 (4) SA 341 (T) Pienaar v Pienaar 2000 (1) SA 231 (O) Heg Consulting Enterprises (Pty) Ltd v Siegwart 2000 (1) SA 507 (C) Pretorius v McCallum 2002 (2) SA 423 (C) [Page 49] Fees: An attorney who wishes to claim a fee from the client must allege and prove the following: (a) the contract (mandate); (b) due and proper performance of the contract;
(c) an agreement as to the amount payable; Kruger v Resnik 1955 (3) SA 378 (A) Mnweba v Maharaj [2001] 1 All SA 265 (C) (d) in the absence of an express term, the reasonable remuneration for the work done in terms of an implied (tacit) term. Taxation of an attorney and client bill is not a prerequisite for legal proceedings for the recovery of fees. Chapman Dyer Miles & Moorhead Inc v Highmark Investment Holdings CC [1997] 4 All SA 247 (D); 1998 (3) SA 608 (D) Unless the fees have been agreed upon, the client may, by way of a special plea (which is dilatory in nature), require the taxation of the bill. Only after taxation can the case then proceed. Benson v Walters 1984 (1) SA 73 (A) Practitioners may not practice or act as practitioners on their own account or in partnership unless they are in possession of a fidelity fund certificate. Practitioners who practice or act in contravention of this rule are not entitled to any fee, reward or disbursement in respect of anything done by them while so practising or acting. Attorneys Act 53 of 1979 s 41 While it is not for the taxing master to decide the question of whether the client is liable to the attorney, the taxing master may, during taxation, consider whether there is evidence to show that the work was done and may disallow fees claimed for work not done. Botha v Themistocleous 1966 (1) SA 107 (T) Composting Engineering (Pty) Ltd v The Taxing Master 1985 (3) SA 249 (C) Berman & Fialkov v Lumb [2002] 4 All SA 432 (C); 2003 (2) SA 677 (C) Mackay v Legal Aid Board 2003 (1) SA 271 (SE) at 287 Pactum de quota litis : An agreement to share the proceeds of a lawsuit is not necessarily champertous and contrary to public policy. There is a distinction between an acceptable and an objectionable pactum de quota litis. When a litigant is not in a financial position to fund the litigation completely, such a cession agreement may be upheld as valid. Headleigh Private Hospital (Pty) Ltd t/a Rand Clinic v Soller & Manning [1998] 4 All SA 334; 2001 (4) SA 360 (W) Contingency Fees Act 66 of 1997 The mandate: An instructing attorney may, by instructing a correspondent, incur liability to the correspondent. Truter, Crous, Wiggill & Vos v Udwin 1981 (4) SA 68 (T) The fact that an attorney has been appointed in a deed of sale to attend to the conveyancing does not make the attorney a party to that agreement nor can the attorney become a party to it by accepting the so-called benefit. Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) [Page 50] The scope of the mandate depends on its express, tacit or implied terms. A mandate to institute an action or to receive payment of the amount claimed does not necessarily imply a mandate to settle the claim. Goosen v Van Zyl 1980 (1) SA 706 (O) Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) Hlobo v Multilateral Motor Vehicle Accidents Fund [2001] 1 All SA 322 (A); 2001 (2) SA 59 (SCA) As a general rule, the client is entitled to terminate the mandate at any stage. The mandate is also terminated by the death or insolvency of the client. Goodricke & Son v Auto Protection Insurance Co Ltd (in liq) 1968 (1) SA 717 (A) Provisional sentence: An attorney is entitled to claim for a provisional sentence in respect of an attorney and (own) client bill of costs, provided that the attorney can rely on a written mandate signed by the client coupled with a duly taxed attorney and client bill. Truter, Crous, Wiggill & Vos v Udwin 1981 (4) SA 68 (T) at 73 Gelb, Benjamin & Kaplan v Melzer 1987 (1) SA 917 (T) Fidelity Guarantee Fund: The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund was created by Chapter II of the Attorneys Act 53 of 1979. Its board of control may sue and be sued under the name of the Fund. The Fund is liable to reimburse a person who can allege and prove: (a) (b) (c)
(d)
that the plaintiff suffered pecuniary loss, by reason of a theft committed by a practising attorney, a candidate attorney or employee, of any money or other property entrusted by or on behalf of the plaintiff to the attorney or to a candidate attorney or employee,
in the course of the attorney’s practice, while acting as executor or administrator in the estate of a deceased person, as a trustee in an insolvent estate, in any other similar capacity or where the attorney or an employee has acted as estate agent. Attorneys Act 53 of 1979 s 26(a) Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund 1981 (3) SA 539 (W) Industrial & Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control [1996] 4 All SA 295 (A) at 297; 1997 (1) SA 136 (SCA) The Fund is also liable for pecuniary loss suffered as a result of theft of money or other property by estate agents in the employ of attorneys and by attorneys, if the money or property was entrusted to them under the provisions of the Estate Agency Affairs Act 112 of 1976. Attorneys Act 53 of 1979 s 26(b) In order to succeed, it is probably unnecessary to show that a fiduciary relationship existed between the plaintiff and the attorney. Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund 1981 (3) SA 539 (W) Contra: British Kaffrarian Savings Bank Society v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1978 (3) SA 242 (E) [Page 51] An action cannot be instituted against the Fund unless the claimant has exhausted all available legal remedies against the practitioner. The board may waive this requirement. Basson v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1957 (3) SA 490 (C) Peffers NO v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1965 (2) SA 53 (C) Attorneys Act 53 of 1979 s 49(1) No-one can claim against the Fund, without prior written notice no more than three months after the claimant becomes aware of the theft or, by exercise of reasonable care, should have become aware of the theft. A claimant who fails to furnish the board within the prescribed time with such proof as the board may reasonably require also loses the right to claim from the board. Attorneys Act 53 of 1979 s 48(1) SVV Construction (Pty) Ltd v Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund 1993 (2) SA 577 (C) at 584–585 The claim for reimbursement is limited to the amount actually handed over, but the board may in its discretion pay interest. The board is nevertheless obliged to pay mora interest if it withheld payment incorrectly. Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund v Tony Allem (Pty) Ltd 1990 (2) SA 665 (A) Attorneys Act 53 of 1979 ss 45(2) and 47(2) Action must be instituted within one year of the date of the notification from the board of the rejection of the claim. Attorneys Act 53 of 1979 s 49(2) Negligence: The liability of an attorney towards a client for damages resulting from that attorney’s negligence is based on a breach of the contract between the parties. It is a term of the mandate that the attorney will exercise the skill, adequate knowledge and diligence expected of an average practising attorney. An attorney may be held liable for negligence even if he of she committed an error of judgement on matters of discretion, if the attorney failed to exercise the required skill, knowledge and diligence. Bruce NO v Berman 1963 (3) SA 21 (T) Mouton v Mynwerkersunie 1977 (1) SA 119 (A) Slomowitz v Kok 1983 (1) SA 130 (A) Rampal (Pty) Ltd v Brett, Wills & Partners 1981 (4) SA 360 (D) Bouwer v Harding [1997] 3 All SA 415 (SE); 1997 (4) SA 1023 (SE) Jowell v Bramwell-Jones 1998 (1) SA 836 (W) Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (SCA) The client must allege and prove: (a) the mandate; (b) breach of the mandate; (c) negligence in the sense described above; (d) damages, which may require proof of the likelihood of success in the aborted proceedings; Dhooma v Mehta 1957 (1) SA 676 (D) (e)
that the damages were within the contemplation of the parties when the contract was concluded. Bruce NO v Berman 1963 (3) SA 21 (T)
[Page 52] Extension of liability: A private company may conduct an attorney’s practice if, inter alia, the memorandum of association provides that all present and past directors shall be liable jointly and severally with the company for the company’s debts and liabilities contracted during their periods of office. Attorneys Act 53 of 1979 s 23(1) This provision does not apply to delictual debts. Cf Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A); 1997 (1) SA 710 (A) Third parties: An attorney may be liable towards a third party in respect of a negligent misrepresentation made to that party. The third party will have to allege and prove: (a) (b) (c) (d)
a duty of care owed by the attorney to the claimant; a misstatement or misrepresentation; a negligent breach of the duty; damages. SA Bantoetrust v Ross & Jacobz 1977 (3) SA 184 (T) Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos 1985 (4) SA 341 (T) See : NEGLIGENT MISREPRESENTATION
PRECEDENTS Claim – for agreed fees 1. Plaintiff is an attorney, duly admitted and practising at [place]. 2. On [date] at [place], the defendant engaged the services of the plaintiff to act as his attorney in an action instituted against him by [name] and in [court]. Plaintiff duly acted as the defendant’s attorney in the aforesaid action, which was concluded on [date].
3.
4. It was expressly agreed between the parties that, upon the conclusion of the action, the defendant would pay to the plaintiff the sum of [amount] as fees for services rendered and would, in addition, recompense the plaintiff for all disbursements necessarily made by plaintiff in acting for defendant as aforesaid. Plaintiff made necessary disbursements in the amount of [amount] [detail]. Despite demand, the defendant has failed to pay the aforesaid sums to plaintiff.
5. 6.
Claim – for taxed fees [Alternative to paragraphs 4 and 5 (above)]: Thereafter, and after due notice of taxation was given to the defendant, the registrar of the court [or the clerk of the court, as the case may be] duly taxed a bill of costs in respect of the plaintiff’s services on the defendant’s behalf and taxed the plaintiff’s fees and disbursements therein in a sum of [amount]. A copy of the taxed bill is annexed. Claim – against correspondent Plaintiff is an attorney. Defendant is an attorney.
1. 2.
3. On [date], the defendant orally instructed the plaintiff to act as his correspondent in an action between [name] and [name] to be instituted in [court]. [Page 53] 4. Plaintiff accepted the instruction and performed the agreed professional services and made certain necessary disbursements on the defendant’s behalf.
5. Thereafter, the plaintiff’s mandate was terminated by the defendant. 6. It was an implied term of the instructions that the plaintiff would be entitled to be paid a reasonable fee for his professional services and recompensed for all necessary disbursements made on his behalf. 7. Plaintiff’s reasonable fee for the professional services rendered by him is [amount] as detailed in Annexure “A”. In the performance of his mandate, plaintiff made the following necessary disbursements: [detail].
8.
Claim – for damages against attorney 1. Defendant is a practising attorney. 2. On [date], defendant accepted instructions from plaintiff to perform, inter alia, the following professional services as the plaintiff’s attorney: (a)
to investigate whether [ABC Company] was financially sound enough to sign as a surety for the loan of [amount] to be made by the plaintiff to [X];
(b) to determine whether [ABC Company] was, in terms of its statutes, entitled to sign as a surety for such a loan; (c)
to advise the plaintiff as to the legal risks involved in accepting such a surety.
3. It was an implied term of the agreement between the parties that the defendant would perform the services in a proper and professional manner and without negligence. 4. In breach of the agreement, the defendant was negligent in the performance of his duties in one or more of the following respects: (a)
he failed to ascertain that [ABC Company] was not financially able to perform in terms of such a security;
(b) he failed to ascertain that the statutes of [ABC Company] specifically prohibited the entering into of such a suretyship; (c)
he advised the plaintiff that no legal risks flowed from the acceptance of the suretyship of the [ABC Company].
5. By the exercise of such care as could reasonably be expected of an average attorney, he would have ascertained the true facts. 6. A reasonable attorney would have advised his client not to enter into the loan on the strength of a suretyship obtained from [ABC Company]. 7. It was in the contemplation of the parties when the agreement between them was reached that the plaintiff would suffer damages in the event of being wrongly advised by the defendant. Acting on the defendant’s advice, the plaintiff lent and advanced an amount of [amount] to [X].
8.
9. Before [X] could repay the aforesaid loan, [X] was sequestrated and no dividends were paid to the plaintiff out of the insolvent estate. 10. [ABC Company] was never in a financial position to act as surety, nor was it authorised by its statutes to enter into such suretyship, and the plaintiff is, therefore, unable to rely on the suretyship and to obtain any payment from the [ABC Company]. 11.
As a result of the defendant’s incorrect and negligent advice, the plaintiff suffered damages in the amount of [amount]. [Detail] Claim – against fidelity fund 1. Defendant is the Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund, established in terms of section 8 of Act 19 of 1941 read with section 25 of Act 53 of 1979. 2. On or about [date], the plaintiff entrusted to [A], an attorney duly admitted and practising as such, in his capacity as attorney, a sum of [amount] to be held in trust by him, pending registration of transfer of a certain property [description] into the name of [name]. [Page 54] During or about the period [state period], the said [A] [or his clerk or servant] stole the said money. As a result of the theft, the plaintiff suffered pecuniary loss in the amount of [Rx].
3. 4.
5. Plaintiff attempted to recover the amount from [A] and exhausted all his remedies, but was unable to recover any of the amounts from [A]. 6. Despite demand and the giving of the requisite notice in terms of Act 53 of 1979, the defendant failed or refused to pay the aforesaid sum to the plaintiff as it was obliged to do. Special plea – of non-taxation 1. Defendant admits that the plaintiff performed certain professional services as alleged. 2. Defendant denies that the amount of [Rx] claimed by the plaintiff constitutes a fair and reasonable fee for the services rendered, or that the amount of [amount] allegedly disbursed by the plaintiff constitutes reasonable disbursements in respect of the services rendered. 3. Plaintiff has not presented a bill for taxation. WHEREFORE defendant prays that plaintiff’s action be stayed, pending the taxation of his bill of costs. Pleadings/Amlers Precedents of Pleadings/A/Auctions Auctions Related subjects:
AGENCY ALIENATION OF LAND ESTATE AGENTS
General: An auction sale is regulated by the conditions of the auction, and the party who bids at such a sale is deemed to agree to those conditions. Pledge Investments (Pty) Ltd v Kramer NO: In re Estate Selesnik 1975 (3) SA 696 (A) Slabbert, Verster & Malherbe (Noord Vrystaat) (Edms) Bpk v Gellie Slaghuis (Edms) Bpk 1984 (1) SA 491 (O) Frank R Thorold (Pty) Ltd v Estate late Beit 1996 (4) SA 705 (SCA) The auctioneer may either act as principal or as agent. If it acts as principal, it may enforce the contract in its own name. It would otherwise be for the seller to do so. SWA Amalgameerde Afslaers (Edms) Bpk v Louw 1956 (1) SA 346 (A) Certain of the conditions and terms of an auction may relate to the auctioneer, whereas others may relate to the principal only. Faure v Joubert NO 1979 (4) SA 939 (A) The liability of the auctioneer depends on whether it acted as principal or as agent. Alienation of land: In general, an alienation of land must be contained in a deed of alienation, which must be signed by the parties thereto or by their agents acting on their written authority. The only exception is a sale of land by public auction. Alienation of Land Act 68 of 1981 ss 2 and 3 PRECEDENTS
Claim – for payment of commission 1. On [date] at [place], the parties orally agreed that the plaintiff would act as the defendant’s auctioneer to sell a certain house situate at [detail]. [Page 55] 2. It was an express term of the agreement that, in the event of the house’s being sold, the defendant would pay to the plaintiff the usual commission payable to auctioneers for such services, being [percentage] of the purchase price, as well as all expenses necessarily incurred by the plaintiff in accomplishing the sale. 3. On [date], the plaintiff sold the house by public auction for the sum of [amount] and, in effecting the sale, incurred necessary expenses amounting to [Rx] calculated as follows: [detail]. In the premises, the defendant is liable to pay to the plaintiff the sum of [amount].
4.
Claim – against auctioneer for breach of contract 1. On [date] at [place], the plaintiff orally instructed the defendant to sell the plaintiff’s [motor car] on a public auction for not less than [amount] in cash. Defendant accepted this mandate.
2.
3. Acting on such instructions, the defendant sold the [motor car] for the sum of [amount] but, in breach of his mandate to accept cash only, accepted from the purchaser a cheque for that amount, which cheque was drawn in favour of the plaintiff. The cheque was, thereafter, dishonoured by non-payment. Plaintiff has been unable to obtain payment of any portion of the amount from the purchaser.
4. 5.
6. As a consequence of the defendant’s aforesaid breach, the plaintiff sustained damage in the amount of [Rx] made up as follows: [detail] Pleadings/Amlers Precedents of Pleadings/B/Bailment Bailment See :
DEPOSIT
Pleadings/Amlers Precedents of Pleadings/B/Bankers Bankers Related subjects: CHEQUES General: The relationship between a client and a banker is one of mandate, one of debtor and creditor, and not a fiduciary one, although some of the duties of a banker are fiduciary in nature. ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) at 288 If a client issues a cheque, the banker must pay according to its tenor (provided the client has sufficient funds in the relevant account) and is entitled to debit the account of the client. Big Dutchman (SA) (Pty) Ltd v Barclays National Bank Ltd 1979 (3) SA 267 (W) at 280 Volkskas Bpk v Johnson 1979 (4) SA 775 (C) Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C) Should the banker breach this contract, it may be held liable for damages resulting from such breach. The claim is not delictual. Volkskas Bpk v Van Aswegen 1961 (1) SA 493 (A) Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C)
The extent of the damages depends on what was within the contemplation of the parties when the contract was concluded. Only a businessman or trader can claim for injury to creditworthiness. The reason for this is not clear. Trust Bank of Africa Ltd v Marques 1968 (2) SA 796 (T) [Page 56] (The statement in Klopper v Volkskas Bpk 1964 (2) SA 421 (T) to the effect that damages for contumelia can be claimed without allegations relating to a contumacious breach of contract cannot be correct.) See : INIURIA The client has limited obligations towards its banker to assist the banker in performing its mandate. Holzman v Standard Bank Ltd 1985 (1) SA 360 (W) Overdraft: A claim by a banker on an overdraft is simply a claim for moneys lent and advanced, which moneys are repayable on demand. See : INTEREST; LOANS The banker must normally rely on terms implied by banking practice, such as that interest at a certain rate (usually determined with reference to the prime rate of interest) and banking fees are payable and may be debited against the overdraft account, and that compound interest is payable. ABSA Bank Bpk v Saunders 1997 (2) SA 192 (NC) at 203 ABSA Bank Ltd v IW Blumberg & Wilkinson [1997] 2 All SA 307 (A); 1997 (3) SA 669 (SCA) A court is entitled to take judicial notice of the fact that retail banks charge interest on overdrawn accounts. ABSA Bank Bpk h/a Volkskas Bank v Retief [1999] 1 All SA 68 (NC); 1999 (3) SA 322 (NC) Banks often use certificates by managers or accountants to prove the extent of the debtor’s liability. The effect of a certificate on the burden of proof or the liquidity of the claim depends on the terms of the agreement with the client permitting the use of a certificate. Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A) Bankorp Ltd v Hendler 1992 (4) SA 375 (W) Durr v ABSA Bank Ltd [1997] 3 All SA 1 (SCA); 1997 (3) SA 448 (SCA) Reclaiming payment: A banker who wrongly pays a cheque to a third party may reclaim such payment with the condictio sine causa; the condictio indebiti is inappropriate. It is essential to establish that the third party was enriched. An enrichment claim may also lie against the drawer, provided the drawer was enriched. B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) Cf ABSA Bank Ltd v Standard Bank of SA Ltd [1997] 4 All SA 673 (SCA); 1998 (1) SA 242 (SCA) A bank may permit its client to draw against uncleared effects and, if these are dishonoured, the bank may reverse the credit. ABSA Bank Ltd v IW Blumberg & Wilkinson [1997] 2 All SA 307 (A); 1997 (3) SA 669 (SCA) Standard Bank of SA Ltd v Sarwan [2002] 3 All SA 49 (W) Appropriation of payments: In the absence of an agreement to the contrary, the banker may appropriate payments made according to the general rules. Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liq) [1998] 1 All SA 413 (A); 1998 (1) SA 811 (A) See : PAYMENT Delictual liability: A bank may be liable for fraudulent or negligent misrepresentations. The ordinary principles underlying these causes of action apply. See : FRAUD; NEGLIGENT MISREPRESENTATION Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A) Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (A); 2002 (1) SA 396 (SCA) [Page 57] The prime example of a duty of care that does not arise from contract is the duty of a collecting banker to the owner of a lost or stolen cheque to avoid causing the owner pure economic loss by dealing negligently the cheque. This will be the case where the collecting banker receives payment of a cheque from the paying banker on behalf of someone who is not entitled to such payment. A typical case is where a cheque has been marked “not transferable” and, in spite thereof, is credited by the collecting bank to the account of someone other than the payee. The necessary facts to establish such duty must be alleged. Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 801 See : CHEQUES The duty is owed to the “true” owner of the cheque and not to some other party, such as the drawer or payee (who may not be the owner). The owner of a cheque need not be its holder, and, in order to become owner, delivery with the intention of transferring ownership has to be established. First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 (3) SA 556 (A) at 568–570 The onus rests on the plaintiff to allege and prove the elements of its claim. APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) at 1164B–E This includes proof of damages, which damages usually amount to the face value of the cheque, but not necessarily so.
ABSA Bank Bpk v Ons Beleggings BK [2000] 3 All SA 199 (A); 2000 (4) SA 27 (SCA) In assessing negligence, it must be recognised that bankers are professionals who render professional services. Powell v ABSA Bank Ltd t/a Volkskas Bank [1997] 4 All SA 231 (SE) at 241; 1998 (2) SA 807 (SE) at 818 Columbus Joint Venture v ABSA Bank Ltd [2002] 1 All SA 105 (SCA); 2002 (1) SA 90 (SCA) Collecting a cheque on behalf of a person not entitled to it is prima facie negligent. Coetzee v ABSA Bank Bpk 1997 (4) SA 85 (T) at 90 PRECEDENTS Claim – based on overdraft 1. Plaintiff and the defendant entered into an oral agreement on [date] at [place] in terms of which the plaintiff undertook to lend and advance moneys to the defendant on a bank overdraft account. 2. Plaintiff was represented by [name] and the defendant acted personally. 3. The agreement had the following express [tacit] terms: (a) the plaintiff would honour the defendant’s cheques and other instructions up to [amount]; (b) the plaintiff would be entitled to charge the defendant with interest, compounded monthly on the daily balance owing by the defendant from time to time, at the current bank overdraft interest rates prevailing from time to time, which, for the relevant period of the class of overdraft, was [percentage] per annum [or, at the agreed rate of interest calculated at 2% above the plaintiff’s prime rate of interest prevailing from time to time]; [Page 58] (c)
the plaintiff would be entitled to debit the defendant’s overdraft account with advances, bank charges, interest and other charges in accordance with ordinary banking practice;
(d) the balance on the overdraft account would be payable on demand. 4. The balance on the bank overdraft was, on [date], the sum of [amount]. 5. Despite demand, the defendant has failed to pay the said balance. Claim – or damages against banker Plaintiff is a general dealer [specify].
1.
2. In terms of an oral agreement entered into between the plaintiff and the defendant on [date] at [place], the plaintiff has at all material times kept a current banking account at the [specify] branch of the defendant’s bank for purposes of his business. 3. It was a [tacit] term of the contract that the defendant would honour cheques properly drawn on the account provided there were sufficient funds available in that account to meet the cheques presented for payment. 4. On [date], the plaintiff drew a cheque for [amount] on the defendant in favour of [name]. The cheque was duly presented for payment but was dishonoured by non-payment and returned marked “Refer to Drawer”. 5. At all material times, there were sufficient funds to the credit of the plaintiff’s banking account to meet the cheque. 6. Defendant knew that the plaintiff is a trader who receives credit from and who is dependent upon wholesale dealers. The said [name] is a wholesale supplier of goods to the plaintiff. 7. In the premises, the defendant breached its contract with the plaintiff by dishonouring the cheque in the circumstances set out above.
8. By reason of the defendant’s breach of contract, the plaintiff suffered damages in the sum of [amount] for which the defendant is liable. Claim – based on failure to pay cheque according to its tenor 1. Defendant is a bank. 2. In terms of an oral agreement entered into between the plaintiff and the defendant [particularise], the plaintiff was a customer of the defendant and kept a current banking account at the B branch of the defendant for purposes of its business. 3. It was a tacit term of the contract that the defendant would honour cheques properly drawn on it according to their tenor. On [date], the plaintiff drew a cheque on defendant for [Rx] payable to C. The cheque was crossed and marked “not negotiable/not transferable/account payee only”. Defendant paid the cheque contrary to its tenor to D and debited the plaintiff’s account with [Rx].
4. 5. 6.
WHEREFORE plaintiff claims: (a) payment of [Rx]; or (b) an order declaring that the defendant was not entitled to debit the plaintiff’s account with [Rx] and further ordering the defendant to credit the plaintiff’s account with [Rx]. [Cf Hollandia Reinsurance Co Ltd v Nedcor Bank Ltd 1993 (3) SA 574 (W)] Claim – against collecting banker Plaintiff is the true owner of a cheque [dated] for [amount] drawn by A on the defendant bank. Plaintiff was the payee of the cheque, which was crossed and marked “not negotiable”. The cheque was not endorsed by or on behalf of the plaintiff.
1. 2. 3.
[Page 59] 4. Defendant received the cheque from one B, a customer of the defendant, for collection on behalf of B. 5. Defendant paid the proceeds of the cheque to B despite the fact that B had no right to receive such payment. 6. Defendant knew or ought to have known that B was not entitled to the proceeds of the cheque because the plaintiff did not endorse it. 7. In the circumstances, as collecting bank, the defendant owed a duty of care towards the plaintiff as true owner of the cheque, which duty the defendant breached. 8. As a result, the defendant caused a loss to plaintiff in the amount of the cheque. Claim – against collecting banker [From Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank [1996] 4 All SA 278 (W); 1997 (2) SA 591 (W) at 602–603. Similar precedents can be found in Powell v ABSA Bank Ltd t/a Volkskas Bank [1997] 4 All SA 231 (SE); 1998 (2) SA 807 (SE); African Life Assurance Co Ltd v NBS Bank Ltd [2000] 1 All SA 545 (W); 2001 (1) SA 432 (W) at 441–442; and in Energy Measurements (Pty) Ltd v First National Bank of SA Ltd [2002] 2 All SA 396 (W); 2001 (3) SA 132 (W) at 136. There is a stated case in Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd [2000] 4 All SA 393 (A); 2000 (4) SA 915 (SCA).] 1. The plaintiff is S.
2. The defendant is A Bank Ltd, a registered commercial bank with its principal place of business at [address]. 3. Claim A 3.1 At all times material hereto, the plaintiff was the payee and in possession of a cheque dated 7 January 1991 drawn by R on the T Bank (“the drawer’s bank”) on 7 January 1991 for the sum of [Rx]. 3.2 3.3 3.4
The cheque was marked “not transferable”. The plaintiff is unable to annex a copy of the cheque as it is no longer in possession of such cheque. The said cheque was stolen by an employee of the plaintiff, one G. 4.
4.1
Subsequent to the theft as aforementioned, the V branch of the defendant accepted the cheque for collection on behalf of G, who conducted current accounts at the said branch, notwithstanding that the said cheque did not bear the endorsement of the plaintiff. 4.2 Thereafter, the said branch of the defendant caused the cheque to be presented for payment at the drawer’s bank and was paid the proceeds thereof with which it credited the account of G, notwithstanding that the persons as aforementioned had no right to receive or be credited with such proceeds. 4.3 4.4
In effecting payment to the defendant, the drawer’s bank acted in good faith and without negligence. The drawer’s bank credited the account of the defendant with the amount of the said cheque, which, in the premises, it was entitled to do.
4.5 Thereafter, the said branch of the defendant permitted the money to the full amount of the cheque to be withdrawn by G, by reason of the credit of the face value of the cheque consequent upon the deposit thereof. 5. 5.1
5.2
5.3
At all times material hereto, the defendant as the collecting banker was aware, alternatively should have been aware, that G was not entitled to payment of the proceeds of the said cheque and that it did not deal with the said cheque in a manner not likely to cause the plaintiff loss or damage. In the premises, the defendant as collecting banker owed a duty of care to the plaintiff as the payee and the true owner of the cheque to avoid causing loss to the plaintiff through dealing negligently with the cheque. In acting as aforesaid, the defendant, in breach of the said duty, caused the plaintiff to sustain loss in the amount of [Rx]. 6.
In the premises, the defendant is liable to the plaintiff in the aforesaid sum of [Rx]. [Page 60] Alternative claim 1. The plaintiff is S. 2. The defendant is A Bank Ltd, trading under the name and style of V Bank, a registered commercial bank with its principal place of business at [address]. 3.1
3. At all times material hereto, the plaintiff was the payee of a cheque dated 7 January 1991 drawn by R on the T Bank (“the drawer bank”) on 7 January 1991 for the sum of [Rx] which was issued to the plaintiff; alternatively, the plaintiff was at all material times the true owner of the cheque.
3.2 The cheque was marked “not transferable”. 3.3 The plaintiff is unable to annex a copy of the cheque as it is no longer in possession of such cheque. 3.4 The said cheque was stolen by an employee of the plaintiff, one G. 4. 4.1 4.2
At all times material hereto, Mrs G, the wife of G, was a controller employed by the defendant. Acting in the course or scope of her employment with the defendant, the said Mrs G: 4.2.1
4.2.2
4.3
received the said cheque at the V branch of the defendant trading as aforesaid with the intention of cashing it for herself and/or her husband in circumstances where she knew that she was not entitled to the cheque or the proceeds thereof; caused the cheque to be transmitted to the defendant’s central administrative processing centre for onward transmission to and collection by the defendant through the automated clearing bureau from the drawer’s bankers.
As a result of the wrongful and unlawful conduct of Mrs G, for which defendant is responsible, plaintiff has suffered damages in the sum of [Rx], for which damages the defendant is liable. 5.
5.1
5.2
At all material times, R was truly and lawfully indebted to the plaintiff for projects in respect of which R was obliged to pay, the extent of such indebtedness being represented and effected on each occasion by the amount reflected on the face of each cheque forming the subject-matter of each cheque. In discharge of such obligation, R drew each of the cheques referred to as aforesaid and made payable to the plaintiff.
5.3 The said cheques were duly presented for payment and met. 5.4 In consequence thereof, R has been discharged from its obligation to the plaintiff and the drawee bank upon whom each such cheque was drawn has paid in circumstances where it is not liable to the plaintiff. In the premises, the defendant is liable to the plaintiff in the aforesaid sum of [Rx].
6.
Claim based on implied term to reverse credit The agreement contains the additional following implied or tacit terms: (a)
(b)
(c)
in the event of a cheque being deposited into the defendant’s account not being honoured within a reasonable time, the plaintiff would be entitled to debit the defendant’s account retrospectively to the date of the credit with the amount so credited; in the event of withdrawals’ being made out of the account against a credit, which credit is subsequently reversed as aforesaid thereby causing the account to show a debit balance, the defendant is obliged to repay the amount of such debit balance on demand to the plaintiff; the plaintiff will at all times act in good faith and exercise reasonable care but is not responsible for ensuring that depositors or account-holders have lawful title to cheques collected.
Pleadings/Amlers Precedents of Pleadings/B/Bills of Exchange Bills of Exchange See : BANKERS, CHEQUES [Page 61] Pleadings/Amlers Precedents of Pleadings/B/Breach of Contract
Breach of Contract See : CONTRACT: BREACH OF Pleadings/Amlers Precedents of Pleadings/B/Breach of (Marriage) Promise Breach of (Marriage) Promise Jurisdiction: As will be indicated, the claim may have both a delictual and a contractual element. If a court has jurisdiction on one ground, it will also have jurisdiction in respect of the other cause of action. Cause of action: An engagement is a contract to marry in the future. A breach of this promise can give rise to two causes of action based on: (a) breach of contract; and (b) an iniuria. Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) at 36 There is authority to the effect that, in awarding damages, it is not necessary for a court to distinguish in its judgment between the contractual and delictual elements but that failure to do so may cause difficulties on appeal if the higher court wishes to interfere with the award. Bibi v Variawa 1965 (4) SA 675 (N) The contract: The plaintiff must allege and prove a contract to marry. Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) at 29 In this regard, it must be alleged whether the contract was oral, in writing or tacit, whether the parties acted personally, and where the contract was entered into. Uniform rule 18(6) The breach: The plaintiff must allege and prove the breach of the contract, which consists of a refusal to proceed with the marriage. Wrongfulness of the breach: In respect of the contractual part of the claim, unilateral repudiation is prima facie proof of the wrongfulness of the breach. It is for the defendant to allege and prove facts of a sufficiently serious nature justifying such repudiation. Iusta causa is, in this context, an elastic concept and the court has a wide discretion. Bull v Taylor 1965 (4) SA 29 (A) at 35 Krull v Sangerhaus 1980 (4) SA 299 (E) In respect of the delictual part of the claim, the plaintiff has to allege and prove that the breach was wrongful. Guggenheim v Rosenbaum 1961 (4) SA 21 (W) at 35 Bull v Taylor 1965 (4) SA 29 (A) at 37 It is, however, difficult to perceive how, in the same action, the onus in respect of the same fact can lie on both parties. It is submitted that a breach is at least prima facie wrongful (in the delictual sense) and that the defendant ought to justify such breach. Animus iniuriandi : The contractual liability of the defendant does not depend on fault. In order to succeed with the delictual claim, the plaintiff must allege and prove that the breach was “injurious or contumelious”. Guggenheim v Rosenbaum 1961 (4) SA 21 (W) at 35 Bull v Taylor 1965 (4) SA 29 (A) at 37 [Page 62] Damages: Contractual damages normally consist of the loss of the financial benefits of the marriage as well as the actual monetary loss or expenditure reasonably incurred. As with other contractual damages, the plaintiff can succeed only if the damages flow directly from the breach or if the damages fell within the contemplation of the parties when the contract was entered into. Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) Delictual damages of a general nature need not be particularised. The quantum depends on the nature and degree of contumacy. Donations: In the event of a cancellation, the guilty party must return to the innocent party donations made with a view to the marriage. The guilty party cannot reclaim any donations. Van Duyn v Visser 1963 (1) SA 445 (O) Defences: The ordinary defences available in cases of breach of contract or iniuria are available to the defendant. Two are noted. Invalidity of the contract: If the contract to marry is invalid, the defendant has a valid defence. A contract with a person who was already married at the time, which contract was entered into on the understanding that the existing marriage would be dissolved, is void as being contra bonos mores. If the plaintiff was unaware of the defendant’s existing marriage, an action for damages may be brought against the defendant on the ground of an iniuria.
Claassen v Van der Watt 1969 (3) SA 68 (T) Such ignorance on the plaintiff’s part must be pleaded by the plaintiff. Iusta causa : Repudiation can be justified by facts serious enough to interfere wholly or partly with the aims of marriage or with its anticipated happiness. It is for the defendant to allege and prove iusta causa. Bull v Taylor 1965 (4) SA 29 (A) at 35 Krull v Sangerhaus 1980 (4) SA 299 (E) Thelemann v Von Geyso 1957 (3) SA 39 (W) M NO v M 1991 (4) SA 587 (D) PRECEDENTS Claim – based on a breach of promise 1. On [date] at [place], the plaintiff and the defendant orally agreed to marry each other within a reasonable time or on [date]. 2. On [date] at [place], the defendant repudiated the said agreement by orally refusing to proceed with the marriage or by marrying [name]. 3. The repudiation was wrongful and the defendant acted animo iniuriandi by virtue of [set out facts that indicate contumacy, such as a non-appearance at the wedding ceremony]. 4. During the existence of the engagement, the plaintiff donated to the defendant in contemplation of the marriage the following gifts: [give particulars]. 5. By virtue of the defendant’s breach of the contract, the defendant is obliged to return the aforesaid gifts but has failed to do so. 6. As a further result of the defendant’s breach of contract, the plaintiff suffered damages in the amount [set out] calculated as follows: (a) loss of financial benefits of the marriage [detail]; (b) wasted expenses incurred in respect of the wedding reception [detail]. [Page 63] 7.
(a)
It was within the contemplation of the parties at the conclusion of the agreement that the plaintiff would resign from her post as [set out details] a month prior to the marriage date. (b) (c)
Pursuant thereto, the plaintiff did resign from her post on [date]. As a result of the defendant’s breach of contract, the plaintiff lost her income for [period] in the amount of [amount].
8. Plaintiff furthermore suffered damages in the amount of [sum] by reason of the defendant’s contumacious breach of contract whereby the plaintiff’s personal dignity and reputation were impaired. WHEREFORE plaintiff claims: (a) Return of [detail gifts]. (b) Payment of [amount] being damages. Plea – of justification to claim for a breach of promise Defendant admits that he repudiated the contract to marry on [date] at [place]. Defendant denies that the repudiation was wrongful or contumacious.
1. 2.
3. Defendant pleads that the repudiation was justified because [set out facts]: (a) at the time of the agreement to marry, the defendant believed that the plaintiff was a chaste woman; (b) subsequent to the agreement, the defendant ascertained that the plaintiff was in fact not a chaste woman having lived as man and wife with [name] during [period]; (c)
defendant thereupon lawfully advised the plaintiff that, in view of the foregoing, he no longer intended to marry her.
4. Defendant admits receipt of the said gifts but denies, in the light of the foregoing, any obligation to return them to plaintiff. Pleadings/Amlers Precedents of Pleadings/B/Bribery Bribery See : AGENCY Pleadings/Amlers Precedents of Pleadings/B/Building Contracts Building Contracts See : LOCATIO CONDUCTIO OPERIS Pleadings/Amlers Precedents of Pleadings/C/Carriers Carriers Related subject:
ADMIRALTY CLAIMS DEPOSIT EXEMPTION CLAUSES
General: A carrier’s liability for damage to or loss of the goods carried depends on the terms of the contract between the carrier and the principal and, in the absence of any term dealing with the matter, it is assumed that the carrier has a duty to exercise reasonable care in respect of the goods entrusted to it. The provisions of the praetor’s edict de nautis, cauponibus et stabularis apply, as far as carriers are concerned, only in respect of carriage on water and not by land or air. Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A) Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 (3) SA 42 (A) [Page 64] The liability of an air carrier is affected by international conventions. KLM Royal Dutch Airlines v Hamman [2002] 3 All SA 484 (W); 2002 (3) SA 818 (W) Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd [2001] 2 All SA 506 (W); 2001 (4) SA 211 (W) The onus of proving the terms of the contract rests on the plaintiff. Hence, should the carrier allege that the contract contains a term limiting that carrier’s liability, the plaintiff bears the onus of proving otherwise. Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 767 WJ Lineveldt (Edms) Bpk v Immelman 1980 (2) SA 964 (O) Van Deventer v Louw 1980 (4) SA 105 (O) Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers [2001] 2 All SA 646 (NC); 2001 (3) SA 110 (NC) If the edict does not apply, the carrier is in the position of a depository who is under a duty to exercise reasonable care in respect of the goods entrusted to it. The carrier then bears the onus to show that the loss or damage occurred without its fault. Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 762 Such onus arises only after the plaintiff has established that the goods have indeed been damaged and also the extent of the loss. Alex Carriers (Pty) Ltd v Kempston Investments (Pty) Ltd 1998 (1) SA 662 (E) at 674 Praetor’s edict: If the edict does apply, the carrier is liable without fault, unless it can establish that the loss or damage was the result of: (a)
a damnum fatale ; (b) (c) (d)
vis maior ; the sole negligence of the consignor; or an inherent vice or latent defect in the goods. Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A) OK Bazaars 1929 Ltd v Stern and Ekermans 1976 (2) SA 521 (C) at 529
It seems that any event which is unforeseen, unexpected or irresistible and which human foresight cannot guard against may be raised as a defence. Gabriel v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C) at 600 Remuneration: A carrier claiming remuneration must allege and prove due performance of the contract. If the defendant alleges that the goods were damaged or lost, the carrier must establish the contrary. Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd 1984 (2) SA 24 (SWA) Exemption clauses: If there is an exemption clause – for instance, if the carriage takes place at the owner’s risk – the owner must allege and prove facts that place her or his conduct outside the terms of the limitation in order for her or him to be able to claim damages successfully. This usually involves, at least, an allegation and proof of gross negligence. Essa v Divaris 1947 (1) SA 753 (A) PRECEDENTS Claim – for payment 1. On [date] at [place], the parties entered into an oral agreement in terms of which plaintiff undertook to remove and convey defendant’s household effects from [address] to [address]. [Page 65] 2. It was agreed that plaintiff would be paid [amount] for such removal and conveyance. 3. Plaintiff duly performed his obligations in terms of the agreement, but defendant has failed to pay to plaintiff the agreed sum or any other sum. Claim – for damages against carrier 1. On [date] at [place], the parties entered into an oral agreement in terms of which defendant undertook to convey certain cattle belonging to plaintiff from [place] to [place] for [amount]. 2. It was a[n implied] term of the agreement that the cattle would be delivered at their destination in a sound and healthy condition. 3. Despite this, the cattle did not arrive in a sound and healthy condition, but [number] died en route and [number] were so badly injured that they had to be put down. [Number] were so injured as to require veterinary treatment: [detail]. 4. As a result of defendant’s breach of the aforesaid term, plaintiff has suffered damages of [amount] calculated as follows: [detail]. Plea – to claim for damages against carrier 1. Defendant admits that the contract was entered into as alleged. 2. Defendant further admits that the cattle died or were injured as alleged. 3. Defendant pleads that the death and injuries sustained by the cattle were caused by the weakened and diseased condition in which the cattle were delivered to defendant for carriage and that, therefore, defendant is
not liable for any loss sustained by plaintiff. Alternatively, defendant pleads that the damage to plaintiff’s property was caused by vis maior, particulars of which are as follows: (a) on [date] and while defendant’s vehicle was en route, major flooding took place on the road between [place] and [place]; (b)
as a result of this flooding, defendant’s vehicle became bogged down and was unable to proceed on its journey;
(c) the driver of the vehicle was unable to leave the vehicle to obtain assistance; (d) defendant was obliged to keep the cattle on the lorry for [days] during which time it was impossible to obtain food or water for the cattle. Pleadings/Amlers Precedents of Pleadings/C/Cession Cession Citation: Magistrates’ Courts rule 6(5)(c) requires that, where the plaintiff sues as cessionary, the summons must state the name, address and description of the cedent at the date of the cession, and the date of the cession. Contract of cession: A party relying on a cession must allege and prove the contract of cession – ie, a contract in terms of which a personal (and not a real) right against a debtor is transferred from the creditor (cedent) to a new creditor (cessionary). Lief NO v Dettmann 1964 (2) SA 252 (A) Johnson v Inc General Insurances Ltd 1983 (1) SA 318 (A) This is done by the production in evidence of an apparently regular and valid cession, whereupon the evidentiary burden shifts to the party disputing the cession. Hippo Quarries (Tvl) (Pty) Ltd v Eardley 1992 (1) SA 867 (A) at 873 [Page 66] The intention of a cession agreement must be to divest the cedent of her or his rights against the debtor. Skjelbreds Rederi AS v Hartless (Pty) Ltd 1982 (2) SA 710 (A) Densam (Pty) Ltd v Cywilnat (Pty) Ltd 1991 (1) SA 100 (A) Limitations on cession: A claim arising from an infringement of personality rights is not capable of cession before the close of pleadings (litis contestatio). Government of RSA v Ngubane 1972 (2) SA 601 (A) Contractual rights are not capable of cession if the contract, by its nature, involves a dilectus personae (ie, such rights are personal to the creditor), or if the contract itself prohibits a cession and the debtor has an interest in this prohibition. Trust Bank of Africa Ltd v Standard Bank of SA Ltd 1968 (3) SA 166 (A) Dettmann v Goldfain 1975 (3) SA 385 (A) Smuts v Booyens; Markplaas (Edms) Bpk v Booyens [2001] 3 All SA 536 (A); 2001 (4) SA 15 (SCA) Delivery: Only if the existence of the ceded right depends on that right’s incorporation in a document – as is the case with negotiable instruments – is a cession incomplete without delivery of the document. Botha v Fick 1995 (2) SA 750 (A) at 778F–779B In other cases, delivery of the document evidencing the right constitutes proof of a cession but does not affect its validity. Botha v Fick 1995 (2) SA 750 (A) Cf Standard General Insurance Co Ltd v SA Brake CC 1995 (3) SA 806 (A) Effect on locus standi : A cession of the interest in a claim destroys the cedent’s locus standi, but a cession of an interest in the result of the litigation does not. Portion 1 of 46 Wadeville (Pty) Ltd v Unity Cutlery (Pty) Ltd 1984 (1) SA 61 (A) African Consolidated Agencies (Pty) Ltd v Siemens Nixdorf Information Systems (Pty) Ltd 1992 (2) SA 739 (C) A cessionary in an out-and-out cession cannot sue in the name of the cedent. Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C); 1998 (4) SA 606 (C) A cession after litis contestatio does not affect locus standi. The cessionary can take the place of the cedent by means of a formal substitution in terms of the rules of court. Waikiwi Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd 1978 (1) SA 671 (A) Brummer v Gorfil Brothers Investments (Pty) Ltd [1999] 2 All SA 127 (SCA); 1999 (3) SA 389 (SCA) Cession in security of a debt: As a rule, a cessionary who holds a cession in security of a debt is not entitled to recover directly from the debtor until such time as the debtor is in default. The cession leaves a reversionary right with
the cedent. Should the cedent pay the cessionary in full, the ceded debt (or what is left of it) reverts to the cedent. As long as the cession is current and the cedent is indebted to the cessionary, the cedent has no enforceable right against the debtor. The terms of the cession may be such that the cedent retains legal standing in the cession and is thus entitled to sue the debtor. This is usually the position where debts have been ceded to a bank in order to secure an overdraft: unless the overdraft has been called up, the debtor remains entitled to claim from its debtors in its own name. Leyds NO v Noord-Westelike Koöperatiewe Landboumaatskappy Bpk 1985 (2) SA 769 (A) Marais NNO v Ruskin NO 1985 (4) SA 659 (A) [Page 67] Incledon (Welkom) (Pty) Ltd v Qwaqwa Development Corp Ltd 1990 (4) SA 798 (A) Land- en Landboubank van Suid-Afrika v Die Meester 1991 (2) SA 761 (A) at 771 Ovland Managemant (Tvl) (Pty) Ltd v Petprin (Pty) Ltd 1995 (3) SA 276 (N) PG Bison Ltd v Master of the High Court [2000] 1 All SA 363 (SCA); 2000 (1) SA 859 (A) Aussenkehr Farms (Pty) Ltd v Trio Transport CC [2002] 3 All SA 309 (A); 2002 (4) SA 483 (SCA) On-cession by a cessionary of a right ceded in security of a debt can take place only with the consent of the first cedent. Sechold Financial Services (Edms) Bpk v Gazankulu Ontwikkelingskorporasie Bpk [1997] 2 All SA 489 (A) at 497 Defences: The following defences are available to a debtor sued by a cessionary: (a)
The debt was ceded in part without the debtor’s consent. Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöperasie Bpk 1972 (1) SA 761 (A)
(b) The debt could not have been ceded for one of the reasons given above. (c) The debtor has performed in terms of its obligation to the cedent, prior to, or without knowledge of, the cession. The debtor bears the onus to establish these facts. Trust Bank van Afrika Bpk v Oosthuizen 1962 (2) SA 307 (T) (d) Any defence (except defences of a personal nature) the debtor would have had against the cedent. (e) The cession was effected with the object of depriving the debtor of the opportunity of asserting a counterclaim against the cedent. In such a case, it must be shown that the cessionary was a knowing party to this fraud. LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A) This last defence amounts to a dilatory plea in which a stay of the action is claimed, pending the finalisation of an action against the cedent, and claiming that, thereafter, there be a set-off. LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A) In spite of the fraud, the cessionary does not become a party to the contract and the debtor has no counterclaim against the cessionary. Munira Investments (Pty) Ltd v Flash Clothing Manufacturers (Pty) Ltd 1980 (1) SA 326 (D) Regional Factors (Pty) Ltd v Charisma Promotions 1980 (4) SA 509 (C) Beukes v Claassen 1986 (4) SA 495 (O) Counterclaims: As stated, a cession does not make the cessionary a party to the contract between the debtor and the cedent. The debtor is, therefore, not entitled to base a counterclaim on the contract against the cessionary. Van Zyl v Credit Corp of SA Ltd 1960 (4) SA 582 (A) PRECEDENTS Claim – on ceded debt [Set out in full the indebtedness to the cedent].
1.
2. On [date], the cedent in writing ceded his right to his claim against the defendant to the plaintiff. A copy of the deed of cession is annexed hereto. 3. Despite demand, the defendant failed to pay the plaintiff the amount of [amount]. [Page 68] Plea – for payment to cedent 1. Defendant admits that he owed the alleged cedent the sum of [amount] arising from the sale to him by the alleged cedent of goods on [date].
2. Defendant has no knowledge of the alleged cession by the cedent to the plaintiff, does not admit it and puts plaintiff to the proof thereof. 3. Defendant avers that he was at no time notified of the alleged cession and that he, without knowledge of the alleged cession, on [date] duly paid the alleged cedent the sum of [amount] in discharge of his indebtedness to him. Pleadings/Amlers Precedents of Pleadings/C/Cheques Cheques Related subject:
BANKERS
Procedure: A cheque is a liquid document and provisional-sentence procedure is available in the high court and in magistrates’ courts, on a claim based on a cheque. Uniform rule 8 Magistrates’ Courts rule 14A Claim on a dishonoured cheque against the drawer: A plaintiff claiming on a dishonoured cheque must allege and prove the following facts: (a)
That it is the legal holder of the cheque. Trust Bank van Afrika Bpk v Bendor Properties Ltd 1977 (2) SA 632 (T) This requires that the plaintiff be in lawful possession of the cheque Ganie v Parekh 1962 (4) SA 618 (N) in one of the following capacities: (i) As payee. Where the plaintiff’s name differs from that indicated on the cheque, the plaintiff may make an appropriate allegation to link itself to that name – for example, by alleging and proving that the name on the cheque is the plaintiff’s trade name. Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Self-Arc (Pty) Ltd 1986 (4) SA 488 (T) (ii) As the endorsee. Nedbank Ltd v Aldick 1981 (3) SA 1007 (D) Ewing, McDonald & Co (Pty) Ltd v Heyns 1973 (3) SA 747 (NC) (iii) As its bearer. Pienaar v Maritz t/a JJ Coal Suppliers 1985 (1) SA 547 (T)
(b)
That the document is a cheque. Hiles v Venter 1983 (4) SA 22 (T) H & F Spares Centre (Pty) Ltd v Grand Prix Spares 1986 (4) SA 974 (N) Whether it is a cheque should appear from the document itself.
(c) That the cheque was drawn by the defendant. Marshall v Bull Quip (Pty) Ltd 1983 (1) SA 23 (A) Jachris (Pty) Ltd v Fourie 1984 (4) SA 501 (T) (d) That the cheque was duly presented for payment Bills of Exchange Act 34 of 1964 s 54 Abraham v Du Plessis 1962 (3) SA 162 (T) Nampak Products Ltd t/a Nampak Flexible Packaging v Sweetcor (Pty) Ltd 1981 (4) SA 919 (T) [Page 69] or that presentment was dispensed with. Bills of Exchange Act 34 of 1964 s 44 Rovic Noordkaap v Roux 1980 (4) SA 59 (O) Commercial Union Trade Finance v Republic Bottlers of SA (Pty) Ltd t/a Booth’s Bottle Store 1992 (4) SA 728 (D) Presentment may take place through the clearing-house system. Navidas (Pty) Ltd v Essop, Metha v Essop 1994 (4) SA 141 (A)
(e) That the cheque was dishonoured. Bills of Exchange Act 34 of 1964 s 45 Moraitis v De Canha 1984 (1) SA 420 (W) (f) That notice of dishonour was given in terms of section 46, Pine Designs (Pty) Ltd v Abt 1976 (3) SA 795 (O) or dispensed with for a reason set out in section 48 (which is usually the position if the bank dishonoured the cheques). Braz v Afonso [1997] 4 All SA 428 (SCA); 1998 (1) SA 573 (SCA) Claim against an endorser: A claim against an endorser requires that the identity of the drawer of the cheque be alleged. In addition, the allegation must be made that the defendant endorsed such cheque. Sappi Manufacturing (Pty) Ltd v Standard Bank of South Africa Ltd [1996] 4 All SA 487 (A); 1997 (1) SA 457 (A) Absolute defences: The following defences can be raised against any holder, including a holder in due course: (a)
No-one is liable unless he or she signed the document in the capacity in which the defendant is being sued. Bills of Exchange Act 34 of 1964 s 23
(b) Forgery is also an absolute defence. The onus is on the plaintiff to disprove the defence because the defendant is simply denying its signature. Bills of Exchange Act 34 of 1964 s 23 Lansdown NO v Wajar 1973 (4) SA 329 (T) It is no longer a defence that an agent exceeded a mandate in signing the cheque. Defences between immediate parties: The drawer of a cheque is entitled to raise against the payee of a cheque any defence he or she could have raised in respect of the underlying transaction between the parties. For instance, if the cheque was given in payment under a contract and the contract is validly cancelled, the drawer can rely on these facts but must allege and prove them. Froman v Robertson 1971 (1) SA 115 (A) A defendant may also rely on rectification of the document – for instance, in relation to the capacity in which the defendant signed the cheque, namely personally or in a representative capacity. Dickinson v SA General Electric Co (Pty) Ltd 1973 (2) SA 620 (A) Marshall v Bull Quip (Pty) Ltd 1983 (1) SA 23 (A) See : RECTIFICATION Holder in due course: Only absolute defences are available against a holder in due course. Bills of Exchange Act 34 of 1964 s 36 read with s 37 Ramsukh v Diesel-Electric (Natal) (Pty) Ltd [1997] 3 All SA 209 (A); 1997 (4) SA 242 (SCA) [Page 70] There is a presumption that a holder is one in due course. If a defendant proves, or if it is admitted, that the issuing or subsequent negotiation of a cheque was tainted with fraud or illegality, the plaintiff will bear the onus of proving that, after such fraud or illegality, he or she gave value in good faith for the cheque. Bills of Exchange Act 34 of 1964 s 28(2) Van Rooyen v Du Plooy 1985 (1) SA 812 (T) Statutory liability and defences: Sections 78, 79 and 81 of the Act create a number of liabilities and defences relating to cheques. Section 78(4): This provision principally makes the bank on which a cheque is drawn liable: (a) (b)
to the cheque’s “true owner”; for any loss sustained by the owner: if the bank pays the cheque, if it is crossed generally, to someone than a bank; or
(i)
(ii) if the bank pays the cheque, if it is crossed especially, to someone other than the bank to which it is crossed. The plaintiff has to establish all these elements.
There are exceptions (which will not be dealt with in detail) contained in the proviso to the subsection which apply if the cheque has been altered and the bank acts in good faith and without negligence. Section 79: If the bank: (a) (b) (c) (d) (e)
on which a crossed cheque is drawn, in good faith and without negligence, pays the cheque according to the tenor of the crossing, the bank has no further liability, under the cheque, to the true owner.
If the cheque came into the hands of the payee, and the bank has paid as aforesaid, the drawer also has no further liability to the true owner of the cheque. The onus of proving, for purposes of section 79, that the payment was made in good faith and without negligence rests on the bank. Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) at 394D–E Trans-Atlantic Equipment (Pty) Ltd v Minister of Transport of the Republic of South Africa [2002] 1 All SA 298 (T); 2002 (2) SA 167 (T) Standard Bank of SA Ltd v Nair (Bissessur, Third Parties) 2001 (1) SA 998 (D) A bank acting both as collecting and paying banker is entitled to the protection of the section 79. Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) at 397D–E Section 81(1): If a cheque: (a) was stolen or lost and (b) was crossed “not negotiable”, and (c) was paid by the drawee bank under circumstances which do not render such bank liable to the true owner under sections 78 or 79, [Page 71] (d) the true owner is, if he or she suffered any loss as a result of the theft or loss of the cheque, (e) entitled to recover from any possessor of the cheque after the theft or loss, (f) the true owner’s loss or the amount of the cheque, whichever is the lesser. The plaintiff under a claim in terms of section 81(1) bears the onus of alleging and proving its elements. APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) at 1163J–1164B Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd [1999] 1 All SA 285 (A); 1999 (1) SA 831 (SCA) Negligence is not an element of the claim, and the negligence of the plaintiff is not a defence. Tedco Management Services (Pvt) Ltd v Grain Marketing Board 1997 (1) SA 196 (ZSC) at 202 The defendant must have possessed the cheque. In this regard, a bank holding a cheque for collection does not “possess” it, whereas the customer on whose behalf the cheque is being held, does. Van Hulsteyns Attorneys v Government of the RSA [2002] 3 All SA 64 (A); 2002 (2) SA 295 (SCA) For the purposes of section 81, obtaining a cheque by means of false pretences amounts to theft. Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd [1999] 1 All SA 285 (A); 1999 (1) SA 831 (SCA) True owner: There is a difference between the owner of a cheque and the “true owner” as the term is used in these provisions. ABSA Bank Bpk v Coetzee [1998] 1 All SA 1 (SCA) The duty of care is owed to the “true” owner of the cheque and not to some other party such as the drawer or payee (who may not be the owner). The owner of a cheque need not be its holder and, in order for the cheque’s holder to become its owner, delivery with the intention of transferring ownership has to be established. First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 (3) SA 556 (A) at 568–570
Section 81(3): There is a duty on a person who obtains possession of a stolen cheque to furnish its true owner with relevant information concerning such cheque. If that person fails to do so, he or she is liable to the owner of the cheque under section 81(1). Optimprops 1030 CC v First National Bank of SA [2001] 2 All SA 24 (D) Optimprops 1030 CC v First National Bank of SA [2002] 4 All SA 582 (N) PRECEDENTS Claim – based on dishonoured cheque 1. Plaintiff is the holder of a cheque dated [date] for the sum of [amount] drawn by the defendant in favour of “cash” upon the [specify] branch of the [specify] bank. [Page 72] 2. Plaintiff duly presented the cheque for payment on [date] and the cheque was dishonoured by non-payment, the defendant having countermanded payment thereof. 3. Notice of dishonour is dispensed with in terms of section 48(2)(c) of the Bills of Exchange Act 34 of 1964, since the defendant has countermanded payment of the cheque. Notwithstanding due demand, the defendant has failed to pay to the plaintiff the aforesaid sum of [amount]. A copy of the face and reverse side of the said cheque is annexed hereto and marked “A”.
4. 5.
Claim – based on section 81 of Act 34 of 1964 1. Plaintiff is the true owner of a cheque [number] drawn by A upon B Bank for the sum of [Rx]. 2. The cheque was crossed as authorised by Act 34 of 1964 and bore the words “not negotiable”. 3. The cheque was stolen by C and possession passed thereafter to the defendant, who gave consideration for the cheque. 4. The cheque was thereafter paid by B Bank under circumstances that did not render B Bank liable, in terms of the Act, to the plaintiff as true owner of the cheque. 5. Plaintiff suffered a loss equal to the value of the cheque by virtue of the theft of the cheque. Cf Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A) Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd [1999] 1 All SA 285 (A); 1999 (1) SA 831 (SCA) The Godfather v Commissioner for Inland Revenue 1993 (2) SA 426 (N) Plea – in terms of Act 34 of 1964 section 79 Defendant denies its indebtedness to the plaintiff because: the cheque was crossed generally; defendant effected payment to a banker, viz B Bank; it had no reason to suspect that the cheque had been stolen; it had no way of ascertaining that payment was not in fact effected to the identified payee; it consequently effected payment in good faith and without negligence. [Cf Hollandia Reinsurance Co Ltd v Nedcor Bank Ltd 1993 (3) SA 574 (W).] Pleadings/Amlers Precedents of Pleadings/C/Citations Citations Related subject:
1. 2. 3. 4. 5.
LOCUS STANDI General: Initiating processes must, in terms of the court rules, describe properly the parties to the litigation. Legal standing must appear from the description of the parties or must otherwise be dealt with; it must also appear ex facie the initiating documents. Although it is usual to do so, it is not necessary to restate the citation in the particulars of claim or declaration. Natural persons: Magistrates’ Courts rule 6(5) and Uniform rule 17(4) prescribe the requirements in similar but not identical terms. Magistrates’ Courts rule 6(5) states that a summons must: (a) show the surname of the defendant by which the defendant is known to the plaintiff, the defendant’s sex and residence or place of business, and, where known, the first name or initials, occupation and, in the case of a woman, her marital status, and, if the defendant is sued in a representative capacity, the capacity in which the defendant is sued; [Page 73] (b) show the first name, surname, sex, occupation and place of residence of the plaintiff; (c) where the plaintiff sues as a cessionary, show the name, address and description of the cedent at the date of the cession, and the date of the cession; (d)
where the plaintiff sues in a representative capacity, state the capacity in which he or she sues.
Uniform rule 17(4) requires that every summons must set forth: (a) the name (including, where possible, the first name or initials) by which the defendant is known to the plaintiff, the defendant’s residence or place of business and, where known, occupation and, if sued in any representative capacity, such capacity. The summons must also state the defendant’s sex and, if the defendant is a female, her marital status; (b)
the full names, sex and occupation and the residence or place of business of the plaintiff, and, where the plaintiff sues in a representative capacity, such capacity. If the plaintiff is a female, the summons shall state her marital status.
In so far as these rules require that the marital status of females must be stated, they can be ignored on constitutional grounds. Nedcor Bank Ltd v Hennop 2003 (3) SA 622 (T) at 626 Close corporation: A close corporation is a juristic person with full legal capacity. Close Corporations Act 69 of 1984 s 2 It must be sued in its own name, and full particulars of its registered address or principal place of business within the jurisdiction of the court concerned, must be stated. Companies: A company is a legal entity separate and distinct from its members and directors. Companies Act 61 of 1973 s 65 It must sue and be sued in its corporate name. Full particulars of the nature of the company must be stated, as must the country of the company’s incorporation and its registered address or (in the case of a defendant) the principal place of business within the jurisdiction of the court. Companies in liquidation: A liquidator of a company in liquidation may institute or defend legal proceedings on behalf of that company if he or she is authorised to do so. In addition, the master of the high court or the high court itself may grant the liquidator the necessary powers. In the absence of any such authority, liquidators have no power to bring proceedings in name of, or on behalf of, the company. Companies Act 61 of 1973 s 386 Ex parte Venter & Spain NNO: Fordom Factoring Ltd Intervening; Venter & Spain v Povey 1982 (2) SA 94 (D) The liquidator must bring the action in the name of the company. However, a practice has developed according to which such actions are brought in the name of the liquidator in a representative capacity. Companies Act 61 of 1973 s 386(4)(a) Fundstrust (Edms) Bpk (in likwidasie) v Marais [1996] 3 All SA 574 (C); 1997 (3) SA 470 (C) Shepstone & Wylie v Geyser NO [1998] 3 All SA 349 (A); 1998 (3) SA 1036 (SCA) [Page 74] This practice is not generally accepted and should be avoided. Ex parte Liquidator Vautid Wear Parts (Pty) Ltd (in liquidation) 2000 (3) SA 96 (W) at 103
Executors and trustees: The duly appointed executor is the legal representative of the deceased estate, and proceedings by or against the estate must be in the name of the executor acting in this official capacity. Du Toit v Vermeulen 1972 (3) SA 848 (A) Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (SCA) Government and state officials: The citation of ministers of state and public officials, in their official capacity, is regulated by statute. They must be cited by their official title and not by name. General Law Amendment Act 62 of 1955 s 34 In any proceedings against the State, the minister of the department concerned should be cited as the nominal defendant or respondent. This also applies to a member of the Executive Council of a province. State Liability Act 20 of 1957 s 2 Jayiya v MEC for Welfare, EC Government [2003] 2 All SA 223 (SCA) para 5 Action may also be instituted or defended in the name of the State. Die Regering van die Republiek van Suid-Afrika v Santam Versekeringsmaatskappy Bpk 1964 (1) SA 546 (W) Partners, firms and unincorporated bodies: Any two or more persons claiming or being sued as co-partners may sue or be sued in the name of the firm of which they were co-partners when the cause of action arose. Any person carrying on business in a name or style other than her or his own name may sue or be sued in such a name or style as if it were the name of a firm. The provisions of the rule apply, mutatis mutandis, to an unincorporated company, syndicate or association. Scott v Golden Valley Supermarket [2002] 3 All SA 1 (A); 2002 (6) SA 297 (SCA) Magistrates’ Courts rule 54 Cf Uniform rule 14 A partnership, firm or an association may sue or be sued in its name and a plaintiff suing a partnership or a firm need not state the names of the partners. A voluntary association for gain is not a valid legal entity if it has more than twenty members, and has no legal standing. Mitchell’s Plain Town Centre Merchants Association v McLeod [1996] 3 All SA 297 (A); 1996 (4) SA 159 (SCA) Public corporations: Public corporations are usually created by special statute. Their corporate status and the establishing statute ought to be stated. PRECEDENTS Natural persons The plaintiff [defendant] is Mary Smith, an adult female bookkeeper, residing at [address] OR having her business at [address] OR employed at [address]. The plaintiff [defendant] is Mary Smith, an adult female bookkeeper, residing at [address] OR having her business at [address] OR employed at [address], who institutes this action [who is sued] in her capacity as mother and sole guardian of her minor son, John Smith. The defendant is M Smith, an adult female whose further particulars are not known to the plaintiff of [address]. [Page 75] Close corporations The plaintiff [defendant] is J Smith CC, a close corporation, incorporated in terms of the Close Corporations Act 69 of 1984, with its registered office at [address] OR with its principal place of business within the jurisdiction of this court at [address]. Companies The plaintiff [defendant] is J Smith & Co (Pty) Ltd, a company with limited liability, incorporated in terms of the Companies Act 61 of 1973, with its registered office at [address] OR with its principal place of business within the jurisdiction of this court at [address]. Companies in liquidation The plaintiff [defendant] is J Smith & Co (Pty) Ltd, a company in liquidation by order of court [detail], herein represented by its duly appointed liquidator [name, address and detail of appointment]. The plaintiff [defendant] is [name of liquidator], herein cited in his capacity as duly appointed liquidator of J Smith & Co (Pty) Ltd, a company in liquidation by order of court [detail]. Government and state officials The plaintiff [defendant] is the Republic of South Africa, herein represented by the Minister of [department], acting in her/his official capacity.
The plaintiff [defendant] is the President of South Africa/Minister of [department]/Premier of the Province of [name]/Director-General of [department], acting in her/his official capacity. Partnerships, firms and associations The plaintiff [defendant] is Omega Trading, a partnership [firm] trading as retailers and having its place of business at [address]. The plaintiff [defendant] is Gauteng Tennis Club, a voluntary association and tennis club, of [address]. Public corporations The plaintiff [defendant] is the South African Inventions Development Corporation, a body corporate established by section 2 of the Inventions Development Act 31 of 1962. The plaintiff [defendant] is Telkom SA Ltd, a public company contemplated in section 3(1) of the Post Office Act 44 of 1958. The plaintiff [defendant] is Transnet Ltd, a public company incorporated in terms of the Legal Succession to the South African Transport Services Act 9 of 1989 read with the Companies Act 61 of 1973. Pleadings/Amlers Precedents of Pleadings/C/Close Corporations Close Corporations Related subject:
COMPANIES
Citation: A close corporation is a juristic person with full legal capacity. Close Corporations Act 69 of 1984 s 2 Muller v Coca-Cola Sabco (SA) (Pty) Ltd 1998 (2) SA 824 (SE) It must sue and be sued in its own name. See : CITATIONS [Page 76] Jurisdiction: Any high court or magistrate’s court within whose area of jurisdiction the registered office or the main place of business of the close corporation is situated, has jurisdiction for purposes of the Act. Close Corporations Act 69 of 1984 s 7 In other respects, the ordinary rules relating to jurisdiction apply. For instance, a high court has jurisdiction over a close corporation “residing or being in and in relation to all causes arising” within that court’s area of jurisdiction. Close Corporations Act 69 of 1984 s 19(1)(a) Derivative action: A derivative action on behalf of the corporation is permitted in the sense that any member may institute proceedings, on behalf of the corporation, against any other member or former member who is liable to the corporation: (a) to make an initial contribution or any additional contribution; or (b) on account of: (i) the breach of a duty arising from her or his fiduciary relationship to the corporation in terms of section 42; or negligence in terms of section 43,
(ii)
after notifying all other members of the corporation of her or his intention to do so. Close Corporations Act 69 of 1984 s 50 De Franca v Exhaust Pro CC (De Franca Intervening) [1996] 4 All SA 503 (SE); 1997 (3) SA 878 (SE) Personal liability: The Close Corporations Act provides for the personal liability of members and, in certain circumstances, for that of other persons. The relevant sections are dealt with hereafter. Section 23(2): In terms of this section, any member of, or any other person on behalf of, a close corporation who (a)
(b)
issues or authorises the issue of any notice or official publication of the corporation, or signs or authorises to be signed on behalf of the corporation any bill of exchange, promissory note, endorsement, cheque or order for money, goods or services; or issues or authorises the issue of any letter, delivery note, invoice, receipt or letter of credit of the corporation,
without the name, or registered literal translation thereof, and the registration number
(i) (ii)
of the corporation being mentioned therein, in accordance with the requirements of the section, that person is liable to the holder of the bill of exchange, promissory note, cheque, or the order for money, goods or services for the amount thereof, unless the amount is duly paid by the corporation. Durity Omega (Pty) Ltd v Gauteng Civils CC 2000 (1) SA 165 (T) G & C Construction v De Beer [2000] 1 All SA 540 (T); 2000 (2) SA 378 (T) Stafford t/a Natal Agriculture Co v Lions River Saw Mills (Pty) Ltd [1999] 1 All SA 275 (N); 1999 (2) SA 1077 (N) [Page 77] Section 42(3)(a): A member of a close corporation whose act or omission has breached any duty arising from her or his fiduciary relationship is liable to the corporation for: (a) (b)
any loss suffered by the corporation as a result of such act or omission; or any economic benefit derived by her or him by reason of such act or omission.
Section 42(3)(b): Where a member fails to give due notice of an interest in a contract of the corporation, and it becomes known to the corporation that the member has such an interest, the contract is, at the option of the corporation, voidable. Where the corporation chooses not to be bound, a court may, on application by any interested person, if such court is of the opinion that, in the circumstances, it is fair to order that such a contract shall nevertheless be binding on the parties, give an order to that effect and may make any further order which it may deem fit. Section 64: This provision is similar to section 424 of the Companies Act 61 of 1973 (see : COMPANIES) and creates liability for reckless or grossly negligent trading. TJ Jonck BK h/a Bothaville Vleismark v Du Plessis NO 1998 (1) SA 971 (O) Du Plessis NO v Oosthuizen 1999 (2) SA 191 (O) A member’s liability does not fall away upon deregistration of the close corporation. Mouton v Boland Bank Ltd [2001] 3 All SA 485 (SCA); 2001 (3) SA 877 (SCA) Commissioner for SARS v Mendes [2001] 2 All SA 316 (SE); 2001 (4) SA 934 (SE) Section 43: A member of a corporation is liable to the corporation for loss caused by her or his failure, in the carrying on of the business of the corporation, to act with the degree of care and skill that may reasonably be expected from a person of such member’s knowledge and experience. This liability is not incurred if the relevant conduct was preceded or followed by the written approval of all the corporation’s members, provided that they were or are cognisant of all the material facts. PRECEDENTS Claim – based on section 64 of Act 69 of 1984 with alternatives against member [From Johnson v Blaikie & Co (Pty) Ltd t/a FT Building Supplies [1998] 2 All SA 38 (N); 1998 (3) SA 251 (N).] 1. The plaintiff is A Blaikie & Co (Pty) Ltd t/a FT Building Supplies Manaba, a company duly registered and incorporated according to law and carrying on business at Main Road, Manaba, KwaZulu-Natal. 2. The defendant is CJ, an adult male whose full and/or further particulars are to the plaintiff unknown of [address]. At all relevant times the defendant was a member of Roofking Building Supplies CC (the “CC”).
3.
4. On 15 December 1992 the plaintiff obtained judgment against the CC in the Transvaal Provincial Division of the Supreme Court of South Africa for payment of an amount of R33 165,70 plus interest and costs as appears from annexure “A” hereto. On 17 March 1993 the CC was finally liquidated. [Page 78]
5.
6. During or about May 1992 the defendant ordered or caused to be ordered certain building materials from the plaintiff in the name of the CC. The materials were delivered to and used at the premises [address], the property of the defendant. 7. At the time of the said order the CC was unable to pay its debts. At least, it was unable to pay the plaintiff in respect of the said materials. 8. In particular an unpaid balance of R33 165,70 in respect of the said materials remained after the liquidation of the CC. The judgment mentioned in paragraph 4 of the plaintiff’s particulars of claim was given in respect of this unpaid balance. 9. The defendant was at all material times aware of the CC’s inability to pay its debts, alternatively, the defendant ought reasonably have been aware thereof. 10. In acting as aforesaid, the defendant also grossly abused the juristic personality of the CC to obtain building materials from the plaintiff without paying, alternatively, as a creditor of the CC, obtained an undue preference. 11. In the premises and by virtue of section 64 and/or section 65 of the Close Corporations Act 69 of 1984, the plaintiff is entitled to orders in terms whereof: 11.1 the CC is not to be regarded as such, but as a venture of the defendant personally; and/or 11.2 the defendant is declared to be personally liable for payment of the amount of R33 165,70 reflected in annexure “A” hereto. 12. Subsequent to such liquidation, an enquiry was held at Pretoria on 17 July 1995 into the affairs of the CC in terms of the Close Corporations Act 69 of 1984 as read with the Insolvency Act 24 of 1936. 13. As a result of certain admissions made by the defendant at such enquiry, the defendant is liable personally to repay to the plaintiff the said amount of R33 165,70 on the basis that the defendant has received a payment from the close corporation in contravention of the provisions of section 70 as read with section 51 of the Close Corporations Act 69 of 1984. Notwithstanding demand, defendant fails and/or refuses and/or neglects to effect payment of the said sum.
14.
WHEREFORE the plaintiff claims 1. Orders in terms whereof: 1.1 Roofking Building Supplies CC (in liquidation) is in respect of the obligations arising out of the order of Court (annexure “A” to the particulars of claim) not to be regarded as such, but as a venture of the defendant personally; and/or 1.2 the defendant is declared to be personally liable for payment of the amount of R33 165,70 reflected in annexure “A” to the particulars of claim. Judgment for payment of R33 165,70. Interest a tempore morae. Costs of suit. Further and/or alternative relief. Pleadings/Amlers Precedents of Pleadings/C/Co-debtors Co-debtors
2. 3. 4. 5.
A claim against co-debtors must state whether their liability is joint, or joint and several. The nature of the liability can depend on a question of law (for example, the liability of ex-partners) or a question of fact (for example, the terms of a contract). If the liability is joint, all the debtors have to be joined and each debtor is liable for her or his share only. Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O) at 158 [Page 79] If the liability is joint and several, the plaintiff may join all the debtors or choose a target. A plaintiff may also choose the target at a later stage – for example, when applying for judgment. If judgment is granted against one such debtor, it must be stated that such judgment is joint and several with any judgment that may thereafter be granted against any of the other debtors. Parekh v Shah Jehan Cinemas 1982 (3) SA 618 (D) at 623 Conversely, the general principle is that, if several creditors become jointly entitled to certain rights, there is a presumption that each creditor may sue the debtor for that creditor’s pro rata share. Chrysafis v Katsapas 1988 (4) SA 818 (A) If a claim is wrongly based on joint and several liability where the true liability is joint only, such claim is not excipiable, because it amounts to a plus petitio. Van Diggelen v De Bruin 1954 (1) SA 188 (SWA) at 195 (doubtful) PRECEDENTS Prayers WHEREFORE plaintiff claims against both defendants, jointly and severally, the one paying the other to be absolved, payment of [amount]. WHEREFORE plaintiff claims against the defendant payment of [amount], such judgment to be joint and several with any judgment which may hereafter be obtained against [the defendant’s ex-partner]. WHEREFORE the plaintiff claims against the defendants, jointly, delivery of [detail]. Pleadings/Amlers Precedents of Pleadings/C/Companies Companies Related subjects: AGENCY CLOSE CORPORATIONS Citation: See : CITATION Legal representation: Only an attorney and an advocate duly instructed by an attorney may represent a company in the high court. A director of that company cannot enter appearance on its behalf or appear on its behalf. Yates Investments (Pty) Ltd v Commissioner for Inland Revenue 1956 (1) SA 364 (A) (Contra: California Spice and Marinade (Pty) Ltd in re: Bankorp v California Spice and Marinade (Pty) Ltd; Fair O’Rama Property Investments CC; Tsaperas; and Tsaperas [1997] 4 All SA 317 (W)) A member of a company may on behalf of the company initiate proceedings against any past or present director or officer of that company, where the company has suffered loss or damages or has been deprived of a benefit as a result of a wrong, breach of trust or faith committed by such director or officer. The member must first apply to court for the appointment of a curator ad litem to act for the company and must show that the company is unwilling to initiate the proceedings itself. The appointed curator ad litem will then act for the company. Companies Act 61 of 1973 s 266 Joseph Forman Holdings (Pty) Ltd v Forim Holdings [1999] 3 All SA 204 (W) [Page 80] Mandate: It must be proved that the person purporting to bind the company had the authority to do so. Once proved, if the exercise of the authority depends on some internal act, a bona fide third party can assume that there has been compliance with such internal act. CJ Mathebula t/a Nxolwane Bottle Store v University of the North [1998] 3 All SA 477 (T) A party contracting with a company may obviously also rely on an ostensible authority. Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA) See : AGENCY Personal liability in terms of section 424(1): If it is shown, on application to a court, that the business of a company was or is being carried on recklessly or with the intent to defraud creditors of that company or any other person, or for any fraudulent purpose, that court may declare any person personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company. Pressma Services (Pty) Ltd v Schuttler 1990 (2) SA 411 (C) Ozinsky NO v Lloyd 1992 (3) SA 396 (C); 1995 (2) SA 915 (A) Philotex (Pty) Ltd v Snyman, Braitex (Pty) Ltd v Snyman 1998 (2) SA 138 (SCA)
In order to hold someone liable under section 424(1), the following has to be established: (1)
the business of the company was carried on (a) (b) (c)
(2)
recklessly; with the intent to defraud creditors (of the company or any other person); or for any fraudulent purpose; and
the person concerned must (a) (b)
have been a party to the carrying on of the business; and have had knowledge of the facts from which the conclusion is properly to be drawn that the business of the company was or is being carried on (i) recklessly; (ii) with the intent to defraud creditors (of the company or any other person); or (iii) for any fraudulent purpose. Cooper NO v South African Mutual Life Assurance Society [2001] 1 All SA 355 (A); 2001 (1) SA 967 (SCA)
The onus rests on the plaintiff-creditor to prove the existence and quantity of its claim. Retail Management Services (Edms) Bpk v Schwartz 1992 (2) SA 22 (W) The action may be brought by the liquidator of a company in liquidation. Fundstrust (Edms) Bpk (in likwidasie) v Marais [1996] 3 All SA 574 (C); 1997 (3) SA 470 (C) The application for the declaration may, and, if factual disputes are anticipated, should, be by way of action. Food & Nutritional Products (Pty) Ltd v Neumann 1986 (3) SA 464 (W) [Page 81] Piercing the corporate veil: Directors and officers of a company may incur personal liability and the so-called corporate veil may be pierced where fraudulent use is made of the fiction of legal personality. Lategan NO v Boyes 1980 (4) SA 191 (T) It is necessary to show that the defendant was a party to the fraud. Howard v Herrigel NO 1991 (2) SA 660 (A) at 674 Personal liability can be attributed to someone who misuses or abuses the principle of corporate personality. This is especially so if there is an element of fraud or other similar conduct in the establishment or use of the company or in the conduct of its affairs. Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A) at 802–804 (The pleadings in this case are quoted in the judgment of first instance: 1993 (2) SA 784 (C).) There must at least be some misuse or abuse of the distinction between the corporate entity and those who control the company, which results in an unfair advantage being afforded to the latter. Hülse-Reutter v Gödde [2002] 2 All SA 211 (A); 2001 (4) SA 1336 (SCA) Derivative action: It has not been settled whether a shareholder may, by virtue of a derivative action, sue on behalf of a company if a wrong was committed against that company by directors and shareholders who are in the majority and, so, control the company and if such wrong involves conduct which is either fraudulent or ultra vires. Francis George Hill Family Trust v SA Reserve Bank 1992 (3) SA 91 (A) Shareholders have no action on behalf of the company against third parties. Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C) Liability under section 50: If a director or officer of a company (or any person on its behalf) signs or authorises a bill of exchange, cheque and the like on behalf of a company and the name of the company is not mentioned on the document, as required by section 50, such a person is liable to the holder of the instrument unless the company duly makes payment against such instrument. Epstein v Bell 1997 (1) SA 483 (D) Pre-incorporation contracts: In order to rely on a pre-incorporation contract, it must be alleged and proved that:
(a) the contract was in writing; (b) the person making it professed to act as an agent or trustee for the proposed company; (c) one of the company’s objects at the time of its registration was the adoption or ratification of the contract; (d) the company in fact did ratify or adopt the contract after registration. Companies Act 61 of 1973 s 35 Unless the contract otherwise provides, the so-called agent incurs no personal liability on the contract, pending the incorporation or ratification of the contract. Nine Hundred Umgeni Road (Pty) Ltd v Bali 1986 (1) SA 1 (A) Visser v Van Tonder 1986 (2) SA 500 (T) [Page 82] If the person did not profess to act as agent or trustee but acted as principal, the contract will be a contract for the benefit of a third party (stipulatio alteri) and which can be adopted by the company even if the formalities of section 35 have not been complied with. McCullogh v Fernwood Estate Ltd 1920 AD 204 See : CONTRACTS FOR THE BENEFIT OF THIRD PARTIES Ultra vires : At common law, a company could not function beyond its objects as set out in the memorandum of association. Section 35 of the Act amended the position materially. Under this provision, once a contract has been entered into by a company, no reliance can be placed by the company or the party with whom it contracted on the fact that the contract was beyond the powers and objects of the company as set out in its memorandum. The contract, in other words, even if beyond the company’s capacity, remains as valid and enforceable by or against the company as if it had been an act within the company’s capacity. As between the members or as between the members and directors who entered into the contract on behalf of the company, reliance can still be placed on the fact that the contract was ultra vires the agreed objects of the company. Financial assistance to purchase shares – section 38: A company may not, directly or indirectly, in any manner provide financial assistance for the purpose of, or in connection with, a purchase or subscription made or to be made to any person of, or for any shares in. the company or, where the company is a subsidiary company, of its holding company. This provision is subject to certain exceptions. For instance, a company whose main business is the lending of money may lend moneys for such a purpose in the ordinary course of its business. Peters NO v Schoeman [2001] 1 All SA 155 (A); 2001 (1) SA 872 (SCA) A contract affected by the prohibition is void. Lipschitz NO v UDC Bank Ltd 1979 (1) SA 789 (A) PRECEDENTS Claim – for director’s fees 1. Defendant is [name], a company with limited liability, duly incorporated in terms of the company laws of the Republic of South Africa, with registered office at [location] and principal place of business within the jurisdiction of this court at [location]. 2. In terms of [article] of defendant’s articles of association, the remuneration payable to each director was fixed at the sum of [amount] per annum, payable at the end of each financial year. 3. On [date], plaintiff was appointed a director of defendant company and he served in that capacity from [date] to [date]. 4. The company’s financial year ended on [date], but, despite demand, defendant failed to pay to plaintiff the remuneration due to him for the above period, being the amount of [amount]. Claim – based on pre-incorporation contract 1. On [date] at [place], plaintiff entered into a written deed of sale with one [X], who acted as trustee for a company to be formed. [Page 83] 2.
In terms of the written deed, a copy of which is attached hereto and marked “A”, plaintiff sold to the company certain immovable property situate at [location] for the sum of [amount]. 3. Thereafter, the said [X] duly formed defendant company which was registered on [date]. 4. At the time of registration, one of defendant’s objects was the adoption or ratification of the deed of sale. 5. On [date], defendant ratified and adopted the deed of sale. 6. In terms of [clause] of Annexure “A”, defendant was obliged to pay to plaintiff the sum of [amount] on [date], but has failed to do so. Claim – against trustee for a company to be formed 1. On [date] at [place], plaintiff entered into a written deed of sale with defendant who was then acting in his capacity as trustee for a company to be formed. 2. In terms of the aforesaid deed, a copy of which is attached hereto and marked “A”, plaintiff sold to defendant certain immovable property situate at [address] for the sum of [amount]. 3. In terms of [clause] of Annexure “A”, defendant undertook to be personally liable in terms of Annexure “A” if a company were not formed within [state period] of the signing of Annexure “A”, or if the company, once formed, failed to ratify or adopt Annexure “A” within [state period] of its incorporation. 4. Despite the effluxion of [state period], defendant has failed to register a company, and, in the premises, defendant is personally liable for the obligations of the proposed company in terms of Annexure “A”. In terms of [clause] of Annexure “A”, an amount of [amount] was due and payable to plaintiff on [date]. Despite demand, defendant has failed or refused to pay such amount to plaintiff.
5. 6.
Claim – based on section 422(1) of Act 61 of 1973 1. Plaintiff was at all relevant times a creditor of [X] company in the amount of [Rx] on the following grounds: [set out cause of action against [X]]. The company was liquidated on [date] by this court. Plaintiff duly proved his claim against [X] for [amount] and the claim was duly admitted by the liquidator. In spite thereof, plaintiff received no liquidation dividend since [X] had no assets. Defendant was the managing director of [X] during all relevant times. During the period [state period], the business of [X] was carried on: (a) (b)
2. 3. 4. 5. 6.
with the intent to defraud creditors of [X]; or recklessly; since (i) funds of [X] were diverted from [X] to defendant for defendant’s personal purposes; (ii) no books of account were kept; (iii) funds of [X] were used for gambling purposes.
7. Defendant was knowingly a party to these acts. 8. As a result of the foregoing fraud or recklessness, plaintiff suffered damages [detail]. WHEREFORE plaintiff claims: An order declaring that defendant is liable to plaintiff in terms of section 424(1) of the Companies Act 61 of 1973 for the debts incurred by [X] to plaintiff in the sum of [amount]. [Cf Fourie v Braude 1996 (1) SA 610 (T).] [Page 84] Exception – derivative action 1. The plaintiff sues in its capacity as shareholder in [X] (Pty) Ltd. 2. The plaintiff’s damages allegedly arise from losses caused to the company, and, therefore, indirectly to the plaintiff, in the form of a loss of value in respect of its shareholding. 3. The plaintiff, as a shareholder in [X], being a company with limited liability and a separate legal personality, has no right of action against the curators with respect to the alleged losses. 4. Accordingly, the particulars of claim disclose no cause of action against the curators. [See : Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C).] Claim – based on section 50 of Act 61 of 1973 1. The plaintiff is the holder and drawee of a cheque drawn on behalf of [X] (Pty) Ltd in the sum of [Ry]. A copy of the cheque is annexed hereto. The defendant, a director of [X], signed the cheque on its behalf.
2.
3. The manner in which [X’s] name was rendered on the cheque does not comply with the provisions of section 50 of the Companies Act 61 of 1973, in the following respects: [detail]. 4. The company has failed to honour the cheque or to pay the amount due in terms of the cheque. 5. The defendant is accordingly liable to pay to plaintiff the said amount. Claim – based on section 424(1) of Act 61 of 1973 [From Kalinko v Nisbet [2002] 3 All SA 294 (W).] 1. The retailer agreement between C and M, being the primary source of the business and income of C, was cancelled by M during or about December 1999. The defendants failed to take sufficient steps to enter into a new retailer agreement with M. 2. A false claim of R12 883 140,00, alternatively R2 040 986,32, was reflected in the books of C in favour of M. 3. Valid and enforceable claims of C against M in an amount of approximately R1 million were abandoned without any benefit being received in respect thereof or without any due and proper authorisation being given in respect thereof. 4. C traded in insolvent circumstances during the period July 1999 to February 2000 whilst the defendants knew of such insolvency. C failed to appoint competent and able staff to manage and direct the day-to-day running of its affairs. No stocktaking of the stock of C took place between April 1999 and February 2000.
5. 6.
7. No accounts and audited statements were compiled or kept for the business of C for the period during or about July 1999 to February 2000.
8. C operated without sufficient stock on hand. 9. Without due and proper authorisation being given, C abandoned its business. Pleadings/Amlers Precedents of Pleadings/C/Compromise Compromise Related subjects: RES IUDICATA TENDER BY A DEFENDANT TENDER IN FULL AND FINAL SETTLEMENT Definition: A compromise or settlement (transactio) is a contract the purpose of which is to prevent or avoid or put an end to litigation. Whether embodied in an order of court or not, it has the effect of res iudicata. Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) Georgias v Standard Chartered Finance Zimbabwe Ltd 2000 (1) SA 126 (ZS) at 138–139 It is, therefore, an absolute defence to an action based on the original claim. [Page 85] Contract: A compromise is a substantive contract which exists independently of the cause that gave rise to the compromise. Being a contract, the general rules of pleading a contract apply. Compromise and novation: In the case of novation, the parties replace one valid contract with another valid one. Therefore, if the original contract is subsequently shown to be invalid, the novated contract will be of no effect. A contract of compromise, on the other hand, is not affected by the invalidity of the original obligation. Dennis Peters Investments (Pty) Ltd v Ollerenshaw 1977 (1) SA 197 (W) Weltmans Custom Office Furniture (Proprietary) Limited (in liquidation) v Whistlers CC [1997] 3 All SA 467 (C) Authority to compromise: A legal practitioner may have the ostensible authority to compromise a claim. Hlobo v Multilateral Motor Vehicle Accidents Fund [2001] 1 All SA 322 (A); 2001 (2) SA 59 (SCA) Breach of compromise: In the absence of a reservation of the right to proceed on the original cause of action, the compromise agreement bars any proceedings based on the original cause. Not only can the original contract not be relied on, but the parties are also not entitled to go behind the compromise and raise defences to the original cause of action when sued on the compromise. Van Zyl v Niemann 1964 (4) SA 661 (A) A term providing that, should the terms of compromise not be complied with by one of the parties, the other may rely on the original cause of action can be express or implied and can be in the form of either a resolutive or a suspensive condition. Crause v Ocean Bentonite Co (Edms) Bpk 1979 (1) SA 1076 (O) Defences: A compromise may be set aside on the ground that it was fraudulently obtained Rowe v Rowe [1997] 3 All SA 503 (A); 1997 (4) SA 160 (SCA) or on the ground of mistake, provided that the error vitiated true consent and did not merely relate to the motive of the parties or to the merits of the dispute, which was the purpose of the parties to compromise. Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) Wilson Bayly Holmes (Pty) Ltd v Maeyane 1995 (4) SA 340 (T) See : MISTAKES Other contractual defences, such as impossibility of performance or illegality of the compromise, are also available. Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) Standard Bank of SA Ltd v Essop [1997] 3 All SA 117 (D); 1997 (4) SA 569 (D) PRECEDENTS Claim – based on compromise 1. On [date] at [place], plaintiff and defendant entered into a written agreement in terms of which the dispute [detail] between the parties was settled. A copy of the agreement is annexed hereto. [Page 86] Defendant has failed to comply with the terms of the deed of settlement.
2.
3. In terms of the deed of settlement, plaintiff is entitled, in the event of defendant’s failure to comply with the terms, at his choice to proceed with the original cause of action or with the settlement agreement.
4. Plaintiff has elected to abide by the terms of the compromise. Plea – alleging a settlement 1. On [date] at [place], plaintiff and defendant settled the dispute which is the subject-matter of the present claim. A copy of the settlement agreement is annexed hereto. 2. Plaintiff did not reserve his rights to proceed on the original cause of action. Pleadings/Amlers Precedents of Pleadings/C/Condictio Indebiti Condictio Indebiti Related subjects: ADMINISTRATION OF DECEASED ESTATES BANKERS CONDICTIO SINE CAUSA ILLEGAL CONTRACTS General: A party who, owing to an excusable error, made a payment (or delivered a thing) to another in the mistaken belief that the payment or delivery was owing may claim repayment to the extent that the receiver was enriched at the claimant’s expense. Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C) at 396 The person entitled to bring the action is the one who, in law, is considered to have made the payment or the transfer. Bowman NO v Fidelity Bank Ltd [1997] 1 All SA 317 (A); 1997 (2) SA 35 (SCA) The condictio indebiti is also used to reclaim performance made in terms of an invalid contract where invalidity is due to a failure to comply with prescribed formalities. Enocon Construction (Pty) Ltd v Palm Sixteen (Pty) Ltd 1972 (4) SA 511 (T) Elements: The essential allegations are that: (a) the defendant must be enriched; (b) the plaintiff must be impoverished; (c) the defendant’s enrichment must be at the expense of the plaintiff; and (d) the enrichment must be unjustified or sine causa. McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (A); 2001 (3) SA 482 (SCA) These aspects are discussed in more detail: (a) The transfer or payment was made in the bona fide and reasonable, but mistaken, belief that it was owing. ABSA Bank Ltd v Leech [2001] 4 All SA 55 (A); 2001 (4) SA 132 (SCA) (b)
The transfer must have been made sine causa. It must have been indebite in the widest sense – that is, there must have been no legal or natural obligation to make it: for example, an ultra vires payment. Frame v Palmer 1950 (3) SA 340 (C) Bowman NO v Fidelity Bank Ltd [1997] 1 All SA 317 (A); 1997 (2) SA 35 (SCA) Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd [1996] 3 All SA 1 (A); 1996 (4) SA 19 (SCA)
[Page 87] (c)
The error must be a reasonable error. Rahim v Minister of Justice 1964 (4) SA 630 (A) at 634 This means that the mistake must be excusable in the circumstances of the case. Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) There are exceptions to this requirement, especially in relation to payments made on behalf of others. Bowman NO v Fidelity Bank Ltd [1997] 1 All SA 317 (A); 1997 (2) SA 35 (SCA)
(d)
The property being reclaimed, from a legal point, was transferred to the defendant. For example, if an agent receives the money or object on behalf of the principal, the action lies against the principal and not against the agent even though the latter may have been enriched by receiving it. Minister van Justisie v Jaffer 1995 (1) SA 273 (A) Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A) (e)
Where restitution is claimed on the ground that the transfer was made involuntarily, the plaintiff must allege that it was made as the result of an unlawful threat and that the payment was made under protest. Kruger v Sekretaris van Binnelandse Inkomste 1973 (1) SA 394 (A) Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A) In such a case, error does not have to be alleged or established. Commissioner for Inland Revenue v First National Industrial Bank Ltd 1990 (3) SA 641 (A)
(f) If the claim arises from performance in terms of an invalid contract, the plaintiff must tender to restore all benefits received under that contract and must allege that the defendant is unwilling or unable to perform its part of the invalid bargain. Carlis v McCusker 1904 TS 917 Botes v Toti Development Co (Pty) Ltd 1978 (1) SA 205 (T) This rule does not apply where the plaintiff’s claim is based on a rei vindicatio or if the contract is void for, say, vagueness. Patel v Adam 1977 (2) SA 653 (A) (g)
The property or money reclaimed must have been transferred or paid by the plaintiff or the plaintiff’s agent. Klein NO v SA Transport Services 1992 (3) SA 509 (W)
(h) The enrichment must have been at the expense of the plaintiff and not some third party. Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd [1996] 3 All SA 1 (A); 1996 (4) SA 19 (SCA) McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (A); 2001 (3) SA 482 (SCA) Onus: The burden of proof in respect of these elements is on the plaintiff. Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) at 224 Non-enrichment: A defendant may plead non-enrichment as a defence. However, once a transfer indebite has been established, the onus is on the defendant to prove that the transfer did not, in fact, enrich the defendant. African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A) ABSA Bank Ltd v Standard Bank of SA Ltd [1997] 4 All SA 673 (A); 1998 (1) SA 242 (SCA) [Page 88] A defendant who disposed of the thing may rely on the disposal as evidence of non-enrichment and, in addition, must allege and prove that the disposal was bona fide. Le Riche v Hamman 1946 AD 648 Van Zyl v Serfontein 1992 (2) SA 450 (C) A party who receives money or goods, knowing such money or goods to be indebite, cannot deal therewith as if he or she were owner thereof. The true owner of the money or goods is probably liable in damages for any loss or deterioration caused by her or his negligence. African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A) at 711–712 If both parties have performed fully in terms of an invalid agreement, the condictio indebiti will no longer be available because the enrichment was not unjust. Wilken v Kohler 1913 AD 135 at 144 In the case of an illegal contract, the par delictum rule may apply. See : ILLEGAL CONTRACTS PRECEDENTS Claim – based on a void contract 1. Plaintiff and defendant entered into a written contract of sale of land in terms of which plaintiff purchased from defendant a half share of his farm [name] for [amount]. The agreement was entered into at [place] on [date]. A copy is annexed hereto. 2. The contract is void by virtue of the provisions of the Subdivision of Agricultural Land Act 70 of 1970in that the minister has refused to grant his consent to the contract. 3.
In anticipation of the grant of the consent, plaintiff made payment to defendant of the following instalments in the bona fide and reasonable belief that the agreement was valid and that the minister would grant his consent: [detail]. Plaintiff is not in possession of the land sold, but defendant is in possession thereof. Defendant is unwilling or unable to perform in terms of the invalid contract.
4. 5.
WHEREFORE plaintiff claims repayment of [amount]. The Subdivision of Agricultural Land Act 70 of 1970 is to be repealed and replaced with the Subdivision of Agricultural Land Act Repeal Act 64 of 1998. Claim – based on payment wrongly made 1. On [date] at [place], plaintiff entered into a verbal contract with one [X]. In terms of that contract, plaintiff was indebted to [X] in the sum of [amount]. 2. In the bona fide and reasonable belief that defendant, who bears the same name as [X], is in fact [X], plaintiff on [date] by post sent the said sum to defendant. The amount was not owing to defendant. Defendant nevertheless appropriated the moneys.
3. 4.
WHEREFORE plaintiff claims repayment of [amount]. Pleadings/Amlers Precedents of Pleadings/C/Condictio ob Turpem vel Iniustam Causam Condictio ob Turpem vel Iniustam Causam See : ILLEGAL CONTRACTS [Page 89] Pleadings/Amlers Precedents of Pleadings/C/Condictio sine Causa Condictio sine Causa Related subject: CONDICTIO INDEBITI Relationship with condictio indebiti : The condictio sine causa can be brought where the condictio indebiti is inapplicable. It is not simply an alternative to the latter. An example of the application of the condictio sine causa is where an executor pays to A a legacy belonging to B. B is entitled to recover from A, irrespective of an excusable or other error by the executor. Requirements: In order to succeed with this type of claim, the plaintiff must allege and prove: (a) (b)
(c)
(d)
receipt by the defendant of money or goods to which the plaintiff is entitled; the absence of a valid causa for such receipt. In other words, the money or goods must not have come to the defendant by way of gift, payment discharging a debt, or in terms of a promise or other obligation or lawful ground justifying the enrichment; enrichment of the defendant by the receipt of the money or goods at the expense of the plaintiff. In assessing whether defendant has been enriched by the payment, account must be taken of any performance rendered by defendant which was juridically connected with the receipt of the money or goods; that the plaintiff was impoverished. Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C) B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (A); 2001 (3) SA 482 (SCA)
Non-enrichment: See : CONDICTIO INDEBITI PRECEDENTS
Claim – based on condictio sine causa Plaintiff is the holder of a savings account at [X] Bank. On [date] and at [place], the said bank in error paid the sum of [Ry] to the defendant from the said account. The said sum was neither due nor owing to the defendant. The defendant was enriched unjustly by [Ry] at the expense of the plaintiff.
1. 2. 3. 4.
Pleadings/Amlers Precedents of Pleadings/C/Conditions Conditions Related subject:
CONTRACT
Conditions and terms: A condition is an external fact on which the existence of an obligation or juristic act depends. A term of a contract, on the other hand, does not relate to the existence of the obligation but to its nature. Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) Design & Planning Service v Kruger 1974 (1) SA 689 (T) at 695 Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A) at 676 Premier, Free State v Firechem Free State (Pty) Ltd [2000] 3 All SA 247 (SCA); 2000 (4) SA 413 (SCA) [Page 90] Something does not become a condition merely by being given that name. Webb v Davis NO [1998] 2 All SA 584 (A); 1998 (2) SA 975 (SCA) The distinction has important practical implications relating to the onus of proof. The fulfilment of a condition must be alleged and proved by the party relying on the contract, whereas a breach of a term in a contract must be alleged and proved by the person who relies on a breach of that contract. Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) Kate’s Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd [1997] 4 All SA 185 (A); 1998 (1) SA 235 (SCA) See : CONTRACT As to proof of a condition precedent as an exception to the parol evidence rule, see Thiart v Kraukamp 1967 (3) SA 219 (T) Conditions precedent: The term “condition precedent” is used in different contexts to mean different things. It can refer to a truly suspensive condition or to a material term (that is, a term the breach of which entitles a party to cancel the contract). Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) The term is also used in the context of the exceptio non adimpleti contractus. Suspensive condition: Pending the fulfilment of a suspensive condition, there is no contract between the parties. Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A) First National Bank of SA Ltd v Lynn NO [1996] 1 All SA 229 (SCA); 1996 (2) SA 339 (A) This does not mean that any party may prevent the fulfilment of the condition. As indicated, the party wishing to rely on the contract has to allege and prove the fulfilment of the suspensive condition. Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) The fulfilment of a suspensive condition after the lapse of a reasonable time, or after the time limit imposed, does not give rise to a binding obligation. Dirk Fourie Trust v Gerber 1986 (1) SA 763 (A) Melamed v BP Southern Africa (Pty) Ltd [2000] 1 All SA 342 (W); 2000 (2) SA 614 (W) Resolutive condition: The fulfilment of a resolutive condition terminates an existing obligation. A party wishing to rely on such termination must allege and prove the fulfilment of the resolutive condition. Supposition or assumptions: A condition relating to a past or present fact does not defer an obligation. The obligation was either in existence or it never came into being. Fourie v CDMO Homes (Pty) Ltd 1982 (1) SA 21 (A) An incorrect unilateral assumption relating to a past or present fact amounts to a unilateral mistake which does not affect the contract. A common assumption, unless elevated to a term of the agreement, likewise does not affect the contract. Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA 264 (SCA) Onus: A claim based on a contract is to be put within the four corners of the agreement. A proper setting out of the cause of action requires an averment of the fulfilment of such conditions as the agreement might attach to the
obligation sought to be relied upon. These conditions must be of the nature of [Page 91] prerequisites for the coming into existence of an obligation or its enforceability, such as conditions precedent, suspensive conditions or terms, reciprocal obligations of which prior or simultaneous fulfilment is required, and the like. In other words, a litigant relying on a contract which is subject to a condition has to plead and prove the condition and its fulfilment. Kate’s Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd [1997] 4 All SA 185 (A); 1998 (1) SA 235 (SCA) A qualification which operates by way of a release or discharge must be alleged and proved by the defendant and not by the plaintiff. United Canners Ltd v Deepfreezing & Preserving (Pty) Ltd; Standard Canners & Packers Ltd v Deepfreezing & Preserving (Pty) Ltd 1960 (1) SA 852 (C) at 859 Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A); 1997 (2) SA 337 (SCA) Fictional fulfilment: Where a party to a contract prevents the fulfilment of a condition, upon the fulfilment of which that party would become bound, with the intention of frustrating such fulfilment, the unfulfilled condition will be deemed to have been fulfilled. Scott v Poupard 1971 (2) SA 373 (A) Venter Agentskappe (Edms) Bpk v De Sousa 1990 (3) SA 103 (A) The party alleging fictional fulfilment must allege and prove: (a) (b)
the non-fulfilment of the condition; and that the breach of duty by the defendant was committed with the intention of frustrating that condition’s fulfilment. Scott v Poupard 1971 (2) SA 373 (A)
As to the nature of the intention, Whyte v Da Costa Couto 1985 (4) SA 672 (A) at 680 the defendant may, in defence, rely on the absence of a causal link between the breach of duty and the non-fulfilment of the condition. The defendant bears the onus of alleging and proving the absence of such causal link. Thanolda Estates (Pty) Ltd v Bouleigh 145 (Pty) Ltd [2001] 1 All SA 141 (W); 2001 (3) SA 196 (W) The onus to establish that, in spite of the breach, the condition would still not have been fulfilled rests, arguably, on the defendant. Scott v Poupard 1971 (2) SA 373 (A) Waiver: A party, in whose exclusive favour a suspensive condition exists, may waive the condition’s fulfilment before the agreed cut-off date – in which case, the condition is deemed to be fulfilled. Once the agreement has lapsed, a unilateral waiver cannot reinstate it. Van Jaarsveld v Coetzee 1973 (3) SA 241 (A) Trans-Natal Steenkoolkorporasie Bpk v Lombaard 1988 (3) SA 625 (A) at 640 The ordinary rules relating to proof of a waiver apply. See : WAIVERS Demand as condition precedent: A demand is not a condition precedent to a right of action, unless there is a term to the contrary or a demand is necessary to create a right of cancellation. The absence of a demand may affect costs. Standard Finance Corp of SA Ltd (in liq) v Langeberg Koöperasie Bpk 1967 (4) SA 686 (A) [Page 92] PRECEDENTS Claim – alleging fulfilment of a suspensive condition 1. On [date] at [place], plaintiff and defendant entered into a written contract. A copy is annexed hereto. 2. In terms of the contract, plaintiff purchased from defendant [detail]. 3. The agreement was subject to the suspensive condition that the master of the high court would consent to the agreement on or before [date]. The master consented to the agreement on [date]. A copy of the master’s consent is annexed hereto. Despite the foregoing, defendant refuses to deliver [specify] to plaintiff.
4. 5.
Claim – alleging fictitious fulfilment 1.
to 3. [As before.] 4. It was a tacit term of the agreement that defendant would apply within a reasonable time to the master for his consent and that defendant would endeavour to obtain the master’s consent. 5. With the intention of frustrating fulfilment of the suspensive condition, defendant failed to make any application to the master. The suspensive condition is, therefore, deemed to be fulfilled on [date]. Despite demand, defendant refuses to comply with his obligations in terms of the agreement.
6. 7.
Plea – relating to a resolutive condition 1. and 2. [As before.] 3. The agreement was subject to the resolutive condition that, should the master not grant his consent within the period of [state period], the contract would lapse. The master did not give his consent within the agreed time. The agreement has, therefore, lapsed and is of no further force and effect.
4. 5.
Plea – based on a supposition 1. and 2. [As before.] 3. The agreement was subject to the condition that the property sold had rights to water [detail] from the [name] river in terms of . . . The property did not have the supposed water rights. Defendant therefore denies that the agreement created any valid obligations.
4. 5.
Pleadings/Amlers Precedents of Pleadings/C/Confidential Information Confidential Information Related subject:
RESTRAINT OF TRADE
Essentials: Confidential information can be protected by an interdict and a claim for damages. The essential allegations are: Cf Van Castricum v Theunissen 1993 (2) SA 726 (T) at 730 Waste Products Utilisation (Pty) Ltd Wilkes 2003 (2) SA 515 (W) at 570 (a)
The plaintiff must have a quasi-proprietary or legal interest in the confidential information. Gordon Lloyd Page & Associates v Rivera [2000] 4 All SA 241 (A); 2001 (1) SA 88 (SCA)
[Page 93] (b)
The information must have the necessary quality of confidentiality. Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) SA Historical Mint (Pty) Ltd v Sutcliffe 1983 (2) SA 84 (C) Cambridge Plan AG v Moore 1987 (4) SA 821 (D) Information is considered confidential for present purposes if it is: useful – that is, if it involves and is capable of application in trade or industry;
(i)
(ii) objectively determined, not public knowledge or public property but is known to a restricted number of persons;
(iii) objectively, of economic value to the plaintiff. Alum-Phos (Pty) Ltd v Spatz [1997] 1 All SA 616 (W) at 623 (c)
A relationship, usually contractual, between the parties which imposes a duty on the defendant to preserve the confidence of the information. The most common example of such a relationship is that between employer and employee. Multi Tube Systems (Pty) Ltd v Ponting 1984 (3) SA 182 (D) Aercrete SA (Pty) Ltd v Skema Engineering Co (Pty) Ltd 1984 (4) SA 814 (D) at 822 International Executive Communications Ltd t/a Institute for International Research v Turnley [1996] 3 All SA 648 (W); 1996 (3) SA 1043 (W) at 1052 Motion Transfer & Precision Roll Grinding CC v Carsten [1998] 4 All SA 168 (N) A plaintiff may also rely on the fact that the defendant is a trade rival and has obtained information in an improper manner. Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C)
(d) The defendant must have had knowledge of the confidentiality of the information and its value. Multi Tube Systems (Pty) Ltd v Ponting 1984 (3) SA 182 (D) Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 191 (e) Improper possession or use of the information, whether as a springboard or otherwise. Multi Tube Systems (Pty) Ltd v Ponting 1984 (3) SA 182 (D) Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) (f) Damages suffered, if any. PRECEDENTS Claim – for interdict 1. From about [date] at [place], plaintiff has been, and still is, manufacturing [item] according to a process that includes [specify procedure]. 2. Plaintiff’s process as a whole and, particularly, the specification relating to [specify] constitute trade secrets and/or confidential knowledge and know-how and/or confidential information. 3. First defendant was employed by plaintiff during the period [state period] as production manager. 4. During the period of his employment with plaintiff, first defendant learnt of the aforesaid process and specification. First defendant terminated his employment with plaintiff on [date].
5.
[Page 94] 6. (a)
Prior to that date, first defendant had been instrumental in forming a company, [name] [second defendant];
(b) defendant became the managing director of second defendant on [date]. 7. Since [date], second defendant has been manufacturing and continues to manufacture [item] according to a process and specification which are the same or substantially the same as plaintiff’s process and specification. 8. Both defendants have used and are still using plaintiff’s knowledge which they have wrongfully misappropriated from plaintiff. 9. Despite demands that they desist therefrom, defendants continue to infringe the rights of plaintiff to its process and specification. WHEREFORE plaintiff claims:
(a) An order interdicting defendants from using the following process and specification, namely [detail] for the purposes of manufacturing [item]. (b)
An order interdicting defendants from selling or disposing, in the course of trade or otherwise, all [items] still in their possession made by means of the said process.
Pleadings/Amlers Precedents of Pleadings/C/Contract Contract Parties: It must appear ex facie the particulars of claim that the plaintiff and the defendant are the parties to the contract. Representation: It is necessary to state whether a contract was concluded by the parties thereto or by agents acting on their behalf. The identities of such agents must be also be stated. Uniform rule 18(6) See : AGENCY Place: It must be stated where the contract was concluded. Uniform rule 18(6) Date: It is necessary to state when the contract was concluded. Uniform rule 18(6) Express contracts: If reliance is placed on a contract expressly concluded, it is not necessary to state that the contract is an express contract since, in the absence of any other allegation, it will be assumed that it is such a contract. Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A) Uniform rule 18(6) requires that it be stated whether the contract is written or oral. If the contract is a written one, a true copy thereof or of that part of the contract upon which reliance is placed must be annexed to the particulars of claim. Vorster v Herselman 1982 (4) SA 857 (O) When a plaintiff bases the cause of action on a document and annexes part of that document, the defendant is entitled to assume that the plaintiff will rely on the annexed portion only. Stern NO v Standard Trading Co Ltd 1955 (3) SA 423 (A) at 429 Tacit contracts: If a party intends to rely on a tacit contract, it is necessary to plead that fact. If an express contract is alleged, the pleader may not lead evidence to prove a tacit contract. Roos v Engineering Fabricators (Edms) Bpk 1974 (3) SA 545 (A) Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A); 1998 (3) SA 938 (SCA) [Page 95] One can plead a tacit contract as an alternative to an express contract. In order to establish a tacit contract, it is necessary to allege and prove unequivocal conduct that establishes on a balance of probabilities that the parties intended to, and did in fact, contract on the terms alleged. It must be proved that there was agreement. Standard Bank of SA Ltd v Ocean Commodities Inc 1983 (1) SA 276 (A) at 292 Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) Mühlmann v Mühlmann 1984 (3) SA 102 (A) at 123–124 Bezuidenhout v Otto 1996 (3) SA 339 (W) at 342–343 Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C); 2001 (1) SA 313 (C) The party alleging a tacit contract must catalogue and prove the unequivocal conduct and circumstances from which the tacit contract is to be deduced, and must also allege the terms of the contract. Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A) Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) at 267 First National Bank of Southern Africa Ltd v Richards Bay Taxi Centre (Pty) Ltd [1999] 2 All SA 533 (N) In order to prevent absolution, the plaintiff must produce evidence of conduct of the parties that justifies a reasonable inference that the parties intended to, and did, contract on the terms alleged – in other words, that there was, in fact, consensus ad idem amongst the parties. Gordon Lloyd Page & Associates v Rivera [2000] 4 All SA 241 (A); 2001 (1) SA 88 (SCA) Agreement and contract: An agreement is not necessarily a contract. If there is any doubt, the party relying on the agreement must prove that an agreement was intended to be a contract – that is, that the intention was to give rise to legal relations. Government of the Self-Governing Territory of KwaZulu v Mahlangu 1994 (1) SA 626 (T) at 635 Dilokong Chrome Mines (Edms) Bpk v Direkteur-Generaal, Departement van Handel & Nywerheid 1992 (4) SA 1 (A)
Terms – onus: A party alleging a contract must allege and prove those terms (express or tacit) of the agreement he or she seeks to be enforce. McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) Badenhorst v Van Rensburg 1985 (2) SA 321 (T) at 335 Proof of the terms of the contract includes proof of the anterior question of whether both parties had the requisite animus contrahendi. Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd [2002] 3 All SA 369 (A); 2002 (4) SA 681 (SCA) at par 33 In the case of a written contract, the plaintiff must prove that the defendant agreed to its final form, and, if the plaintiff relies on the defendant’s signature, the plaintiff may prove that the defendant signed the document in its completed form. Da Silva v Janowski 1982 (3) SA 205 (A) The onus of proving the terms of the agreement may involve the proof of a negative – for example, proving that the parties did not agree on an additional term alleged by the defendant. Kriegler v Minitzer 1949 (4) SA 821 (A) Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A) [Page 96] The rule is the same where the defendant alleges that a naturalia of the type of contract concluded was varied by agreement when the contract was entered into. Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) Robin v Guarantee Life Assurance Co Ltd 1984 (4) SA 558 (A) at 567 Tacit terms: A party intending to rely on a tacit term in a contract may, additionally, have disprove the allegation that an express agreement was reached on this aspect. Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A) Nel v Nelspruit Motors (Edms) Bpk 1961 (1) SA 582 (A) Hamilton-Browning v Denis Barker Trust [2001] 1 All SA 618 (N); 2001 (4) SA 1131 (N) A party seeking to place on a document on which reliance is placed a construction which differs from the clear prima facie meaning of that document has to plead the circumstances relied on for this construction. Société Commerciale de Moteurs v Ackermann 1981 (3) SA 422 (A) It is not, however, necessary to plead reliance on surrounding circumstances where the meaning of the document is uncertain or ambiguous or where the other party contends that it bears a meaning other than its prima facie meaning. The court must be satisfied that there is uncertainty or ambiguity as to the proper construction of the contract. Dorman Long Swan Hunter (Pty) Ltd v Karibib Visserye Ltd 1984 (2) SA 462 (C) at 476 The aforementioned authorities did not refer to Uniform rule 18(7), which states that it is not necessary to state the circumstances from which an implied term can be inferred. The rule relates presumably not to “implied” but to “tacit” terms. But see: Bezuidenhout v Otto 1996 (3) SA 339 (W) at 343 As for the distinction between implied and tacit terms, see: Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) Delfs v Kuehne & Nagel (Pty) Ltd 1990 (1) SA 822 (A) An implied term usually arises by operation of law, whilst a tacit term is an unexpressed provision of the contract which provision derives from the common intention of the parties, as inferred from the express terms of the contract and from the surrounding circumstances. The test for tacit terms is dealt with in Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1977 (4) SA 310 (T) at 327 At the exception stage, the test is whether the term could reasonably be implied. Lanificio Varam SA v Masurel Fils (Pty) Ltd 1952 (4) SA 655 (A) at 660 Pete’s Warehousing and Sales CC v Bowsink Investments CC [2000] 2 All SA 266 (E); 2000 (3) SA 833 (E) A tacit term may not be read into a unilateral document (such as an offer) unless surrounding circumstances are pleaded and proved. Multilateral Motor Vehicle Accidents Fund v Thabede 1994 (2) SA 610 (N) Implied terms: If a party intends to rely on a term implied by law in a contract, the implied term must be pleaded since the relief sought will depend on it. However, it is not necessary to allege facts giving rise to the term, because it is a legal question of whether the term is to be implied. See, in general: Sishen Hotel (Edms) Bpk v SA Yster & Staal Industriële Korp Bpk 1987 (2) SA 932 (A) at 948–949 [Page 97] Parol evidence: Terms which, in terms of the parol evidence rule, cannot be proved, may not be pleaded unless a rectification of the contract is sought. Offer and acceptance: As a general rule, it is not necessary to plead the offer and its acceptance. It may be necessary, if the offer and acceptance are contained in different documents. It may also be necessary where the offer or the acceptance may be a matter of dispute.
CGEE Alsthom Equipments et Enterprises Electriques v GKN Sankey (Pty) Ltd 1987 (1) SA 81 (A) at 90 If reliance is placed on the tacit acceptance of an offer, it is necessary to allege such tacit acceptance and to allege and prove the basic facts on which the party relies in order to substantiate such acceptance. Clegg v Groenewald 1970 (3) SA 90 (C) Formalities: If the type of contract requires compliance with statutory formalities, it must appear ex facie the pleadings that those formalities have been complied with. Where the parties are shown to have been ad idem as to the material terms of a contract, the onus of proving that the parties agreed that the effectiveness of the agreement would depend on the execution of a written document rests on the party alleging this condition. Woods v Walters 1921 AD 303 Lambons (Edms) Bpk v BMW (Suid-Afrika) (Edms) Bpk [1997] 3 All SA 327 (SCA); 1997 (4) SA 141 (A) Vagueness: Vagueness usually involves questions of interpretation and, as such, does not concern questions of evidence or onus. For the approach to vagueness of contracts, see Namibian Minerals Corporation v Benguela Concessions Ltd [1997] 1 All SA 191 (A); 1997 (2) SA 548 (A) De Beer v Keyser [2002] 1 All SA 368 (A); 2002 (1) SA 827 (SCA) Conditions: See : CONDITIONS, EXCEPTIO NON ADIMPLETI CONTRACTUS, TENDER Breach: If reliance is placed on a breach of a contract, that breach must be alleged and proved. WD Russell (Pty) Ltd v Witwatersrand Gold Mining Co Ltd 1981 (2) SA 216 (W) at 218 See : CONTRACT: BREACH OF Damages: See : CONTRACT: DAMAGES, CONVENTIONAL PENALTIES PRECEDENTS Claim – based on an oral contract At [place] on [date], plaintiff and defendant entered into an oral contract. Plaintiff acted personally and defendant was duly represented by his salesman [name]. In terms of the contract:
1. 2. 3.
(a) defendant sold to plaintiff a motor vehicle [description]; (b) the price was [amount]; (c) delivery had to take place on [date]. It was an express, alternatively implied, term that the vehicle would be free from latent defects.
4.
[Page 98] Plea – to the claim It was an express term of the contract that the motor vehicle is sold “voetstoots”. Claim – based on a tacit term Plaintiff is a garage owner. On [date] at [place], plaintiff and defendant entered into an oral contract. The parties acted personally.
1. 2. 3.
4. In terms of the contract, plaintiff undertook to repair the exhaust system of defendant’s motor vehicle [description]. 5. It was a tacit term of the agreement that defendant would remunerate plaintiff for the work done at plaintiff’s usual and customary rate.
6. Plaintiff did repair the exhaust system in terms of the agreement. 7. Plaintiff’s usual and customary rate is [amount]. Plea – to the foregoing Defendant pleads that it was an express term of the agreement that plaintiff would repair the exhaust system free of charge [or] for a sum not exceeding [amount]. Claim – alleging a tacit contract 1. On [date], plaintiff and defendant became the co-owners of the farm [name] as a result of the bequest of the late [name]. Shortly thereafter plaintiff and defendant occupied the farm and began to utilise it jointly. The parties shared the farming expenses and income equally during [state period].
2. 3.
4. As a result of the foregoing, a tacit partnership agreement came into existence on or about [date] between plaintiff and defendant with the following material terms: (a) the parties were to be partners in the farming venture on [name of farm]; (b) each partner would contribute equally to the farming expenses; (c) each party would be entitled to an equal share of the profits; (d) the partnership could be terminated by reasonable notice. Claim – alleging a written contract On [date] at [place], plaintiff and defendant entered into a written contract. A copy of the contract is annexed hereto. Plaintiff was represented by [name] and defendant was represented by [name]. The terms of the contract that are material to this action are [set out].
1. 2. 3. 4.
Claim – based on contract by correspondence 1. On [date] at [place], plaintiff addressed to defendant an offer to purchase from defendant [item] for [amount]. A copy of the offer is annexed hereto and marked “A”. 2. On [date] at [place], defendant accepted the offer in writing by sending by post to plaintiff the letter annexed hereto and marked “B”. 3. As a consequence, a written contract was entered into between the parties on [date] at [place] having the following material terms: [detail]. Pleadings/Amlers Precedents of Pleadings/C/Contract: Breach of Contract: Breach of Related subjects:
CONTRACT: CANCELLATION OF CONTRACT: DAMAGES CONVENTIONAL PENALTIES MORA REPUDIATION SPECIFIC PERFORMANCE
[Page 99] Pleadings/Amlers Precedents of Pleadings/C/Contract: Cancellation of Contract: Cancellation of Related subjects:
CONTRACT CONTRACT: DAMAGES CONVENTIONAL PENALTIES MORA REPUDIATION
A party wishing to rely on the cancellation of a contract must allege and prove: (a) a breach of the contract; (b) that the right to cancellation has accrued because, for example, the breach was material; or Singh v McCarthy Retail Ltd t/a McIntosh Motors [2000] 4 All SA 487 (A); 2000 (4) SA 795 (SCA that the contract has a cancellation clause (lex commissoria) and its provisions (such as prior notice) have been complied with strictly; Van Zyl v Rossouw 1976 (1) SA 773 (NC) De Wet NO v Uys NO 1998 (4) SA 694 (T) at 706 Kragga Kamma Estates CC v Flanagan 1995 (2) SA 367 (A) (c) that clear and unequivocal notice of rescission was conveyed to the other party (unless the contract dispenses with such notice). Swart v Vosloo 1965 (1) SA 100 (A) Miller & Miller v Dickinson 1971 (3) SA 581 (A) Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A); 2001 (2) SA 284 (SCA) at par 29 The innocent party is entitled either to cancel the contract and claim for a declaratory order that the contract had been cancelled properly, or to claim for a judicial cancellation. Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A) The mere fact that a defendant gives reasons for the denial that the cancellation was unlawful does not detract from the plaintiff’s onus to prove the “unlawful” cancellation relied on. Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (A) at 712 The cancelling party has no obligation to tender restitution and it is for the guilty party to claim it if he or she is entitled thereto. See : TENDER BY A PLAINTIFF Cancellation for a wrong reason does not invalidate the cancellation, provided that the innocent party can allege and prove a valid ground, even if that ground was not known to that party at the time of cancellation. Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C) Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) at 832 While the right to cancel must be exercised within a reasonable time, mere delay does not result in the loss of that right. Mahabeer v Sharma NO 1985 (3) SA 729 (A) Once a party has elected to cancel or not to cancel, the election is final and may not be reversed. The onus rests on the party alleging an election to allege and prove it. Mahabeer v Sharma NO 1985 (3) SA 729 (A) Thomas v Henry 1985 (3) SA 889 (A) Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd [1996] 1 All SA 509 (C); 1996 (2) SA 537 (C) See : ELECTION [Page 100] Whether an innocent party has made an election to cancel is a question of fact to be decided on the evidence. Peters NO v Schoeman [2001] 1 All SA 155 (A); 2001 (1) SA 872 (SCA) at par 12 An innocent party who is uncertain of her or his rights in respect of the other party’s breach may claim in the alternative, provided that the alternatives are not inconsistent. These alternatives are the following: (a) (b)
Cancellation; alternatively, if the contract was not properly cancelled, damages.
Cancellation with damages and/or restitution; alternatively, if the contract was not properly cancelled, damages. (c) Specific performance with or without damages. (d) Specific performance with or without damages, and, failing compliance with the order within a prescribed period, cancellation with or without damages. Myers v Abramson 1951 (3) SA 438 (C) Custom Credit Corporation (Pty) (Ltd) v Shembe 1972 (3) SA 462 (A) It is not possible to claim performance and, in the alternative, to rely on a prior cancellation of the contract, because these alternatives are inconsistent. Salzwedel v Raath 1956 (2) SA 160 (E) Restitution in the form of repayment of the purchase price previously paid by the claimant is not a claim for damages but a distinct contractual remedy. If a creditor relies, in an action, on a forfeiture clause, it cannot again in a later action claim damages. National Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v International Liquor Distributors (Pty) Ltd [2001] 1 All SA 417 (A); 2001 (2) SA 232 (SCA) PRECEDENTS Claim – for restitution, alternatively, damages 1. On [date] at [place], the parties entered into an oral agreement in terms of which plaintiff sold to defendant a [description] motor vehicle [registration number] for a purchase price of [amount]. 2. It was a term of the agreement that the purchase price was to be paid on [date] and, should defendant fail to do so, plaintiff would be entitled to cancel the contract without any prior demand. Defendant failed to pay the purchase price on due date and has not paid it since. In consequence, defendant is in breach of the agreement and plaintiff is entitled to cancel the agreement.
3. 4.
5. On [date] at [place], plaintiff informed defendant that he terminated the agreement and demanded return of the motor vehicle. Defendant refuses to comply with the demand. 6. The value of the motor vehicle is [amount]. WHEREFORE plaintiff claims: An order for the return to plaintiff of motor vehicle [description]; alternatively, for an order for the payment of [amount]. [Page 101] Claim – for declaratory order 1. On [date], the parties entered into a written agreement of sale in terms of which plaintiff sold to defendant a dwelling house situated at [address]. A copy of the agreement is attached hereto and marked “A”. 2. In terms of [clause], plaintiff was entitled to cancel the agreement in the event of defendant’s committing any breach of contract. Defendant breached the agreement in the following respects: [detail].
3.
4. Plaintiff gave defendant due notice as required by [clause] but, despite the fact that [days] have elapsed since the giving of notice, defendant has failed to rectify his breach. 5. In the premises, plaintiff was entitled to cancel the agreement, which he did by notice to defendant dated [date]; alternatively, plaintiff hereby cancels the agreement. WHEREFORE plaintiff claims an order declaring the agreement, Annexure “A”, to have been validly cancelled. Pleadings/Amlers Precedents of Pleadings/C/Contract: Damages
Contract: Damages Related subjects:
CONTRACT: CANCELLATION CONVENTIONAL PENALTIES
Onus: A party wishing to claim damages resulting from a breach of contract must allege and prove: (a) (b)
the contract; breach of the contract (for example, that the other party was in mora); or Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1977 (4) SA 310 (T) at 348 repudiation of the contract; Novick v Benjamin 1972 (2) SA 842 (A)
(c) that the claimant has suffered damages; Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228 (A) Thompson v Scholtz [1998] 4 All SA 526 (A); 1999 (1) SA 232 (SCA) (d) a causal link between the breach and damages; Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687 Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards Inc [1998] 4 All SA 281 (SCA); 1998 (4) SA 1182 (SCA) (e)
that the loss was not too remote. In this regard, there are two principles. First, the damages must flow naturally and generally from the kind of breach of contract in question in the sense that, because the law presumes that such damages fell within the contemplation of the parties as a probable result of the breach, they are not regarded as being too remote. These are called general or intrinsic damages. Second, if the damages do not fall within the first category, they will not be regarded as being too remote if, in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that such damages would probably result from the breach. These are called special or extrinsic damages. Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (A); 2001 (4) SA 551 (SCA)
[Page 102] Cancellation: It is not a requirement that the contract be cancelled in order that a claim for reliance loss be sustained. Mainline Carriers (Pty) Ltd v Jaad Investments CC [1997] 3 All SA 451 (C); 1998 (2) SA 468 (C) Damages: In respect of damages, the following rules apply: (a) Damages are usually, but not always, assessed as at the date of breach. Rens v Coltman 1996 (1) SA 452 (A) Mostert NO v Old Mutual Life Assurance Co (SA) Ltd [2001] 4 All SA 250 (A); 2001 (4) SA 159 (SCA) at par 76 (b)
The sufferer should be placed in the position in which he or she would have been had the contract been performed properly, so far as this can be done by the payment of money and without undue hardship to the defaulting party. Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687 Van Immerzeel & Pohl v Samancor Ltd [2001] 2 All SA 235 (A); 2001 (2) SA 90 (SCA) Thus, in the case of a breach by a seller, the purchaser’s damages are usually the difference between the contract price and the market value at the time and place fixed for delivery. Novick v Benjamin 1972 (2) SA 842 (A)
(c) This rule does not necessarily apply if restitutionary or restitutional damages are claimed – for example, when the contract has been cancelled. In such event, a negative inter esse may be claimed – that is, the plaintiff may claim to be placed in the position in which he or she would have been had no contract been concluded. Probert v Baker 1983 (3) SA 229 (D) Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC [1997] 3 All SA 451 (C); 1998 (2) SA 468 (C)
Masters v Thalia Thain t/a Inhaca Safaris [1999] 4 All SA 618 (W); 2000 (1) SA 467 (W) (d)
Where there are several ways in which a defendant might have performed her or his contractual obligation, damages for a breach are to be assessed on the assumption that the defendant would have performed it in the way least profitable to the plaintiff and most beneficial to the defendant. Bellairs v Hodnett 1978 (1) SA 1109 (A) at 1140
(e) Where a party seeks to employ a special method of calculating damages, the onus rests on that party to satisfy the court that such method is the appropriate one in the circumstances of the case. Katzenellenbogen Ltd v Mullin 1977 (4) SA 855 (A) (f) If the contact provides for a method for the determination of damages, such a method – depending on the terms of the contract and the Conventional Penalties Act 15 of 1962 – must or may be used. Mufamadi v Dorbyl Finance (Pty) Ltd 1996 (1) SA 799 (A) Iniuria : As far as damages for an injurious breach of contract are concerned, See : INIURIA Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours [1998] 3 All SA 57 (W); 1998 (4) SA 802 (W) [Page 103] Contractual defences: If the defendant, who is prima facie liable for damages resulting from the breach of the contract, wishes to rely on a contractual provision exonerating her or him from liability, he or she is, in effect, confessing and avoiding and is saddled with the onus of establishing the defence by bringing her- or himself within the terms of the provision concerned. Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd [1998] 4 All SA 117 (SCA); 1998 (4) SA 844 (SCA) Counterclaim: A defendant who wishes to claim damages resulting from a breach of contract must raise such claim in a counterclaim and not as a defence in the plea. Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228 (A) Mitigation of damages: The onus rests on the defendant to allege and prove that the plaintiff neglected to do what a reasonable person would have done in order to mitigate damages. Soar h/a Rebuilds for Africa v JC Motors 1992 (4) SA 127 (A) at 135 Tender: If the claim for damages is unaccompanied by a restitution claim because of the cancellation of the contract, a tender by the claimant is not necessary. Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd 1951 (1) SA 312 (C) Baker v Probert 1985 (3) SA 429 (A) See : TENDER BY PLAINTIFF PRECEDENTS Claim – for special damages On [date] at [place], plaintiff and defendant entered into a verbal contract. The material terms of the contract were: (a) (b) (c) (d)
(b) (c)
2.
defendant would repair plaintiff’s tractor; the repairs were to be done before [date]; the repairs were to be done in a workmanlike and efficient manner; plaintiff would pay defendant [Rx].
In terms of the agreement: (a)
1.
plaintiff handed the tractor to defendant for repairs on [date]; defendant returned the tractor to plaintiff on [date]; plaintiff paid defendant the sum of [Rx] on [date].
3.
4. Defendant breached the contract by failing to repair the tractor in a workmanlike and efficient manner in that [detail]. 5. As a result of defendant’s breach, plaintiff could not plough his fields in time for the planting season and consequently plaintiff had no summer crop. 6. When the agreement was concluded, plaintiff and defendant were aware of the following facts, and the agreement was entered into on the basis of these facts: (a) (b) (c)
plaintiff possessed the one tractor only; plaintiff required the tractor for ploughing his fields before [date]; should the tractor not be repaired properly, plaintiff would be unable to plough timeously, would consequently have no summer crop and would therefore suffer a loss of income from his farming venture.
[Page 104] 7. Plaintiff’s loss of income as a result of the failure of his summer crop was [amount] calculated as follows: (a) estimated value of crop [detail]; (b) less production costs [detail]. [Based on North & Son (Pty) Ltd v Albertyn 1962 (2) SA 212 (A).] Claim – for natural damages 1. and 2. [As before]. 3. In terms of the agreement, plaintiff handed the tractor to defendant to effect the repairs on [date]. 4. Defendant failed to effect the repairs in time or at all and returned the tractor to plaintiff on [date] in its original state. Plaintiff had the tractor repaired by [name] and the reasonable cost of repairs was [Ry]. Plaintiff therefore suffered damages in the sum of [Rx–Ry].
5. 6.
Claim – for damages coupled with cancellation 1. to 6. [As before]. 7. Defendant’s return of the tractor to plaintiff was a repudiation of the agreement. 8. Plaintiff elected to accept the repudiation and informed defendant of his election to terminate the contract on [date] at [place] by [method of notification]. Claim – for damages on the basis of negative interest [From Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC [1997] 3 All SA 451 (C) par [8]; 1998 (2) SA 468 (C).] 1. Plaintiff sues as the cessionary of the damages claimed against the defendants which previously vested in L. 2. On 21 April 1994 and in Cape Town a written agreement was concluded by L and defendants in terms whereof first defendant sold to L all the issued shares in plaintiff and in I Eiendomme (Pty) Ltd (“Eiendomme”). 3. In terms of the agreement, the price payable by L for the shares was R8 568 494, which was duly paid by L on or about 3 May 1994 to and on behalf of first defendant.
4. Pursuant to the fulfilment of the conditions set out in the agreement, L made certain restraint payments totalling R550 000 to or for the benefit of managers employed by plaintiff. 5. A profit forecast of the M Group was annexed to the agreement. The agreement incorporated a warranty by first defendant that the profit forecast had been prepared in good faith by second defendant, taking into account all relevant factors of which he was aware and stating that the said profit forecast contained no material inaccuracies or omissions. 6. First defendant breached the said warranty, because the said profit forecast was not prepared by the defendants in good faith and/or omitted relevant factors of which the defendants were aware and/or contained material inaccuracies and omissions. 7. If first defendant had not breached the said warranty, L would not have concluded the agreement. 8. In consequence of concluding the agreement, L made the payments referred to in paragraph 3.3 and 3.4 above and also incurred legal and professional costs amounting to R167 340. 9. The shares sold to L in Eiendomme are worthless and the business which was owned and operated by plaintiff at the time of the conclusion of the agreement has at all times since the conclusion of the agreement operated at a substantial loss and would have collapsed and gone into liquidation in consequence of such losses but for the financial support received by plaintiff from L since the conclusion of the agreement. [Page 105] 10. The reason why L had provided the financial support to plaintiff was because it would have been extremely damaging to L’s reputation and goodwill if it were to have permitted plaintiff, as its wholly-owned subsidiary, to have collapsed and to have gone into liquidation. 11. An amount of at least R6,2 million of such financial support has become permanently irrecoverable from the business owned and operated by plaintiff at the time of the conclusion of the agreement. 12. In the premises, L has suffered damages amounting to R15 485 835 (being the total of the amounts referred to in paragraphs 8 and 11 above) in consequence of first defendant’s breach of warranty. Pleadings/Amlers Precedents of Pleadings/C/Contracts for the Benefit of Third Parties (Stipulatio Alteri) Contracts for the Benefit of Third Parties (Stipulatio Alteri) A stipulatio alteri is a contract between two parties (say, A and B) that is designed to enable a third party (say, C) to come into a contractual relationship with B (the promissor). The contract between A and B obliges B to make an offer to C. By accepting that offer, B is bound to C and A drops out of the arrangement. Crookes NO v Watson 1956 (1) SA 277 (A) at 291 If C wishes to rely on such a contract, C must allege and prove: (a) the contract between A and B; Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO [2001] 1 All SA 627 (W); 2001 (2) SA 182 (W) (b)
that the contract displayed a common intention that C, by accepting the benefit of the contract, would become a party thereto and be entitled to claim from B. Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) at 172 Total SA (Pty) Ltd v Bekker NO 1992 (1) SA 617 (A) at 625 Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W) The fact that C may gain an advantage from a contract between A and B does not suffice. The parties may, for their own convenience, agree that B must render performance to C without their having the intention to create a right of action on behalf of C against B; Barnett v Abe Swersky & Associates 1986 (4) SA 407 (C) Protea Holdings Ltd v Herzberg 1982 (4) SA 773 (C) at 779
(c) acceptance by C of the benefit. Such acceptance must be communicated to B and must comply with the ordinary rules relating to the acceptance of an offer. Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A)
Defences: B may rely on any contractual defence available but, more particularly, on the fact that the contract between A and B had been cancelled before acceptance by C, Ex parte Orchison 1952 (3) SA 66 (T) or that the benefit was not accepted within a reasonable, or within the allotted, time. After C’s acceptance, the other parties cannot undo C’s benefit. Adenia Eiendomme (Edms) Bpk v LPD Ondernemings BK [1997] 3 All SA 85 (T) [Page 106] PRECEDENTS Claim – by beneficiary 1. On [date] at [place], defendant and one [B] agreed in writing that, in the event of defendant’s purchasing from [B] the immovable property known as [address], defendant would pay to plaintiff the sum of [amount]. A copy of the agreement is annexed hereto. 2. At the time of the agreement, it was the intention of the parties thereto to benefit plaintiff and that, on acceptance of such benefit by plaintiff, defendant would be bound thereby. 3. On [date], plaintiff notified defendant in writing that he accepted the benefit. A copy of the notification is annexed hereto. 4. On [date], defendant purchased from [B] the said immovable property but defendant refuses to pay plaintiff the sum of [amount]. WHEREFORE plaintiff claims: (a) (b)
Payment of [amount]. Interest [amount].
Claim – by stipulator 1. On [date] at [place], plaintiff and defendant entered into a written agreement in terms whereof defendant undertook to transfer to [C] on [date] the immovable property known as [address]. The parties acted personally. A copy of the agreement is annexed hereto. 2. It was a term of the agreement that [C] could, on [date] and not before, accept or reject the said benefit. 3. On [date] and prior to [C]’s exercising his right of election, defendant, in breach of his agreement, sold the property to [name]. The property has not yet been transferred to [name].
4.
WHEREFORE plaintiff claims an interdict restraining defendant from passing transfer of the said property to [name], and costs. [Note that the purchaser must be joined.] Pleadings/Amlers Precedents of Pleadings/C/Contributory Negligence Contributory Negligence Related subjects: JOINT WRONGDOERS LEX AQUILIA MOTOR VEHICLE ACCIDENTS THIRD PARTY PROCEDURE VOLENTI NON FIT INIURIA General: A defendant faced with a delictual claim may, in the plea, request an apportionment of damages based on the contributory negligence of the plaintiff. Apportionment of Damages Act 34 of 1956 s 1 Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (A); 2001 (4) SA 551 (SCA)
This defence must be pleaded and the appropriate relief of apportionment must be claimed in the plea. However, if the issue was fully canvassed, the court may order apportionment in the absence of proper pleadings. AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A) Gibson v Berkowitz [1997] 1 All SA 99 (W); 1996 (4) SA 1029 (W) [Page 107] It is advisable to plead contributory negligence as an alternative to a denial of negligence. The defence of contributory negligence is also a useful alternative to a defence of volenti non fit iniuria. Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) The Act only allows apportionment in cases where the claimant was at fault. It does not, for instance, include the negligence of the claimant’s spouse, to whom he or she is married in community of property. Labuschagne v Cloete 1987 (3) SA 638 (T) Post-delictual negligence of a plaintiff may interrupt causation. Gibson v Berkowitz [1997] 1 All SA 99 (W); 1996 (4) SA 1029 (W) Dolus : This defence is not available if the plaintiff’s claim is based on a delict intentionally committed, such as an assault or theft. Mabaso v Felix 1981 (3) SA 865 (A) Minister van Wet en Orde v Ntsane 1993 (1) SA 560 (A); 1993 (1) SACR 256 (A) Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd [2000] 4 All SA 393 (A); 2000 (4) SA 915 (SCA) However, if there is dolus on both sides, the defence may be available. Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank 1997 (2) SA 591 (W) at 606E Onus: It is for the defendant to allege and prove that the plaintiff was negligent and that this negligence was causally connected to the damages suffered by the plaintiff. South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A) Union National South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A) Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw & Collins Afslaers (Edms) Bpk [1997] 1 All SA 473 (A); 1997 (1) SA 592 (A) Third parties: A defendant may also join an alleged joint wrongdoer and claim a contribution from her or him. The defendant must allege and prove that the third party is liable with the defendant, in delict, to the plaintiff. Wapnick v Durban City Garage 1984 (2) SA 414 (D) This joinder may be done conditionally on a finding that the defendant is, in fact, liable to the plaintiff. Gross v Commercial Union Assurance Co Ltd 1974 (1) SA 630 (A) PRECEDENTS Plea Defendant denies that he was negligent as alleged or in any other way. In the alternative and in the event of the court’s finding that he was negligent, defendant pleads that plaintiff was also negligent in one or more of the following respects, namely: [detail] and that this negligence also contributed to the collision. Plea Defendant admits that the collision was caused by the negligence of its insured driver but pleads that: (a) the vehicle in which plaintiff travelled was fitted with seat belts; (b) plaintiff failed to wear the seat belts; [Page 108] (c) (d) (e)
the facial injuries sustained by plaintiff in the collision were caused by her head striking the windscreen; had she worn her seat belt she would not have struck the windscreen; she was negligent in not wearing her seat belt and her negligence caused or contributed to her damages.
Prayer
WHEREFORE defendant prays: That plaintiff’s claim be dismissed with costs; alternatively, that the amount of damages to be awarded to plaintiff be reduced in terms of section 1 of Act 34 of 1956 to such extent as may seem just and equitable, having regard to plaintiff’s degree of negligence. Pleadings/Amlers Precedents of Pleadings/C/Conventional Penalties Conventional Penalties Related subjects: CONTRACT: DAMAGES CREDIT AGREEMENTS Penalty clauses: An agreed penalty or pre-estimate of damages for the breach of a contract is enforceable in any competent court. Conventional Penalties Act 15 of 1962 s 1 It follows that the party wishing to enforce such a term need only allege and prove the term and a breach falling within the scope of the term. A defendant may, in defence to the claim, plead for a reduction of the penalty. Conventional Penalties Act 15 of 1962 s 3 Matthews v Pretorius 1984 (3) SA 547 (W) Forfeiture clauses: A stipulation whereby it is provided that, upon withdrawal from an agreement by a party thereto under circumstances specified in that agreement, any other party to that agreement may forfeit the right to claim restitution of anything performed in terms of the agreement, or will remain liable for some performance, has the same effect as a penalty clause. This means that the innocent party can enforce it but that the guilty party may claim restitution or may resist a claim for additional performance. Conventional Penalties Act 15 of 1962 s 4 The forfeiture referred to in section 4 is of a limited nature: it does not include the forfeiture of a right to payment. In other words, if the guilty party is to forfeit a contractual payment or performance by the innocent party, the guilty party is not entitled to claim that amount (or any lesser amount), irrespective of the prejudice suffered by the innocent party. Classen v Ann Fenwick Eiendomme Bpk 1996 (2) SA 99 (O) Reduction of penalty: Relief by way of a reduction is, in a sense, discretionary. The question is, thus, not what damages were actually suffered but what prejudice the creditor suffered. In determining the extent of the prejudice, the court has to take into consideration not only the creditor’s proprietary interest, but also every other rightful interest that may have been affected by the act or omission in question. Conventional Penalties Act 15 of 1962 s 3 A penalty stipulation does not relieve any party of the duty to mitigate damages he or she might have suffered. Courtis Rutherford & Sons CC v Sasfin (Pty) Ltd [1999] 3 All SA 639 (C) [Page 109] A reduction can be granted only if the term amounts to a penalty, in the sense that the parties intended it to operate “in terrorem”, or if it was, in fact, an agreed liquidation of damages. Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 438 Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 29 Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A) Further, a reduction is possible if the payment or forfeiture is a consequence of a breach of the contract only. Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A) Onus: A party claiming a reduction has to allege and prove that the penalty is disproportionate to the prejudice suffered by the creditor. This involves proving the actual prejudice. Chrysafis v Katsapas 1988 (4) SA 818 (A) National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v International Liquor Distributors (Pty) Ltd [2001] 1 All SA 417 (A); 2001 (2) SA 232 (SCA) This onus can be discharged with reference to the allegations contained in the pleadings of the party attempting to enforce the clause, in view of the fact that a court can raise the issue mero motu (probably in unopposed matters only). Smit v Bester 1977 (4) SA 937 (A) at 942 Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A) It is, however, inadvisable to rely on the possibility that the court may raise the matter mero motu. Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A) at 474–475 Accumulation of remedies: The Act prevents a creditor from recovering, in respect of an act or omission which is the subject of a penalty stipulation, both the agreed penalty and the damages or, except where the relevant contract expressly (ie, clearly) so provides, damages in lieu of the agreed penalty. Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) at 795
Credit agreements: The provisions of this Act may not be invoked in so far as they are in conflict with a provision of the Credit Agreements Act 75 of 1980. Conventional Penalties Act 15 of 1962 s 5 See : CREDIT AGREEMENTS PRECEDENTS Claim – for liquidated damages 1. [Set out the contract]. 2. In terms of the contract, plaintiff was entitled, on failure by defendant to pay the monthly rental within seven days of due date, forthwith to cancel the lease, to claim arrear rental and the sum of [amount] as liquidated damages. 3. Defendant has failed to pay the said rental for [period] on due date. 4. In consequence, plaintiff on [date] cancelled the contract by written notice. A copy thereof is annexed hereto. WHEREFORE plaintiff claims: (a) (b)
Payment of [amount] being arrear rentals; Payment of [amount] being liquidated damages.
[Page 110] Plea – to claim enforcing a penalty 1. Defendant pleads that the provisions of [clause] of the deed of lease to pay the sum of [amount] as liquidated damages on default by defendant constitutes a penalty stipulation in terms of section 3 of the Conventional Penalties Act 15 of 1962. 2. Defendant pleads that the said penalty stipulation represents rental for a period of one year and pleads that it is out of proportion to the prejudice suffered by plaintiff as a result of defendant’s default, in that plaintiff did re-let the premises immediately to a suitable tenant at the same rental for a period exceeding the remaining period of the lease. [Detail]. 3. Defendant further pleads that plaintiff did not suffer any other damages as a result of defendant’s default. WHEREFORE defendant prays that plaintiff’s claim be dismissed with costs; alternatively, that the sum claimed be reduced to an extent deemed just and equitable by this court. Claim – for repayment [Set out the contract terms]. The purchase price was to be paid by plaintiff as follows: [detail].
1. 2.
3. Pursuant to the contract, plaintiff duly paid defendant the deposit but failed to pay the balance of the purchase price on due date. 4. Defendant cancelled the sale on [date] by [manner]. 5. The contract provides that, should the purchaser fail to comply with any of the terms of the agreement, the seller would be entitled to cancel the agreement forthwith and retain as a genuine pre-estimate of damages the monies paid by the purchaser. 6. The said provision in the contract is a penalty stipulation in terms of sections 3 and 4 of Act 15 of 1962. 7. Defendant did retain the deposit.
8. Plaintiff alleges that, subsequent to the cancellation of the sale, defendant sold the land to [name] for the sum of [amount] thereby mitigating in full any damages he may have suffered as a result of the cancellation of the deed of sale and that, therefore, the penalty is out of proportion to the prejudice suffered by defendant by reason of plaintiff’s failure to pay the balance of the purchase price. 9. In the premises, the amount of the penalty is subject to reduction by this court to the extent that the court may consider equitable. WHEREFORE plaintiff claims: Payment of the sum of [amount] or such lesser amount as this court considers equitable. Pleadings/Amlers Precedents of Pleadings/C/Copyright Infringement Copyright Infringement Related subjects: DESIGNS UNLAWFUL COMPETITION Statute: Copyright is governed by the Copyright Act 98 of 1978. The Act is also applicable to works made before its commencement. Copyright Act 98 of 1978 s 43 Appleton v Harnischfeger Corporation 1995 (2) SA 247 (A) Jurisdiction: Provided that the plaintiff has copyright as recognised by the Act, the court’s jurisdiction in respect of copyright infringement is determined according to the principles applicable to delictual claims. [Page 111] The copyright tribunal has limited jurisdiction and deals only with disputes between licensing bodies, or other persons from whom licences are required, and persons requiring licences. The plaintiff: An action for infringement is actionable at the suit of: (a)
(b)
the owner of the copyright (who is not necessarily the author); or Copyright Act 98 of 1978 s 24(1) Biotech Laboratories (Pty) Ltd v Beecham Group PLC [2002] 3 All SA 652 (A); 2002 (4) SA 249 (SCA) the exclusive licensee or sub-licensee (after due notice to the owner). Copyright Act 98 of 1978 s 25
The defendant: An action for infringement lies against any person who performs any of the acts described in section 23 of the Copyright Act. Copyright: The plaintiff must allege and prove copyright in the work concerned. This involves proving that: (a)
(b)
(c)
(d)
(e)
the work is an “original” work; Copyright Act 98 of 1978 s 2(1) Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A) Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd [1998] 1 All SA 123 (SCA); 1998 (2) SA 968 (SCA) the work is of a type defined in the Act – for example, a literary, musical, or artistic work; Copyright Act 98 of 1978 s 2(1) read with the definitions in s 1(1) Golden China TV Game Centre v Nintendo Co Ltd [1996] 4 All SA 667 (SCA); 1997 (1) SA 405 (A) except in the case of a broadcast or a programme-carrying signal, the work has been written down, recorded or otherwise reduced to material form; Copyright Act 98 of 1978 s 2(2) copyright has been conferred on the work either by virtue of the nationality, domicile or residence of the author or by reference to the country of origin; Copyright Act 98 of 1978 s 3 and s 4 read with s 37 the term of copyright has not expired. Copyright Act 98 of 1978 s 3(2)
Infringement of copyright: The plaintiff must allege and prove infringement of copyright. Such infringment entails the “copying” of the plaintiff’s work. In order to prove such copying, the plaintiff must show: (a) (b)
a sufficient degree of objective similarity between the original work and the alleged infringement; and a causal connection between the plaintiff’s and the defendant’s work – in other words, the defendant’s work must have been derived from the plaintiff’s work. Galago Publishers (Pty) Ltd v Erasmus 1989 (1) SA 276 (A) Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd [1998] 1 All SA 123 (SCA); 1998 (2) SA 968 (SCA)
The exclusive right to perform certain acts in respect of the particular work vests in the owner of the copyright. Copyright Act 98 of 1978 ss 5 to 11B [Page 112] Direct infringement: Direct infringement consists of an act: (a) (b) (c) (d)
done or caused to be done, in the Republic, without the licence of the copyright owner, which the copyright owner has the exclusive right to do or to authorise. Copyright Act 98 of 1978 s 23(1)
Dolus or culpa are not elements of direct infringement. Indirect infringement: An essential element of indirect infringement is dolus. Dolus in this context consists of the importation, sale or distribution of unauthorised copies of the work, provided that the defendant knew that the making of the article concerned: (a) constituted an infringement of copyright; or (b) would have constituted such an infringement had the article been made in the Republic. Copyright Act 98 of 1978 s 23(2) Presumptions: Section 26 affects the onus by creating presumptions that assist a plaintiff in establishing her or his case. If copyright in a cinematograph film is registered in terms of the Registration of Copyright in Cinematograph Films Act 62 of 1977, a certificate of the registrar provides prima facie proof of copyright. The relief: The owner of copyright is entitled to the following relief in the event of a breach of copyright: (a) Damages, which could include exemplary or punitive damages. Copyright Act 98 of 1978 s 24(3) Metro Goldwyn-Mayer Incorporated v Ackerman [1996] 1 All SA 584 (SE) (b) An interdict. (c) Delivery of, for example, infringing copies or plates used or intended to be used for infringing copies. (d) In lieu of damages, the plaintiff may, at her or his option, be awarded an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned. The plaintiff does not have to have suffered damages in order to be entitled to this relief. Copyright Act 98 of 1978 s 24(1A) Morris v Benson and Hedges 2000 (3) SA 1092 (W) For the purposes of determining the amount of damages or a reasonable royalty, the court may direct an enquiry to be held and may prescribe such procedures for the conducting of the enquiry as it considers necessary. Copyright Act 98 of 1978 s 24(1B) An exclusive licensee and an exclusive sub-licensee are entitled to the same remedies as if the licence were an assignment. These rights and remedies are concurrent with the rights and remedies of the owner of the copyright.
Copyright Act 98 of 1978 s 25 Defences: A defendant who establishes that he or she was unaware of the subsistence of the copyright claimed and had no reasonable grounds for suspecting it will not be mulcted in damages. Copyright Act 98 of 1978 s 24(2) [Page 113] The Act creates a number of exceptions to a claim for copyright infringement – for example, copying that was reasonably necessary for the purposes of research or private study, or use of a work for the purposes of judicial proceedings. These exceptions must, on general principles, be alleged and proved by the defendant. Copyright Act 98 of 1978 ss 12 to 19B Cf Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd [2002] 4 All SA 67 (SCA); 2003 (1) SA 31 (SCA) PRECEDENTS Claim – copyright infringement (literary work) First defendant is a publisher of, inter alia, books.
1.
2. At all times relevant hereto, second defendant was the managing director of first defendant and was in effective charge and control of first defendant. 3. At all times relevant hereto, valid copyright subsisted in the text of an original literary work entitled [name] (herein referred to as “the original work”). 4. The author of the original work was one [name], a South African citizen or resident, at all material times, and consequently a qualified person as defined in the Copyright Act 98 of 1978, at the time that the aforesaid original work was made. The aforesaid original work was first published in the Republic of South Africa on [date].
5.
6. At all times relevant hereto, plaintiff was the proprietor of the aforesaid copyright in the original work, pursuant to a written assignment from the said author, and still remains the proprietor. 7. During or about [date], second defendant caused first defendant to publish a publication entitled [name] (hereinafter referred to as “the offending work”) and first defendant did so publish the offending work. 8. The offending work is a reproduction of the original work (or a substantial part thereof); alternatively, it is an adaptation thereof. 9. Furthermore, second defendant has caused first defendant to sell or, by way of trade, offer or expose for sale or distribute in the Republic copies of the offending work to such an extent that plaintiff is prejudicially affected. The aforesaid conduct by defendants is not authorised by plaintiff. In the premises, the conduct of defendants constitutes infringement of the copyright in the original work.
10. 11.
12. Defendants, at all times relevant hereto, bore knowledge of the fact that such conduct constituted infringement as aforesaid. [Note: Knowledge is not a prerequisite in the case of cinematograph films or in the case of direct copying.] 13. The aforesaid unlawful conduct of defendants has caused plaintiff damage in the sum of [amount]. 14. Plaintiff apprehends upon reasonable grounds that defendants will not desist from their said unlawful conduct unless restrained by an order of the above court. [Quantify damages]. WHEREFORE plaintiff claims:
15.
(a) An order restraining defendants from infringing plaintiff’s rights in the copyright in the original work by publishing or printing or reproducing or adapting the original work, or by selling, distributing or offering for sale copies of the offending work. (b) Delivery up to plaintiff of all copies of the offending work in defendants’ possession or under their control, and of all plates used in the production of the offending work. (c)
Payment of [amount] being damages.
[Page 114] Pleadings/Amlers Precedents of Pleadings/C/Counterclaims (Claims in Reconvention) Counterclaims (Claims in Reconvention) Court rules: Magistrates’ Courts Rule 20, Uniform Rule 18 Purpose: Where reciprocal claims between parties exist, the proper course is to adjudicate on them all simultaneously and to arrive at a decision as to who is, on balance, the really successful party and, consequently, the true creditor. Du Toit v De Beer 1955 (1) SA 469 (T) The advantages for a defendant of proceeding by way of counterclaim instead of by way of an independent action are, first, that the decision on the plaintiff’s claim is kept in abeyance for decision with the counterclaim and, second, that the plaintiff in convention is bound to recognise the jurisdiction of the court in respect of the counterclaim. LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A) at 764 The second point must be qualified for magistrates’ courts: Where the court finds that the claim in reconvention exceeds its jurisdiction, the defendant may apply for a stay of the action. If no application for stay is made or if such application is dismissed, the court may dismiss the counterclaim to the extent that it exceeds the court’s jurisdiction. Magistrates’ Courts rule 20(5) and (6) Esterhuizen v Holmes 1947 (2) SA 789 (T) Form: A counterclaim is, in form, the same as a declaration save that it is not necessary to repeat the names or descriptions of the parties to the proceedings in convention. Uniform rule 24(1) Magistrates’ Courts rule 20(2) It is customary to state, in the claim in reconvention, that the plaintiff in reconvention is the defendant in convention and that the defendant in reconvention is the plaintiff in convention, and that the parties are referred to as before. It is also customary to incorporate, by way of reference, allegations contained in the pleadings of the plaintiff in convention as well as allegations made in the plea. Ribeiro v Santam Ltd [1996] 2 All SA 47 (W); 1996 (3) SA 1035 (W) The action in convention and the action in reconvention are two separate and distinct actions, in spite of the fact that they are usually heard simultaneously. The plaintiff in reconvention has all the rights of a plaintiff and may, for instance, apply for judgment by default on the counterclaim. Acs v Acs 1981 (2) SA 795 (W) Matyeka v Kaaber 1960 (4) SA 900 (T) Time: A defendant who counterclaims must deliver the claim in reconvention together with the plea. Uniform rule 24(1) Magistrates’ Courts rule 20(2) Uniform rule 24(1) allows for delivery of a counterclaim at a later stage, with the plaintiff’s or the court’s permission. The same principle applies to magistrates’ courts. Sekhoto v Qwa Qwa Auto Industries CC Panel Beaters & Spray Painters 1998 (1) SA 164 (O) [Page 115] If the proper formulation of the counterclaim depends on future and possibly uncertain contingencies, the use of a counterclaim may be inappropriate. Metje & Ziegler Ltd v Stauch, Vorster & Partners 1972 (4) SA 679 (SWA) Cf Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228 (A) Need for a counterclaim: If a defendant wishes to set off an unliquidated claim against the plaintiff’s claim, the defendant is obliged to proceed by way of counterclaim because only a liquidated claim can be pleaded by way of a set-off. Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228 (A) Muller v Botswana Development Corporation Ltd [2002] 3 All SA 663 (SCA); 2003 (1) SA 651 (SCA)
In such an event, the defendant must, in the plea, refer to the fact of the counterclaim and must request that judgment in respect of the claim, or any portion thereof, which would be extinguished by the counterclaim, be postponed until judgment on the counterclaim. Judgment on the claim, either in whole or in part, must thereupon be so postponed, unless the court, upon application, orders otherwise. Uniform rule 22(4) Types of counterclaim: (a) The relief claimed in the counterclaim may be unrelated to the relief claimed in the claim in convention. It may not lead to the liquidation of an unliquidated amount and an eventual set-off. The court may, in the exercise of its discretion, in this case grant judgment on the claim in convention (if it is admitted), especially if the claim in convention will be frustrated by a counterclaim which has no bearing on the main claim – for instance, where the plaintiff claims for ejectment and the defendant counterclaims for the value of improvements to the leased property. Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk 1984 (3) SA 760 (N); 1986 (1) SA 448 (A) Cf D-Jay Corpn CC v Investor Management Services (Pty) Ltd [1996] 4 All SA 650 (W); 2000 (2) SA 755 (W) (b) The counterclaim may serve to make liquid an illiquid claim which can be set off against the claim in convention. Uniform rule 22(4) Magistrates’ Courts rule 20(3) The court has, nevertheless, the discretion to grant judgment on the claim in convention, especially where the defendant is dilatory in proceeding with the counterclaim. Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd [2002] 1 All SA 517 (C); 2002 (2) SA 580 (C) It may be different in the magistrates’ courts where rule 20(7) provides that, where both the claim in convention and the claim in reconvention proceed to trial, each action may be tried separately but judgment must be given on both pari passu. (c) The counterclaim may be for an amount smaller than that in the claim. Du Toit v De Beer 1955 (1) SA 469 (T) Uniform rule 22(4) [Page 116] In such an event, the court will normally grant judgment for the plaintiff on the admitted part of her or his claim and the action will then proceed on the disputed part. Uniform rule 22(4) Baking Investments (Pty) Ltd v Britz 1978 (3) SA 1067 (T) (d)
The counterclaim may be conditional on the failure of the claim in convention. Uniform rule 24(4)
(e) The counterclaim may be conditional on the failure of the defence of the defendant in convention. Uniform rule 24(4) SA Onderlinge Brand v Van den Berg 1976 (1) SA 602 (A) (f) A counterclaim to a counterclaim, but not in magistrates’ courts. Levy v Levy 1991 (3) SA 614 (A) Magistrates’ Courts rule 20(8) Mala fide cession: If a claim is ceded with the intention of depriving the debtor of her or his right to raise a counterclaim by way of reconvention, the defendant may, in her or his plea to the claim by the cessionary, pray that judgment on the cessionary’s claim be postponed until final judgment is given in the defendant’s action against the cedent on the intended counterclaim. LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A) Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C); 1998 (4) SA 606 (C) See : CESSION PRECEDENTS Claim – in reconvention (standard form) Plaintiff in reconvention is defendant in convention. Defendant in reconvention is plaintiff in convention.
1. 2.
3. The parties are referred to herein as before. 4. [Set out cause of action of counterclaim.] WHEREFORE defendant claims: (a) (b)
Payment of [amount]. Costs.
Plea – relying on counterclaim as a defence 1. Defendant admits that he is indebted to plaintiff on the grounds and for the amount claimed. 2. Defendant pleads that he is excused from payment of this amount because plaintiff is indebted to him in the sum of [amount], being a claim for damages which forms the subject-matter of the claim in reconvention filed herewith. WHEREFORE defendant prays that judgment in respect of plaintiff’s claim be postponed until judgment on the claim in reconvention; or 1. Defendant denies [the relevant allegations]. 2. Defendant pleads that, in any event, plaintiff is indebted to him in the sum of [amount] in respect of damages occasioned by plaintiff, which damages form the subject-matter of the claim in reconvention filed herewith. [Page 117] WHEREFORE defendant prays that: (a) (b)
Plaintiff’s claim be dismissed with costs. Alternatively, that judgment in respect of plaintiff’s claim be postponed until judgment on the claim in reconvention; or 1. Defendant admits his indebtedness to plaintiff in the sum of [amount] on the grounds stated in plaintiff’s declaration. 2. Defendant pleads that he is excused from payment of [part of the amount] by virtue of plaintiff’s indebtedness to defendant in the sum of [amount], being damages occasioned by plaintiff and which form the subject-matter of the counterclaim filed herewith. Defendant hereby tenders to pay to plaintiff the balance of [amount].
3.
WHEREFORE defendant prays that judgment in respect of [amount], being a portion of plaintiff’s claim, be postponed until judgment on the claim in reconvention. Plea – conditional counterclaim In the event of its being established that: plaintiffs were, at all material times, married in community of property; and first plaintiff and the said [G] were joint wrongdoers in regard to the damages suffered by second plaintiff;
1. 2.
defendant prays for an order that, in the event of defendant’s paying to second plaintiff the damages awarded to her, first plaintiff be ordered to make a contribution to defendant in respect of such damages of such amount as this honourable court may deem just and equitable. Pleadings/Amlers Precedents of Pleadings/C/Credit Agreements Credit Agreements [Text prepared by Adv André Gautschi SC, Johannesburg.]
Related subjects: CONTRACT INTEREST LOANS Scope of the Credit Agreements Act: Sales and leases of movables are governed either by the Credit Agreements Act 75 of 1980 (“CAA”) or by the common law. The CAA applies to: (a) both sales and leases; Credit Agreements Act 75 of 1980 s 1 sv “credit agreement” (b)
such credit agreements only as are determined by the relevant minister by notice in the Gazette. Credit Agreements Act 75 of 1980 s 2(1)
The CAA does not apply to credit agreements in terms of which: (a)
goods are purchased or hired for the sole purpose of: selling or leasing them; or
(i)
(ii) using them in connection with mining, engineering, construction, road building or a manufacturing process. The party seeking to rely on the proviso to section 2(1) bears the onus of proving the purpose for which the agreement was concluded. It is the purpose of the purchaser that is relevant and it is not necessary that the seller should have knowledge of the purchaser’s intention; Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) at 909F–G Parker v Dorbyl Finance (Pty) Ltd 1997 (1) SA 862 (SCA) at 867A–C (b)
the State is the credit grantor. Credit Agreements Act 75 of 1980 s 2(1) proviso
[Page 118] The CAA applies to corporeal movables only. A business as a going concern is not a corporeal movable. Smit and Venter v Fourie 1946 WLD 9 Accordingly, section 84(1) of the Insolvency Act 24 of 1936, which creates a hypothec over property delivered in terms of an instalment sale transaction as defined in section 1 of the CAA, is not applicable to the sale of a business. A-Team Drankwinkel BK v Botha en ’n Ander NNO 1994 (1) SA 1 (A) at 17A–B The categories of movables, the sale or lease of which is governed by the CAA, are listed in government notices. Formalities: Certain formalities are necessary in order to ensure a valid credit agreement governed by the CAA: (a) the agreement must be in writing and signed; Credit Agreements Act 75 of 1980 s 5(1)(a) (b)
certain further information must be included in, or excluded from, the agreement. Credit Agreements Act 75 of 1980 ss 5 and 6
Types of credit agreements: A credit agreement usually takes one of two forms: (a)
(b)
The supplier sells to the financial institution which, in turn, leases or sells to the credit receiver. Here, the relevant credit agreement is concluded directly between the financial institution (the credit grantor) and the credit receiver. The supplier sells or leases to the credit receiver by way of a credit agreement and the supplier thereafter cedes its rights in the agreement to a financial institution. Here, the financial institution as cessionary becomes the credit grantor.
This distinction between these types of agreement is of importance where the credit receiver wishes to enforce her or his rights. A credit receiver suing the supplier or cedent for restitution should join the cessionary as a party to the proceedings. Erasmus v Fourwill Motors (Edms) Bpk 1975 (4) SA 57 (T) Jurisdiction: The magistrates’ courts have special jurisdiction in respect of action on or arising out of any credit agreement.
Magistrates’ Courts Act 32 of 1944 s 29(1)(e) The magistrates’ courts do not have jurisdiction on the basis that the cause of action arose wholly within their districts, unless the credit receiver concerned, at the relevant time, no longer resides in the Republic. Credit Agreements Act 75 of 1980 s 21 This is a right which the credit receiver cannot waive. Standard Credit Corporation Ltd v Bester 1987 (1) SA 812 (W) at 814D–F Essentials: The cause of action is contractual in nature and the essential allegations for a claim in contract must be made. If the credit agreement prima facie falls within the ambit of the CAA or of the Usury Act 73 of 1968 and it is relevant whether such Act is applicable, the plaintiff must plead sufficient facts to show that the relevant Act is not applicable. Botha v Potch Motors (Edms) Bpk 1963 (1) SA 279 (T) Credit Corporation of SA Ltd v Swart 1959 (1) SA 555 (O) [Page 119] For instance, a vehicle designed to seat more than fifteen persons does not fall under the CAA. Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA) Cf Dorbyl Vehicle Trading & Finance Co (Pty) Ltd v Klopper 1996 (2) SA 237 (N) KO Motors CC v Gilindoda [1999] 3 All SA 517 (E); 1999 (4) SA 251 (E) In so far as the credit agreement contains reciprocal obligations, the credit grantor must allege that it has performed or tendered to perform its obligations in terms of the agreement. See : EXCEPTIO NON ADIMPLETI CONTRACTUS The remedies available to the plaintiff on breach of contract will usually be determined by the terms of the agreement. A plaintiff may not allege that the agreement subsists and, in the alternative, that it has been cancelled. Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 469 It is, however, possible to plead facts that would entitle the plaintiff to cancel the contract and to plead in the alternative that, if such facts are not correct, the plaintiff is entitled to specific performance. Jardin v Agrela 1952 (1) SA 256 (T) Clarke Brothers & Brown (1913) Ltd v Truck & Car Co Ltd 1952 (3) SA 479 (W) It is also possible to allege that the contract was cancelled and, in the alternative, that, if it is found that the contract was not properly cancelled, reliance may be placed on the contract itself. Deposit and period of the agreement: Where the agreement is governed by the CAA, it must be alleged, having regard to section 6(5) of that Act, that the initial payment or initial rental (as the case may be) has been paid or that the necessity for such payment is exempted by the regulations under the CAA. Marais v Standard Credit Corporation Ltd 2002 (4) SA 892 (W) A credit agreement is invalid if the initial payment or initial rental prescribed by regulation is not paid. Credit Agreements Act 75 of 1980 s 6(5) Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 689B 694A–B Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279C–D A credit agreement assumes validity once the initial payment or initial rental is paid, even if such payment occurs some time after conclusion of the agreement, provided that neither party has sought to avoid the agreement prior to such payment. Credit Agreements Act 75 of 1980 s 6(5) read with s 1 sv “initial payment” and “initial rental” Van der Westhuizen v BOE Bank Bpk 2002 (1) SA 876 (T) A credit agreement which exceeds the prescribed period is invalid. Credit Agreements Act 75 of 1980 s 6(6) Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) at 905G–H 913C–D Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279C–D The regulations create an exemption from the requirements as to minimum initial payment (or initial rental) and maximum period. Regulation 4 of Government Notice R401 dated 27 February 1981, as amended Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279D–E [Page 120] The onus rests on the party seeking to rely on the exceptions created by the regulations. Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279E Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) at 905J Specific performance: Where the plaintiff wishes to rely on an acceleration clause, such a clause must be pleaded. Cf Hugo NO v Durbach 1961 (2) SA 780 (O) Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 (4) SA 450 (D) The plaintiff should allege that the claim does not conflict with section 14.
Where the agreement is governed by the Usury Act 73 of 1968, a rebate should be given and pleaded, if such rebate is due (see below). Rescinding or cancelling the agreement, return of the goods and damages: The plaintiff must plead the term (if any) entitling it to cancel or must allege facts which would entitle it to cancel – such as mora when time is of the essence, or a breach going to the root of the contract, or repudiation. Where the plaintiff claims return of the goods, it is necessary to allege that a notice in terms of section 11 was given. Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA) at 68D First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd 1988 (4) SA 924 (W) The credit grantor is entitled to attach the goods prior to the expiry of 30-day notice period. The goods must be kept safe, pending the resolution of the dispute between the parties. BMW Financial Services SA (Pty) Limited v Mogotsi [1999] 4 All SA 415 (W); 1999 (3) SA 384 (W) The credit grantor must make out a proper case, and not rely on mere generalised allegations, in order to enable the court to exercise its discretion. BMW Financial Services (SA) (Pty) Ltd v Rathebe [2002] 2 All SA 571 (W); 2002 (2) SA 368 (W) The credit grantor need not allege or prove that the notice reached the credit receiver and the notice need not have reached the defendant to be valid. Marques v Unibank Ltd [2000] 4 All SA 146 (W); 2001 (1) SA 145 (W) It is unnecessary to plead compliance with section 11 where the credit receiver repudiated the agreement or where the credit grantor has already retaken possession without judicial intervention. Babha v Bothner & Sons Ltd 1951 (1) SA 12 (T) Trust Bank van Afrika Bpk v Eales 1989 (4) SA 509 (T) Mdakane v Standard Bank of South Africa Ltd [1998] 3 All SA 1 (W); 1999 (1) SA 127 (W) Maswanganyi v First National Western Bank Ltd 2002 (3) SA 365 (W) A credit grantor may recover her or his goods by means of the rei vindicatio, thus relying simply on her or his ownership. Any plea regarding the existence of an agreement would have to be met by way of a replication. Chetty v Naidoo 1974 (3) SA 13 (A) See : VINDICATION In the case of a claim for repossession following cancellation of the agreement, the plaintiff must either tender repayment of the amounts already paid or claim a declaration of forfeiture if entitled to do so in terms of the credit agreement. Underhay v Human 1959 (1) SA 567 (O) [Page 121] Damages recoverable by the credit grantor for breach of contract will normally be determined by the terms of the contract or, where the contract is silent, by the general principles of contract. However, certain provisions of the CAA and of the Usury Act must be borne in mind: (a)
(b)
(c)
Where the agreement is an instalment sale agreement, the CAA makes provision for the manner in which the value of the goods is to be determined. Credit Agreements Act 75 of 1980 s 16 In the case of a leasing transaction, there is no obligation to give credit for the value of the goods, save where the credit grantor sells or leases the goods for an amount which exceeds the money value thereof. Usury Act 73 of 1968 s 6K When the market or money value of goods is relevant, the statutes allow the deduction of certain costs incurred by the credit grantor. Credit Agreements Act 75 of 1980 s 16(1)(b) Usury Act 73 of 1968 s 6K(3)
(d) Where the parties have agreed that the valuation of the goods by a certain valuer will be final and binding, a claim for damages based on such a valuation will be a liquidated claim and susceptible to summary judgment. Leymac Distributors Ltd v Hoosen 1974 (4) SA 524 (D) Cf Western Bank Ltd v Meyer; De Waal; Swart 1973 (4) SA 697 (T) at 701–702 (e)
When the agreement is governed by the Usury Act, a rebate should be given and pleaded, if such rebate is due (see below).
Relief claimable: In the case of an instalment sale transaction, the court may order the return of the goods on condition that the amount owing by the credit receiver be reduced by an amount equal to the value of the goods or that the credit receiver be paid the excess of such value over the amount owing. Credit Agreements Act 75 of 1980 s 17
It is competent to claim specific performance and, in the event of the defendant’s failing to comply within the stated time with the terms of the order for specific performance, an order for cancellation and damages. Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) Ras v Simpson 1904 TS 254 at 256 Nedcor Bank Ltd v D & A Transport (Gauteng) CC 2001 (4) SA 74 (W) It is submitted that it is permissible to claim relief by way of a two-stage procedure: return of the goods, and, after the goods have been recovered and valued and/or sold, damages as determined at that stage. Cf Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) National Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v International Liquor Distributors (Pty) Ltd [2001] 1 All SA 417 (A); 2001 (2) SA 232 (SCA) The prayers for damages are usually postponed at the first hearing. Some courts allow the plaintiff, in the case of a default judgment, to establish by way of affidavit the damages, at the second stage. Credit Corporation of SA Ltd v Bosman 1958 (3) SA 845 (T) Cf Havenga v Parker 1993 (3) SA 724 (T) Abraham v City Council of Cape Town 1995 (2) SA 319 (C) This practice has not been followed by all courts. Trust Bank van Afrika Bpk v Krause 1959 (1) SA 574 (O) [Page 122] Where the agreement so provides, a claim must be made for a declaration of forfeiture of the instalments or rentals already paid if the plaintiff wishes to retain them. Underhay v Human 1959 (1) SA 567 (O) Where the credit receiver agreed to pay attorney and client costs in the case of a breach, the onus is on the credit receiver to show why that scale should not apply. South African Permanent Building Society v Powell 1986 (1) SA 722 (A) Ancillary and interim relief: Where the seller sues for return of goods which are the subject-matter of an instalment sale agreement, the court has wide powers to have the goods valued or protected pending the termination of the main proceedings. Credit Agreements Act 75 of 1980 s 17(2) The credit grantor may include in the summons a notice prohibiting any person from using or removing the goods in question, which notice has the effect of an interdict on any person having knowledge thereof. Credit Agreements Act 75 of 1980 s 18 At common law, the interim attachment of the goods pending the outcome of vindicatory or quasi-vindicatory proceedings is well known. Loader v De Beer 1947 (1) SA 87 (W) The credit grantor is not entitled to an interim attachment order unless the credit agreement is first cancelled, since, as a general rule, the credit receiver is entitled to possession and use as long as the contract subsists. Steyn’s Foundry (Pty) Ltd v Peacock 1965 (4) SA 549 (T) Cf Sarann Furnishers (Pty) Ltd v Brink NO 1966 (3) SA 48 (N) Where the CAA applies, the credit grantor may not claim interim attachment of the goods before notice has been given under section 11 and before the period of 30 days has expired. First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd 1988 (4) SA 924 (W) Cf Santambank Bpk v Dempers 1987 (4) SA 639 (O) Defences: Since the claim is contractual in nature, the usual contractual defences are available to the defendant. A credit agreement which does not comply with the formalities prescribed by section 5(1) “shall not merely for that reason be invalid”. Credit Agreements Act 75 of 1980 s 5(2) The same applies to contracts which do not comply with the provisions of the Usury Act. Usury Act 73 of 1968 s 3(8) The provisions of the Conventional Penalties Act 15 of 1962 may not be invoked in so far as they are in conflict with a provision of the CAA. Conventional Penalties Act 15 of 1962 s 5 A plea that the claim contains usurious interest will not defeat the claim. A plaintiff is entitled to abandon so much of the interest element of the claim as may be usurious. McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W) If the defendant alleges that usurious interest is claimed by or has been paid to the plaintiff, the court, if so requested, must before granting judgment afford the defendant the opportunity of examining the plaintiff, unless it [Page 123] appears to the court that the examination is impracticable or that the defendant’s allegation is prima facie without foundation.
Usury Act 73 of 1968 s 11 Adfin (Pty) Ltd t/a Rand Trust v Fashion Shoe Centre (Pty) Ltd 1990 (4) SA 371 (C) 1166 Roodekrans CC and others v Nedcor Bank Ltd [2001] 2 All SA 666 (W) See : LOANS The Usury Act and finance charges: The Usury Act regulates the limitation and disclosure of finance charges in credit agreements. Where the credit receiver defaults, the credit grantor’s claim for interest (“finance charges”) is limited to: (a)
(b)
finance charges on the balance of the principal debt (as defined in section 1) which is owing from time to time, for the period commencing on the date on which the credit grantor pays or tenders the principal debt and terminating on the accelerated date for payment; Credit Agreements Act 75 of 1980 s 5(1)(c) Ex parte Minister of Justice 1978 (2) SA 572 (A) at 589–595 additional finance charges on the amount which is owing but not paid, for the period commencing on the day following the agreed date for payment and terminating on the date of payment. Credit Agreements Act 75 of 1980 s 5(1)(d) read with s 4 Ex parte Minister of Justice 1978 (2) SA 572 (A) at 596–597
Additional finance charges are calculated at the rate at which finance charges were initially calculated. This follows as a matter of law and need not be agreed to by the credit receiver. Credit Agreements Act 75 of 1980 s 4 Premier Finance Corporation (Pty) Ltd v McKie 1979 (3) SA 1308 (T) The effect of section 5(1)(c) is to prevent the credit grantor from claiming “unearned” finance charges from the credit receiver. This is usually reflected in a “rebate” or “reduction of finance charges” given to the credit receiver. The accurate method of calculating the rebate due is to calculate the finance charges due and/or paid for each month of the agreement. The simpler calculation – which is more favourable to the credit receiver and, accordingly, unobjectionable – is to reduce the total finance charges pro rata according to the unexpired period of the agreement – that is, the unexpired period after the date of acceleration. For example, where A is the total finance charges in terms of the agreement, B is the total period of the agreement in months, and C is the unexpired period of the agreement after the date of acceleration in months, the rebate due is:
Ex parte Minister of Justice 1978 (2) SA 572 (A) dealt with specific performance and accordingly affords no direct guideline with regard to claims for damages. Where the claim for damages is liquidated by, for instance, a certificate or an agreement to accept the valuation of the goods as final and binding, it is submitted that the “accelerated date for payment” will simply be replaced by the due date for payment in accordance with the agreement. Where the claim is illiquid, it is suggested that the equivalent date of the “accelerated date for payment” will be the date of judgment and that the rebate should be calculated as at that date. [Page 124] Both the principal debtor and the surety are entitled to claim a statement of information from the creditor, in terms of section 10(2). Varvarigos v Fidelity Bank Ltd 1989 (4) SA 384 (W) PRECEDENTS Claim – for specific performance 1. On [date] at [place], plaintiff and defendant concluded a written agreement of lease in terms of which plaintiff let to defendant a certain motor vehicle. A copy of the agreement is annexed hereto and marked “A”. The material terms of the agreement of lease are the following: (a) (b) (c) (d) (e)
[payments]; [acceleration clause]; [interest]; [scale of costs]; [and so on].
2.
3. Plaintiff has performed its obligations in terms of the agreement of lease. 4. Defendant has paid the initial rental and has paid certain further rentals. 5. In breach of the agreement of lease, defendant has [state nature of breach]. 6. Accordingly, plaintiff is entitled to immediate payment of the full balance outstanding, being the sum of [Rx]. 7. Defendant is entitled to a reduction of finance charges of [Ry]. 8. In the premises, defendant is indebted to plaintiff in the sum of [Rx–Ry]. 9. Payment of the aforesaid amount of [Rx–Ry] will not place plaintiff in a better financial position than that which plaintiff would have been in if defendant had carried out his obligations in terms of the agreement of lease. WHEREFORE plaintiff claims . . . Claim – for repossession and damages 1. On [date] at [place], plaintiff and defendant concluded a written instalment sale agreement in terms of which plaintiff sold to defendant a certain motor vehicle. A copy of the instalment sale agreement is annexed hereto and marked “A”. The material terms of the instalment sale agreement were the following: (a) (b) (c) (d) (e) (f)
2.
[payments]; [reservation of ownership]; [breach clause entitling cancellation, repossession, forfeiture and damages]; [interest]; [scale of costs]; [and so on].
Plaintiff has performed its obligations in terms of the instalment sale agreement. In breach of the instalment sale agreement, defendant has [state nature of breach].
3. 4.
5. Despite due demand in terms of section 11 of Act 75 of 1980, defendant failed to remedy the said breach within the required 30 days’ period, in consequence of which plaintiff hereby cancels the instalment sale agreement. 6. In the premises: (a) plaintiff is entitled to repossess the goods; (b) plaintiff is entitled to an order declaring the amounts paid by defendant to be forfeited in favour of plaintiff; [Page 125] (c) plaintiff is entitled to recover from defendant an amount calculated by deducting from the total purchase price the deposit and instalments paid, such value as the goods may have upon their return to plaintiff, and such reduction of finance charges to which defendant may be entitled.
7. Plaintiff will be unable, until the return of the goods to it and the subsequent determination of the value thereof, to determine the amount due to it in terms of paragraph 6(c) above. WHEREFORE plaintiff claims: (a) An order directing defendant to return forthwith the motor vehicle, being [description], to plaintiff and, failing compliance therewith within such time as may be directed by the above honourable court, authorising and directing the sheriff to take the said vehicle into his possession and to deliver the same to plaintiff. (b) An order declaring the amounts paid by defendant to be forfeited in favour of plaintiff. (c) That judgment for the amount to which plaintiff may be entitled in terms of paragraph 6(c) above, together with interest thereon, be postponed sine die, pending the return of the goods to plaintiff, the subsequent determination of the value thereof, and the subsequent calculation of the amount to which plaintiff is entitled. Claim – for damages (goods already recovered) 1. On [date] at [place], plaintiff and defendant concluded a written agreement of lease in terms of which plaintiff let to defendant a certain motor vehicle. A copy of the agreement is annexed hereto and marked “A”. 2. The material terms of the agreement of lease were the following: (a) [payments]; (b) [breach clause entitling cancellation, repossession, forfeiture and damages]; (c) [interest]; (d) [scale of costs]; (e) [and so on]. 3. Plaintiff has performed its obligations in terms of the agreement of lease. 4. Defendant has paid the initial rental and has paid certain further rentals. 5. In breach of the agreement of lease, defendant has [state nature of breach]. 6. In consequence of the aforesaid breach of contract, plaintiff cancelled the agreement of lease. 7. The arrear rentals as at the date of cancellation of the agreement of lease amount to [Rx]. 8. The total rentals which would have fallen due after the cancellation of the agreement of lease amount to [Ra]. 9. (a)
Plaintiff has received possession of the vehicle from defendant, defendant having voluntarily returned the vehicle to plaintiff.
(b) The vehicle was subsequently sold for [Rb], being in excess of the fair market value of the vehicle at the time of recovery of possession thereof by plaintiff. 10. In consequence of the aforesaid breach of contract and subsequent cancellation of the agreement of lease, defendant is obliged to pay the following amounts to plaintiff: (a) arrear rentals as at the date of cancellation of the agreement of lease, being the amount of [Rx]; (b)
damages calculated in accordance with the provisions of the agreement of lease, being the amount of [Ra–Rb], which amount is calculated as follows: Total rentals which would have fallen due after the date of cancellation [Ra] Less the value of the goods [Rb] [Ra–Rb] 11. The reduction of finance charges to which defendant may be entitled in terms of the provisions of the Usury Act 73 of 1968 will be calculated as at the date of judgment and deducted from the damages aforesaid. [Page 126] WHEREFORE plaintiff claims: (a) Payment of the sum of [Rx]. (b) Interest on the said sum of [Rx] at the rate of [percentage] per annum from the [day after the date of cancellation] to the date of payment. (c)
Payment of the sum of [Ra–Rb], less such reduction of finance charges to which defendant may be entitled, calculated as at the date of judgment.
(d) Interest on the said sum in prayer (c) at the rate of [percentage] per annum from the date of judgment to the date of payment. Pleadings/Amlers Precedents of Pleadings/C/Custom and Customary Law Custom and Customary Law Indigenous law: Any court may take judicial notice of the law of a foreign state and of indigenous law, in so far as such law can be ascertained readily and with sufficient certainty. Law of Evidence Amendment Act 45 of 1988 s 1 Otherwise, indigenous law has to be proved as custom. In cases between blacks, a party may rely on indigenous law but has to allege and prove the: (a) tribal connection of the two litigants; (b) particular system of indigenous law applicable; and (c) relevant principles which are applicable. Maisela v Kgolane NO [2000] 1 All SA 658 (T); 2000 (2) SA 370 (T) These rules must not be in conflict with the Constitution Hlophe v Mahlalela 1998 (1) SA 449 (T) or with public policy or natural justice. Metiso v Padongelukfonds [2002] 1 All SA 291 (T); 2001 (3) SA 1142 (T) Custom as a rule of law: Customs observed within a community may harden into rules of law. The force of such customs has its origin in the convictions and tacit acceptance of the community concerned. In order to constitute law, a custom must: (a) have existed for a long time; (b) have been uniformly observed by the community concerned; (c) be reasonable; and (d) be certain. Van Breda v Jacobs 1921 AD 330
Trade usage: Trade usage may form an implied or tacit term of an agreement. It may be implied even if one of the parties was unaware of its existence. The implication must nevertheless be necessary and not merely reasonable. The requirements relating to proof of a custom are equally applicable. Bertelsmann v Per 1996 (2) SA 375 (T) at 382–383 Onus: The party wishing to rely on either custom or trade usage has to plead and prove such custom or usage. Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA 642 (C) at 464 PRECEDENTS Claim 1. Plaintiff is an advocate. 2. Defendant is an attorney. [Page 127] Defendant engaged the plaintiff‘s professional services on behalf of the defendant’s client. Defendant in so doing acted on the instructions of the client. Plaintiff duly performed the mandate according to his instructions. Plaintiff rendered accounts to the defendant in respect of the said work. Plaintiff’s fees are fair and reasonable.
3. 4. 5. 6. 7.
8. As a matter of custom, once an attorney briefs an advocate, the attorney is responsible for payment of counsel’s fees. 9. The said custom has existed for a long time, is uniformly observed in the legal profession, and is reasonable and certain. It consequently has the effect of a legal rule; alternatively, it is an implied term of the defendant’s mandate to plaintiff. Pleadings/Amlers Precedents of Pleadings/D/Damages: Delictual Damages: Delictual Related subjects: CONTRACT: DAMAGES CONTRIBUTORY NEGLIGENCE INIURIA (for sentimental damages) LEX AQUILIA MOTOR VEHICLE ACCIDENTS POSSESSORS: DAMAGES CLAIMS BY WORKMEN’S COMPENSATION General: It is for the plaintiff to allege and prove the damages suffered as a result of the defendant’s wrongful act. A plaintiff claiming for prospective loss (damage or loss which has not yet materialised) need not prove, on a preponderance of probability, that such a loss will occur or arise; instead, a contingency allowance for the possibility of the loss is made. Erasmus v Davis 1969 (2) SA 1 (A) Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (SCA) at par 22 See : MOTOR VEHICLE ACCIDENTS A defendant who, in the plea, admits liability for payment of damages but for a lesser amount than that claimed, need not particularise the admission; nor does such admission attract any onus. Turners Asbestos Products (Pvt) Ltd v G Straw & Son (Pvt) Ltd 1974 (3) SA 286 (R) Difficulties of proving damages: If damages are difficult to determine or cannot be assessed with certainty, the plaintiff will be entitled to judgment upon production of all the evidence that can reasonably be produced to enable the court to assess the quantum of damage. Hersman v Shapiro & Co 1926 TPD 367 at 367–379 Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A) Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (A); 1997 (4) SA 399 (SCA) Sentrachem Bpk v Wenhold 1995 (4) SA 312 (A)
Venter v Bophuthatswana Transport Holdings (Edms) Bpk [1997] 2 All SA 257 (A); 1997 (3) SA 374 (SCA) De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA) Actuarial calculations: Actuarial calculations provide a guideline only and a court is not tied down by them. Lambrakis v Santam Ltd 2000 (3) SA 1098 (W) [Page 128] “Once and for all” rule: In general, a plaintiff must claim in one action all damages flowing from one cause of action, whether already sustained or prospective. Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835 National Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v International Liquor Distributors (Pty) Ltd [2001] 1 All SA 417 (A); 2001 (2) SA 232 (SCA) Signature Design Workshop CC v Eskom Pension & Provident Fund 2002 (2) SA 488 (C) Measure of damages: A plaintiff is entitled to recover from the wrongdoer the amount by which the plaintiff’s patrimony was diminished as a result of the wrongdoer’s conduct. Trotman v Edwick 1951 (1) SA 443 (A) Ranger v Wykerd 1977 (2) SA 976 (A) Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at 917 Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A) The measure of damages is the value of the article to the owner and that value is determined as the value of such article on the day of the delict. Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) In order to prove that amount, the plaintiff may, in respect of damage to an article, prove the reasonable cost of repairs to that article in order to restore it to its original state, Ranger v Wykerd 1977 (2) SA 976 (A) at 992 or the difference between the pre-delict value and the post-delict value. Smit v Saipem 1974 (4) SA 918 (A) De La Rey’s Transport (Edms) Bpk v Lewis 1978 (1) SA 797 (A) The plaintiff is entitled to the lesser of the two amounts and has to show that the measure chosen is the correct one under the circumstances. Erasmus v Davis 1969 (2) SA 1 (A) Albertus v Jacobs 1975 (3) SA 836 (W) Ngubane v SA Transport Services 1991 (1) SA 756 (A) at 784–785 The fact that the plaintiff, in the pleadings, relied on one of these methods does not necessarily disqualify her or him from proving the amount of damages via the other method. Joubert v Santam Versekeringsmaatskappy Bpk 1978 (3) SA 328 (T) (It is unlikely that the defendant would have been taken by surprise, because of the requirement of expert summaries.) In respect of the complete loss of an article, the plaintiff must establish its market or replacement value at the date of the delict. Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) The assessment of the damages suffered requires that one does not have regard to the detrimental consequences of the delict, nor to the advantageous results of such delict. Standard General Insurance Co Ltd v Dugmore NO [1996] 4 All SA 415 (A); 1997 (1) SA 33 (SCA) Ongevallekommissaris v Santam Bpk [1998] 4 All SA 507 (A); 1999 (1) SA 251 (SCA) Personal injury claims: For personal injuries, the plaintiff is entitled to claim: (a) (b)
actual pecuniary loss – for example, medical expenses and loss of earnings; pain and suffering;
[Page 129] (c) actual pecuniary prospective loss – for example, future medical expenses and loss of future earnings; (d) actual pecuniary loss of an earnings capacity. Actual loss implies that there must be a diminution of the plaintiff’s estate. Rudman v Road Accident Fund [2002] 4 All SA 422 (SCA); 2003 (2) SA 234 (SCA) Particularity of damages: Uniform rule 18(10), (11) and (12), which must be complied with, reads as follows:
(10) A plaintiff suing for damages shall set them out in such a manner as will enable the defendant reasonably to assess the quantum thereof: Provided that a plaintiff suing for damages for personal injury shall specify his date of birth, the nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise to such damages, and shall as far as practicable state separately what amount, if any, is claimed for: (a) medical costs and hospital and other similar expenses and how these costs and expenses are made up; (b) (c)
pain and suffering, stating whether temporary or permanent and which injuries caused it; disability in respect of: (i) the earning of income (stating the earnings lost to date and how the amount is made up and the estimated future loss and the nature of the work the plaintiff will in future be able to do); the enjoyment of amenities of life (giving particulars);
(ii)
and stating whether the disability concerned is temporary or permanent; and (d) disfigurement, with a full description thereof and stating whether it is temporary or permanent. (11)
A plaintiff suing for damages resulting from the death of another shall state the date of birth of the deceased as well as that of any person claiming damages as a result of the death.
(12) If a party fails to comply with any of the provisions of this rule, such pleading shall be deemed to be an irregular step and the opposite party shall be entitled to act in accordance with rule 30. The plaintiff is required to set out the particulars of the claim in such a manner as to enable the defendant to estimate the quantum. It does not matter whether the damages claimed are special or general (“general” in this context does not refer to sentimental damages but to damages that have to be estimated). Thompson v Barclays Bank, DCO 1965 (1) SA 365 (W) Durban Picture Frame Co (Pty) Ltd v Jeena 1976 (1) SA 329 (D) Simmonds v White 1980 (1) SA 755 (C) Bell, Van Niekerk & Van Niekerk v Oudebaaskraal (Edms) Bpk 1985 (1) SA 127 (C) Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a LH Marthinusen 1992 (4) SA 466 (W) Minister van Wet & Orde v Jacobs 1999 (1) SA 944 (O) For the purpose of making a tender, a defendant is entitled to know the true nature of the plaintiff’s claim. The rule does not contemplate that a defendant can sit back and expect to be supplied with all the information that [Page 130] might be required in order to make an adequate tender. he defendant is not entitled to an “advance abridged edition” of plaintiff’s evidence. Simmonds v White 1980 (1) SA 755 (C) It should be noted that some of the information required may be obtained by means of a request for further particulars for the purposes of the trial. Uniform rule 21(4) and (5) Mitigation of damages: A defendant may prove that the amount claimed by the plaintiff does not represent the true amount for which the defendant is liable, because of a failure by the plaintiff to have prevented the accumulation of loss. Reliance on such a failure requires a positive allegation to that effect and is one that attracts an onus. Maja v SA Eagle Ins Co Ltd 1990 (2) SA 701 (A) A defendant who proves the failure need not quantify the amount of damages. The plaintiff must still prove what the damages are. Van Almelo v Shield Insurance Co Ltd 1980 (2) SA 411 (C) Jayber (Pty) Ltd v Miller 1980 (4) SA 280 (W) Krugell v Shield Versekeringsmaatskappy Bpk 1982 (4) SA 95 (T) A court should not be astute in holding that the defendant has discharged this onus. De Pinto v Rensea Investments (Pty) Ltd 1977 (4) SA 529 (A) The test is one of reasonableness. Smit v Abrahams 1994 (4) SA 1 (A) at 11–12
Collateral benefits: Generally, any compensation a plaintiff receives from a collateral source, wholly independent of the wrongdoer, does not operate to reduce the damages recoverable. Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) at 168 The exact limits of this rule cannot be stated succinctly. For instance, ascertaining a plaintiff’s loss due to an infringement of earning capacity, every benefit (i) under the contract of employment and (ii) bestowed as compensation for loss of earnings or earning capacity must be deducted. On the other hand, benefits paid as a form of solatium or out of generosity and, in general, insurance payments are not deductible General Accident Ins Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v Carstens NO; General Accident Ins Co SA Ltd v Nhlumayo 1987 (3) SA 577 (A) Standard General Insurance Co Ltd v Dugmore NO [1996] 4 All SA 415 (A); 1997 (1) SA 33 (SCA) When damages are assessed for loss of support as a result of a person’s death, no insurance money, pension or benefit which has been or will or may be paid as a result of the death, may be taken into account. Assessment of Damages Act 9 of 1969 s 1 Inquiry into damages: Except for patent and copyright cases (where special provisions apply) a plaintiff is not entitled to claim an inquiry into damages. The plaintiff must allege the quantum of damages in the particulars of claim. Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) at 328 Rectifier & Communication Systems (Pty) Ltd v Harrison 1981 (2) SA 283 (C) A plaintiff who, in addition to a declaratory order or an interdict, claims damages, alleges an inability, existing at that stage, to quantify the damages may claim that the action be postponed in order that the question of the damages [Page 131] suffered may be investigated and determined by the court. If the parties are unable to reach agreement regarding the future conduct of the case, any party may apply in terms of Uniform rule 33(5) for directions. Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) Loss of support: See : LOSS OF SUPPORT. Interest: For interest on damages, see: INTEREST. Pleadings/Amlers Precedents of Pleadings/D/Deceased Estates Deceased Estates See :
ADMINISTRATION OF DECEASED ESTATES
Pleadings/Amlers Precedents of Pleadings/D/Declaration of Rights Declaration of Rights The high court may, in its discretion and at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation. It does not matter that such person cannot claim relief consequent upon the determination. Supreme Court Act 59 of 1959 s 19(1)(a)(iii) The present provision differs somewhat from its antecedent and some of the older decisions dealing with the subject are no longer fully applicable. Court: Only the high court may grant a declaration of rights. Procedure: If a dispute of fact is foreseeable, the declaration of right should be sought by way of action. If there are no real factual disputes, application procedure can be utilised. Claimants must set out their contentions as to their alleged right, and what interest they have in the right. Electrical Contractors’ Association SA v Building Industries Federation SA (2) 1980 (2) SA 516 (T) Interested person: It is an essential requirement that there be an interested person upon whom the declaration will be binding. That does not mean that there must be an existing dispute. Ex parte Nell 1963 (1) SA 754 (A) Preston v Vredendal Co-Operative Winery Ltd [2000] 4 All SA 492 (E); 2001 (1) SA 244 (E) The interest of the claimant must be a real and not an abstract or intellectual one. Durban City Council v Association of Building Societies 1942 AD 27 JT Publishing (Pty) Ltd v Minister of Safety & Security 1997 (3) SA 514 (CC) It is not the function of a court to act in a consulting or advisory capacity. It may, however, in appropriate circumstances, base a declaration of right on assumed facts. Compagnie Interafricaine de Travaux v SA Transport Services 1991 (4) SA 217 (A) at 230 All interested parties must be joined. Stadsraad van Randburg v Ludorf NO 1984 (3) SA 469 (W) [Page 132] “Right”: A court cannot grant a declaration as to a fact. The declaration must relate to a right. The persons who have such a right are those in whom the right inheres or against whom it avails.
Electrical Contractors’ Association SA v Building Industries Federation SA (2) 1980 (2) SA 516 (T) The right or obligation can be in existence, in futuro or contingent. The word “contingent” is used in the sense of “not vested”. This means that the order may be granted before the cause of action arises. Suid-Afrikaanse Onderlinge Brand- en Algemene Versekeringsmaatskappy Bpk v Van den Berg 1976 (1) SA 602 (A) Discretion: If the court is satisfied that the claimant is an interested person and that there is an existing, future or contingent right or obligation, the court’s discretion arises as to whether or not it should issue a declaration. Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A) South African Mutual Life Assurance Society v Anglo-Transvaal Collieries Ltd 1977 (3) SA 642 (A) In considering whether to exercise its discretion in favour of issuing a declaratory order, the court may have regard to whether: (a) (b) (c)
there is an existing dispute; the order will be binding; and the claimant can claim other, and consequential, relief. Ex parte Nell 1963 (1) SA 754 (A) Mahomed v Mahomed 1976 (3) SA 151 (T) Safari Reservations (Pty) Ltd v Zululand Safaris (Pty) Ltd 1966 (4) SA 165 (D)
Declaratory relief may be granted under the prayer for alternative relief. Luzon Investments (Pty) Ltd v Strand Municipality 1990 (1) SA 215 (C) PRECEDENTS Claim – in relation to a will 1. The last will of the late [name] provides that his children are to inherit in equal shares the remainder of his estate. A copy of the will is annexed hereto. 2. Defendant alleges that he is the only child of the deceased and that he is, therefore, entitled to the whole of the remainder of the estate. 3. Plaintiff alleges that he is the only child of the deceased and that he is entitled to the whole of the remainder of the estate. 4. Plaintiff alleges, in the alternative, that the deceased had two children namely plaintiff and defendant and that plaintiff and defendant are entitled to inherit in equal shares. WHEREFORE plaintiff claims: (a) An order declaring that plaintiff is the only child of the deceased and is entitled to inherit the remainder of the estate. (b) Alternatively, an order declaring that plaintiff and defendant are the only children of the deceased and are entitled to inherit the remainder of his estate in equal shares. Claim – on a contract 1. On [date] at [place], plaintiff and defendant entered into a written contract. A copy is annexed as Annexure “A”. In terms of the contract, defendant gave plaintiff an option to purchase [item] at [place] before [date].
2.
[Page 133] 3. Defendant alleges that the option is void because of non-compliance with the provisions of section 2 of the Alienation of Land Act 68 of 1981 in that the property is not identifiable from the document. Plaintiff alleges that the option is not void for the reason stated or for any other reason.
4.
WHEREFORE plaintiff claims an order declaring the option contained in Annexure “A” to be valid and that plaintiff is entitled to exercise it on or before [date]. Pleadings/Amlers Precedents of Pleadings/D/Defamation Defamation Bill of rights: The Bill of Rights initially created a great deal of uncertainty in the field of defamation since it protects conflicting rights, namely that of dignity and privacy, on the one hand, and freedom of expression (including freedom of the press and other media) and political rights, on the other. To balance these rights and to determine the ranking in the field of defamation is difficult. Many of the problems have been solved by recent judgments of the Supreme Court of Appeal and the Constitutional Court. National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Khumalo v Holomisa 2002 (5) SA 401 (CC) Parties: A trading corporation is entitled to claim for general and actual damages caused by defamatory statements injuring its reputation as a business. A non-trading corporation can, in general, similarly sue for defamation if the statement concerning the way it conducts its affairs is calculated to cause it financial prejudice. Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A) Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 460 Even judges can sue. Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) As can political bodies. Argus Printing & Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) African National Congress v Inkatha Freedom Party [1999] 3 All SA 47 (W) On the other hand, the State and its organs cannot be defamed; Die Spoorbond v SA Railways; Van Heerden v SA Railways 1946 AD 999 Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZHC) although its officers (for example, ministers) can be defamed. SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) Jurisdiction: The jurisdiction of a court is determined according to the principles applicable to delictual claims. If a defendant is amenable to the jurisdiction of a court, that court has jurisdiction in respect of a defamation published outside its jurisdiction. Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) A peregrinus may sue for defamation published within the court’s area of jurisdiction. Simmonds v White 1980 (1) SA 755 (C) at 759 [Page 134] Cause of action: The actio iniuriarum protects, in this case, the dignity of the plaintiff. The action has, in relation to defamation, certain special characteristics which will be dealt with hereinafter. Terms of the statement: The plaintiff must set out the words alleged to have been used by the defendant and must prove them. It is not necessary to plead the actual words used. The plaintiff may allege that the words set out, “or more or less those words” (or some similar qualification), were used. Their effect and meaning are a matter for the court to decide, but the plaintiff must prove the words spoken or words bearing a similar meaning that are substantially the same. International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A) at 613–614 Moyse v Mujuru 1999 (3) SA 39 (ZSC) De Villiers v Schutte 2001 (3) SA 834 (C) at 837–839 Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C) The whole document containing the alleged defamation may be included in or annexed to the claim, without a specification of the defamatory passages. Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) The question is then whether the document as a whole is defamatory. Depending on the length and nature of the document, failure to specify the defamatory passages may render the pleading vague and embarrassing. Deedat v Muslim Digest 1980 (2) SA 922 (D) at 928 Where the statement is defamatory per se, a plaintiff may attach a particular meaning in the form of a “ quasi innuendo” to it and point to its sting. The plaintiff need not allege a sting but, once a sting is alleged, the plaintiff is bound to that sting and may not rely on any other. Marais v Steyn 1975 (3) SA 479 (T) at 486 Demmers v Wyllie 1978 (4) SA 619 (D) at 622
If the words published are, according to the defendant, materially different from those alleged by the plaintiff, a defence based on the former version is not permitted. The defendant should deny publication of the words alleged and, in the alternative, plead defences germane thereto. Mahomed v Kassim 1973 (2) SA 1 (RA) De Villiers v Schutte 2001 (3) SA 834 (C) Wrongfulness: As a general rule, it can be accepted that publication of a defamatory statement is prima facie wrongful. The onus rests on the defendant to dispel this prima facie case. This is a full onus and requires the defendant to allege and prove the facts that dispel wrongfulness – for example, truth and public interest. Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 769–780 National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Publication: The plaintiff must allege and prove publication of the defamatory statement. Publication must be to a person other than the plaintiff or the plaintiff’s spouse. It is not necessary to state the names of all the persons in whose presence the defamatory statement was made, but, as a general rule, only those persons whose identities have been pleaded may be called as witnesses to prove the publication. The purpose of the rule is to prevent the defendant from being taken by surprise. International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4) 1955 (2) SA 40 (W) Mograbi v Miller 1956 (4) SA 239 (T) [Page 135] If the name of the person to whom the publication was made is unknown, such fact must be alleged. Pillay v Naidoo 1916 WLD 151 If publication takes place in a publicly distributed document, it is not necessary to list the name or names of readers because it is factually presumed that publication did take place. There can be no publication unless or until the addressee understands the defamatory nature of the statement. Vermaak v Van der Merwe 1981 (3) SA 78 (N) The re-publication by the same person of a defamatory statement does not necessarily create a new cause of action, but may aggravate the damages. Mograbi v Miller 1956 (4) SA 239 (T) The re-publication thereof by a third person will, however, create a separate cause of action against the latter. Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) at 565 It is advisable to state where the defamatory statement was published. Rieseberg v Berry 1914 TPD 561 Reference to plaintiff: The general rule is: “In every defamation action the plaintiff must allege and prove that the defamatory words were published of and concerning him. So too, in a case of a so-called class or group libel, the plaintiff can only succeed if it is proved at the trial that the matter complained of, though expressed to be in respect of the class or group of which he is a member, is in fact a publication thereof and concerning him personally.” SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) at 810 The usual allegation is that the words were published “of and concerning the plaintiff”. If the plaintiff is not directly referred to by name in the statement, special circumstances, which would have identified the plaintiff to the addressees, must be pleaded. Argus Printing & Publishing Co Ltd v Weichardt 1940 CPD 453 Visse v Wallachs’ Printing & Publishing Co Ltd 1946 TPD 441 The test to be applied is whether the ordinary reasonable man hearing or reading the utterance would be likely to apply it to the plaintiff. Sauls v Hendrickse 1992 (3) SA 912 (A) This is an objective question, capable of determination at the exception stage, of “whether the words (pleaded) are reasonably capable of conveying to the reasonable reader, having average intelligence and knowledge” that the defamatory article refers to the plaintiff. SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) at 811 A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C) Defamatory nature of the statement: Although the plaintiff must allege that the statement was defamatory, it is a question of law whether the words complained of are reasonably capable of conveying to the reasonable reader a meaning which defames the plaintiff. Mohamed v Jassiem 1996 (1) SA 673 (A) at 703–704 Sindani v Van Der Merwe [2002] 1 All SA 311 (A); 2002 (2) SA 32 (SCA) The matter can be decided on exception. Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 20 Johnson v Beckett 1992 (1) SA 762 (A) Mangope v Asmal 1997 (4) SA 277 (T) [Page 136]
If the words complained of are capable of having a defamatory meaning in their ordinary sense, a cause of action is disclosed and that cause of action does not cease to be disclosed if the pleader, in paraphrasing the words, adds something in excess of their ordinary meaning. New Age Press Ltd v O’Keefe 1947 (1) SA 311 (W) Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) at 1226 If the plaintiff relies on the defamatory nature of the statement in its ordinary meaning, evidence of how a witness understood the statement is inadmissible. Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Political matters: The fact that the plaintiff is a political or public figure does not affect the onus. National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Khumalo v Holomisa 2002 (5) SA 401 (SCA) See : DEFAMATION DEFENCES Innuendo: Innuendo must be distinguished from implied meaning. An implied meaning depends on an interpretation of the words used. Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 21 If the words used are not defamatory per se but are, on the face of them, innocent, the plaintiff may rely on innuendo. The plaintiff must then set out the defamatory sense attributed to them, allege that the defendant so intended them, and that they were so understood by those to whom they were published. Wallachs Ltd v Marsh 1928 TPD 531 HT Group (Pty) Ltd v Hazelhurst [2003] 2 All SA 262 (C) A plaintiff is bound by the innuendo relied on in the pleadings but is not debarred from relying on the ordinary meaning if such meaning is defamatory per se. New Age Press Ltd v O’Keefe 1947 (1) SA 311 (W) The plaintiff must allege and prove the facts and circumstances warranting the innuendo pleaded. Unie Volkspers Bpk v Rossouw 1943 AD 519 Visse v Wallachs’ Printing & Publishing Co Ltd 1946 TPD 441 If a plaintiff relies on a secondary meaning, evidence is necessary because the plaintiff must prove the special circumstances by reason whereof the published matter would, to those aware of those circumstances, bear the secondary meaning relied upon. The plaintiff must also prove that there were persons, among those to whom the publication was made, who were aware of the special circumstances and to whom it can, therefore, be inferred that publication was likely to have conveyed the imputation relied upon. Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Unie Volkspers Bpk v Rossouw 1943 AD 519 at 524 Sutter v Brown 1926 AD 155 at 166 Falsity: Falsity is not a matter to be alleged or proved by the plaintiff, because the defamatory nature of a statement does not dependent on its falsity. Sutter v Brown 1926 AD 155 at 172 A defendant may, however, justify the statement by alleging and proving its truthfulness and that its publication was in the public interest. Alternatively, a publisher may rely on the reasonableness of the statement to dispel the allegation of wrongfulness. National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Khumalo v Holomisa 2002 (5) SA 401 (SCA) par 43 [Page 137] The truth of the statement may affect the quantum of damages. Animus iniuriandi : Animus iniuriandi has two elements, namely the intent to defame and knowledge of wrongfulness. SAUK v O’Malley 1977 (3) SA 394 (A) A plaintiff who must allege animus iniuriandi is assisted by a presumption that the publication of a defamatory statement takes place animo iniuriandi. Thus, the defendant bears the onus of disproving this position. See : DEFAMATION DEFENCES If the defamation was committed by a member of the public media (for example, the press, radio or television), the plaintiff need not allege or prove animus iniuriandi. The defendant is entitled to plead and prove the lack of animus iniuriandi, provided the defendant was not negligent in publishing the utterance in question. National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Marais v Groenewald [2000] 2 All SA 578 (T); 2001 (1) SA 634 (T) Interdicts: A party may obtain an interdict based on defamation, but courts should be slow in granting interim interdicts. Hix Networking Technologies CC v System Publishers (Pty) Ltd [1996] 4 All SA 675 (A); 1997 (1) SA 391 (SCA) Apology: While it is not competent to order a defendant to publish an apology, an order making payment of damages subject to the failure to apologise is possible. Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W)
Damages: The plaintiff need not give particulars relating to the quantification of general damages or provide particulars in respect of the plaintiff’s reputation, standing in the community, character or the extent of the publication. Simmonds v White 1980 (1) SA 755 (C) at 758 Although not a rule of pleading, a rule of practice requires that a defendant give notice, prior to the trial, of an intention to lead evidence, in mitigation of damages, on the general character or reputation of the plaintiff. Klisser v SA Associated Newspapers Ltd 1964 (3) SA 308 (C) Thole v Minister of Justice 1967 (3) SA 531 (D) For the factors relevant in determining the quantum of damages, see: SA Associated Newspapers Ltd v Samuels 1980 (1) SA 24 (A) Buthelezi v Poorter 1975 (4) SA 608 (W) Van der Berg v Coopers & Lybrand Trust (Pty) Ltd [2001] 1 All SA 425 (A); 2001 (2) SA 242 (SCA) The plaintiff may also claim for actual patrimonial loss, in which event the principles applicable to proof of damages apply. Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) See : DAMAGES: DELICTUAL Where the plaintiff claims damages in respect of two separate defamatory publications, damages ought to be apportioned in the pleadings. If the two publications are of the same statement, this rule does not apply. Argus Printing & Publishing Co Ltd v Rutland 1953 (3) SA 446 (C) [Page 138] PRECEDENTS Claim – against member of public media 1. (a) (b) (c) (d)
First defendant is the editor of the [name] newspaper. Second defendant is the owner and publisher of the said newspaper. Third defendant is the distributor of the said newspaper. Fourth defendant is the printer of the said newspaper.
2. On [date] at [place], an article entitled [name] was published in the said newspaper. A copy of the article is annexed hereto. 3. The said newspaper is a paper widely distributed in South Africa and widely read by the general public. 4. The said article stated of plaintiff that [detail]. 5. The said words, in the context of the article, are wrongful and defamatory of plaintiff in that they were intended and were understood by readers of the newspaper to mean that plaintiff is dishonest in the following respects [detail]. 6. As a result of the defamation, plaintiff has been damaged in his reputation and has suffered damages in the amount of [amount]. WHEREFORE plaintiff claims against defendants, jointly and severally, payment of [amount] being damages. Claim – for group defamation to 3. [As before.]
1. 4.
(a) The said article is per se defamatory of a group of persons, namely [specify], in that it alleges [detail]. (b)
Plaintiff is a member of the group and this fact is a matter of common knowledge because [specify]. (c)
The reference to the group was intended to include a reference to plaintiff and would so be understood by the ordinary reader. 5. and 6. [As before.] Claim – against an individual On [date] at [place], defendant stated to [name] of and concerning plaintiff that [detail]. The statement by defendant is wrongful and defamatory of plaintiff. The statement was made with the intention to defame plaintiff and to injure his reputation.
1. 2. 3.
4. The statement was understood by the addressee and was intended by defendant to mean that plaintiff is dishonest in the following respects [detail]. 5. As a result of the defamation, plaintiff has been damaged in his reputation and has suffered damages in the sum of [amount]. Claim – alleging a sting Apart from the defamatory meaning of the article as set out above, the article carries the additional sting that plaintiff is: (a) not a law-abiding citizen; (b) a coward; and (c) without moral fibre. [Page 139] Claim – alleging innuendo 1. Defendant distributed a pamphlet to plaintiff’s employees on [date] at [place]. A copy of the pamphlet is annexed hereto. 2. The content of the pamphlet is false and defamatory of plaintiff in that it imputes, and was intended by defendant to impute, and was understood by the persons to whom it was distributed to impute, that plaintiff, although in a financial position to do so, had consistently over a period of years failed to pay a living wage to his employees and was thereby guilty of unconscionable and oppressive conduct unworthy of a reputable businessman. Claim – alleging innuendo 1. The said article stated, inter alia, of plaintiff that “he is, oh, so honest”. 2. In the context of the article as a whole, defendant’s intention was to convey the innuendo that plaintiff is, in fact, dishonest. The article was so understood as to convey the meaning that plaintiff is dishonest. The innuendo is wrongful and is defamatory of plaintiff.
3. 4.
Claim –alleging innuendo The contents of the said news report were wrongful and defamatory of the plaintiff in that it was intended to mean, and was understood by the persons to whom it was addressed to mean that the plaintiff: (a) was guilty of criminal conduct in that he participated in or associated himself with the activities of murderers; (b) was a criminal;
(c) acted with a common purpose with the perpetrators of the murders referred to in, in that he led the murderers to the house where the murders were committed; (d)
threatened that should he be arrested in connection with the said murders, he would cause a civil war. [From Buthelezi v South African Broadcasting Corporation [1998] 1 All SA 147 (D); 1997 (12) BCLR 1733 (D).]
Exception – non-defamatory allegation 1. The statement alleged to be defamatory of plaintiff is that plaintiff’s son was found guilty of rape. 2. Plaintiff does not rely on an innuendo or secondary meaning to be attached to the statement. 3. The statement is, in its ordinary significance, not defamatory of plaintiff. 4. Plaintiff’s particulars of claim, therefore, do not disclose a cause of action. Pleadings/Amlers Precedents of Pleadings/D/Defamation: Defences Defamation: Defences Related subjects: DEFAMATION Denial of defamation: A defendant who sets up the defence that the words complained of, although prima facie defamatory, were used in a non-defamatory sense, is obliged to plead the meaning which must be assigned to them, as well as the special circumstances on which reliance is placed in support of this non-defamatory meaning. National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984 Mahomed v Kassim 1973 (2) SA 1 (RA) Marais v Steyn 1975 (3) SA 479 (T) at 484–485 [Page 140] In such event, the onus would, presumably, rest on the defendant to prove these special circumstances. The defendant is under no obligation to particularise the denial of the plaintiff’s construction of the statement. Brett v Schultz 1982 (3) SA 286 (SE) Similarly, the defendant, in denying an innuendo, is not obliged to provide her or his own interpretation of the statement or any extrinsic facts relating to it. National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984 Absence of animus iniuriandi – public media: As has been indicated before, a member of the public media can rely on the absence of animus iniuriandi in order to escape liability for a defamatory publication disseminated via the media, provided the defamatory publication was not disseminated negligently. National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Animus iniuriandi – denial: A bare denial of animus iniuriandi by a defendant does not suffice because the onus is on the defendant. It is not enough to allege that the publication was lawful. SAUK v O’Malley 1977 (3) SA 394 (A) at 403 Brett v Schultz 1982 (3) SA 286 (SE) at 292 Animus iniuriandi – onus: On proof by the plaintiff that the defamatory words were used by the defendant and that they referred to the plaintiff, there is a rebuttable presumption that they were used wilfully and knowingly and that the object of their use was to defame the plaintiff – that is, that their publication was wrongful and that the defendant acted animo iniuriandi. The onus is then on the defendant to establish some lawful justification or excuse for the publication or establish the absence of an intention to injure the plaintiff. National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Marais v Groenewald [2000] 2 All SA 578 (T); 2001 (1) SA 634 (T) Categories: Although, in the past, certain “stereotyped defences” to rebut the presumption referred to above were used, such terminology is no longer technically necessary and the defence of absence of animus iniuriandi can be established without reference to them. If one of these defences is specifically pleaded, it will fall to be dealt with according to established principles. Jest: The defendant must show that the defamatory statement was made in jest and was, in the circumstances, so understood and could not reasonably have been understood in a defamatory sense. Rixa: If defamatory words are spoken in sudden anger provoked by the plaintiff, it may constitute a defence. Benson v Robinson & Co (Pty) Ltd 1967 (1) SA 420 (A) at 426 This can be pleaded in the alternative to a denial of the words used or to a plea of justification.
Wood NO v Branson 1952 (3) SA 369 (T) Lichtenburg Garage (Pty) Ltd v Gerber 1963 (4) SA 395 (T) [Page 141] Lack of knowledge of wrongfulness (“afwesigheid van wederregtelikheidsbewussyn”): Knowledge of wrongfulness is an element of animus iniuriandi and lack thereof is part of the defence. Whether it is a defence if the lack of knowledge is the result of negligence, is a moot point. Denial of wrongfulness: It is for the defendant to allege and prove that the defamation was not wrongful. The real question is whether making the statement was reasonable and, therefore, justifiable. It is advisable to cast the defence in one or other of the traditional moulds. Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 769–780 National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Truth and public interest: The defendant must allege and prove that: (a) the statement was true; and (b) its publication was to the benefit of the public. Johnson v Rand Daily Mails 1928 AD 190 Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 769–780 Yazbek v Seymour [2000] 2 All SA 569; 2001 (3) SA 695 (E) It is not necessary for the truth of every word used to be proved literally. Smit v OVS Afrikaanse Pers Bpk 1956 (1) SA 768 (O) It is sufficient for a statement to be substantially true in every material part. Johnson v Rand Daily Mails 1928 AD 190 at 505–506 Verwoerd v Paver 1943 WLD 153 “Anything that does not add to the sting need not be justified.” Yusaf v Bailey 1964 (4) SA 117 (W) at 126 Public benefit “lies in telling the public of something of which they were ignorant, but something which it was in their interest to know. If they already knew it, it hardly seems that mere repetition can be of value.” All the surrounding circumstances must be taken into account. Mahomed v Kassim 1973 (2) SA 1 (RA) It is not a matter for exception. Kemp v Republican Press (Pty) Ltd 1994 (4) SA 261 (E) Public media privilege: A defendant who cannot establish the truth of a defamatory statement can nevertheless rely on the reasonableness of the publication of the statement as a defence. National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) The defendant must allege and prove that he or she had reason to believe in the truth of the statement, took reasonable steps to verify its correctness, and that it was reasonable, in all the circumstances of the case, to have published it. Fair comment – essentials: The defendant must allege and prove that: (a)
the statement complained of was a comment (opinion) and not a statement of fact and that it was or would so have been understood by a reasonable hearer;
(b) the comment was fair. It need not necessarily have been impartial or well balanced. “Fair” is used in the vague sense “that it does not exceed certain limits”; [Page 142] (c) the facts commented on were truly stated; and (d) the matter was of public interest. Crawford v Albu 1917 AD 102 Marais v Richard 1981 (1) SA 1157 (A) Johnson v Beckett 1992 (1) SA 762 (A) Qualified privilege – essentials: This defence is available if the defamatory words were published in the discharge of a duty or exercise of a right to a person who had a duty or right to receive the statement. A typical case is a statement made in the course of litigation. The test is an objective one and the court will judge by the standard of the reasonable man, having regard to the relationship between the parties and the surrounding circumstances. Borgin v De Villiers 1980 (3) SA 556 (A) at 577
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd [2001] 1 All SA 425 (A); 2001 (2) SA 242 (SCA) The onus rests on the defendant. Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 769–780 The defendant must allege and prove (prima facie) that the statement was pertinent or germane to the issues. Joubert v Venter 1985 (1) SA 654 (A) Herselman NO v Botha 1994 (1) SA 28 (A) at 35 Qualified privilege – rebuttal: The plaintiff may rebut the defence by alleging (in her or his replication) and proving: (a) that the statement did not have some foundation in the evidence or circumstances surrounding the case, that it was not germane; or (b)
malice, that is an indirect or improper motive. May v Udwin 1981 (1) SA 1 (A)
Alternatives: More than one defence may be pleaded but it is normally necessary to plead them in the alternative. Problems may arise in presenting the evidence because evidence in respect of one defence may be inadmissible in respect of another. Strydom v Fenner-Solomon 1953 (1) SA 519 (E) at 527 A plea stating that, in so far as the words are statements of fact, they are true and, in so far as they are expressions of opinion, they constitute fair comment on a matter of public interest is not excipiable. Van der Hoven v Erasmus 1922 TPD 1 A plaintiff is entitled to know whether the defendant is setting up a defence of justification or fair comment or both. This is why a so-called “rolled-up plea” – that is, a plea combining justification and fair comment in regard to the same defamatory statement – is objectionable. A defendant wishing to put forward alternative defences must state which allegations are said to be true and which are said to be fair. Davies v Lombard 1966 (1) SA 585 (W) at 588 Malice: Even if the defendant shows circumstances that provide a justification for the statement, such defence will fail if it is proved that the defendant nevertheless intended to injure the plaintiff’s reputation. The presence of “malice” or “express malice” may, therefore, be relevant in this regard. May v Udwin 1981 (1) SA 1 (A) at 18–19 Joubert v Venter 1985 (1) SA 654 (A) [Page 143] The protection afforded by the defence of fair comment will be forfeited if the publisher of the words acted with malice or an improper motive. Crawford v Albu 1917 AD 102 The plaintiff bears the onus in this regard. Cf Joubert v Venter 1985 (1) SA 654 (A) PRECEDENTS Claim – alleging secondary meaning 1. Defendant denies that he stated to the members of the welfare society that plaintiff stole R10 000,00 from the society. 2. In the alternative, and if it is found that defendant did make the statement alleged, or a similar statement, defendant denies that the words used were understood as alleged and pleads that they were intended to mean and were understood by the members to whom they were published as meaning that plaintiff had acted improperly in failing to pay to the society the loan of R10 000,00 in accordance with his undertaking. 3. Defendant further pleads that the meaning alleged in paragraph 2 of this plea was true and the publication was for the public benefit. Plea – of justification Defendant denies that the statement was made wrongfully or with the intention to injure plaintiff’s reputation because: (a) the statement was in essence true; (b) the publication of the statement to [name] was in the public interest; or
(c) the statement was made by defendant in his capacity as magistrate in the course of a judgment and the statement was germane to the issue in the case; or (a)
the statement was not a statement of fact but a comment concerning a matter of public interest, namely the finances of a public body;
(b) the comment was fair in the circumstances; (c) the facts on which the comment was based were true. Plea – public media privilege The defendant pleads that the publication of the articles was not wrongful or animo iniuriandi, more particularly: (a) the defendants were unaware of the falsity of any averment in any of the articles; (b) the defendants did not publish any of the articles recklessly – ie, not caring whether the content of such articles were true or false. The facts upon which the defendants will rely in this context are [detail]; (c)
the defendants were not negligent in publishing any of the articles. The facts upon which the defendants will rely in this context are [detail];
(d) in view of the facts alleged, the publications were objectively reasonable; (e) the articles were consequently published without animus injuriandi. [See National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA).] Replication – to plea 1. It is admitted that the statement was made by defendant in his capacity as magistrate in the course of his judgment. 2. It is denied that the statement was germane to any issue in the case because the issue was one of prescription and plaintiff’s character was irrelevant in deciding the issue. [Page 144] 3. It is denied that defendant did act lawfully or without the alleged intent and plaintiff alleges that defendant made the statement maliciously having special regard to a dispute concerning [detail] between plaintiff and defendant which dispute has no bearing on the matter heard by defendant. Pleadings/Amlers Precedents of Pleadings/D/Delict Delict See : DAMAGES: DELICTUAL, INIURIA, LEX AQUILIA Pleadings/Amlers Precedents of Pleadings/D/Deposit Deposit Related subjects: EXEMPTION CLAUSES The depositor’s claim: A depositor’s claim against the depository can be either for the return of the thing deposited or for its value. The depositor must allege and prove: (a) the contract of deposit; (b) delivery of the thing to the depository; (c) the value of the thing (if this is claimed in the alternative or otherwise).
Non-return must be alleged but need not be proved. Cf Pillay v Krishna 1946 AD 946 If the thing was returned in a damaged condition, that fact and the amount of damages claimed must be alleged and proved. Ownership of the goods is not an element of the claim. Joubert Street Investments (Pty) Ltd v Roberts 1943 TPD 141 If no contractual relationship existed between the parties, the abovementioned rules do not apply and the cause of action will have to be the actio legis Aquiliae. United Building Society v DI Stone (Pty) Ltd 1988 (4) SA 795 (E) at 800 The depository’s defences: In defence, a depository may: (a) (b)
allege and prove the return of the thing; allege and prove that the thing was destroyed and damaged; and (i) in the case of a gratuitous deposit, the absence of gross negligence; or Transitional Local Council of Randfontein v ABSA Bank [2000] 2 All SA 134 (W); 2000 (2) SA 1040 (W) (ii) in the case of a deposit for remuneration, that the destruction or damage occurred without fault; Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) Padiachy v Motor Mecca JHB CC 2002 (4) SA 351 (W)
(c) allege an exemption or “owner’s risk” clause. First National Bank of SA Ltd v Rosenblum [2001] 4 All SA 355 (A); 2001 (4) SA 189 (SCA) [Page 145] In the case of a dispute as to the existence of such a clause as part of the contract of deposit, it will be for the depositor to replicate and to prove that the clause was not a term of the contract. Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) Van Deventer v Louw 1980 (4) SA 105 (O) Yeats v Hoofwegmotors 1990 (4) SA 289 (NC) Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers [2001] 2 All SA 646 (NC); 2001 (3) SA 110 (NC) If the claim is in delict and the defendant wishes to rely on the exemption clause, the position is different in that it will then be for the defendant to allege and prove the exemption clause. Durban’s Water Wonderland (Pty) Ltd v Botha [1999] 1 All SA 411 (A); 1999 (1) SA 982 (SCA) The scope of protection given by such a clause is a matter of interpretation. Van Deventer v Louw 1980 (4) SA 105 (O) The depositor may plead that the clause does not protect the depository because, for example, of fraud; Essa v Divaris 1947 (1) SA 753 (A) King’s Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N) (d)
allege and prove an amendment to the agreement by the insertion of an “owner’s risk” clause. WJ Lineveldt (Edms) Bpk v Immelman 1980 (2) SA 964 (O)
Gross negligence: The term is not capable of precise definition. It is something less than a conscious risk-taking but must involve a departure from the standard of the reasonable man such that it can be categorised as extreme. Transnet Ltd t/a Portnet v The Owners of the MV ‘Stella Tingas’ [2003] 1 All SA 286 (SCA) at par 7 PRECEDENTS Claim – for return of article deposited 1. On [date] at [place] and by virtue of an oral agreement between the parties, plaintiff deposited with defendant a motor vehicle [registration number] to be kept by defendant pending plaintiff’s return from abroad. 2. The value of plaintiff ’s vehicle at the time of deposit was [amount]. 3. Upon plaintiff’s return, defendant was unable to return the vehicle to plaintiff. WHEREFORE plaintiff claims:
Return of motor vehicle [registration number]; alternatively, payment of the sum of [amount] [being the value of the vehicle]. Plea – owner’s risk Defendant admits the agreement as alleged, but pleads that, in addition, the parties agreed that the vehicle would be stored by defendant entirely at the owner’s risk. Plea – absence of negligence Plaintiff’s motor vehicle was stolen by a person unknown to defendant and without negligence on defendant’s part. [Particularise steps taken to protect object.] [Page 146] Pleadings/Amlers Precedents of Pleadings/D/Designs Designs Related subjects:
COPYRIGHT UNFAIR COMPETITION
Statute: The Designs Act 57 of 1967 Repealed Act Act 57 of 1967 has been repealed by s 55 of Act 195 of 1993 dealing with the registration and protection of designs was replaced by the Designs Act 195 of 1993. Provision is now made for two categories of designs, namely aesthetic designs and functional designs. An aesthetic design under the 1993 Act is defined in terms similar to those used to define “design” in the 1967 Act, namely as “any design applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or for any two or more of such purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof.” Robinson v D Cooper Corp of SA (Pty) Ltd 1984 (3) SA 699 (A) A functional design means “any design applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or for any two or more of such purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied, is to perform, and includes an integrated circuit topography, a mask work and a series of mask works.” Design rights and copyright: Designs are usually artistic works and are protected by the provisions of the Copyright Act 98 of 1978. There is, however, a limitation in the Copyright Act concerning the protection of artistic works of which works three-dimensional reproductions have been made available to the public, if such authorised reproductions primarily have a utilitarian purpose and are made by an industrial process. Copyright Act 98 of 1978 s 15A Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd [2002] 4 All SA 67 (SCA); 2003 (1) SA 31 (SCA) Apart from this, the advantage of a registered design is that it gives, not unlike a patent, a monopoly: it is not necessary to allege or prove copying or knowledge of the registered design. Infringement is established by the objective similarity between the allegedly infringing object and the registered design. Unless protected by registration, a design has very little common-law protection. Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134 (A); 1997 (1) SA 416 (SCA) Jurisdiction: Infringement of a registered design is justiciable according to the principles applicable to delictual claims. The plaintiff: The plaintiff would be the person registered as the proprietor of the design. Designs Act 195 of 1993 ss 20 and 35(1) Infringement: A registered design is infringed by the making, importing, using or disposing of any article included in the class in which the design is registered, embodying the registered design or a design not substantially different from the registered design. Designs Act 195 of 1993 s 20(1) Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd 1984 (3) SA 681 (A) [Page 147] Defences: The Act provides for special defences in the case of design in the form of an integrated circuit topography. Designs Act 195 of 1993 s 20(3) Onus: There is a presumption that a registered design is valid. It follows that the plaintiff must prove the infringement, and the defendant the invalidity of the design.
The design: The plaintiff must allege and prove that the design registration was granted (not merely applied for) and that the registration is in existence. The plaintiff can, in this regard, utilise a certificate from the registrar. Designs Act 195 of 1993 ss 39 and 40 Relief: The relief to which a plaintiff is entitled is an interdict, surrender of infringing products and damages (or, in lieu of damages, at the option of the plaintiff, an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee or sub-licensee in respect of the registered design concerned). Designs Act 195 of 1993 s 35(3) Cf Morris v Benson and Hedges 2000 (3) SA 1092 (W) The measure of damages is delictual and the onus rests on the plaintiff to prove the damages suffered. Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd 1978 (3) SA 465 (A) Invalidity: A defendant may rely on the invalidity of the registration with or without counterclaiming for revocation of the registration. Designs Act 195 of 1993 s 35(5) The onus rests on the defendant who will have to allege and prove the particular statutory ground of invalidity relied upon. Designs Act 195 of 1993 s 31 Registrar: In spite of Brudd Lines (Pty) Ltd v Badsey (1) 1973 (3) SA 972 (T), it is submitted that it is not necessary to join the Registrar of Designs if the validity of the design registration is attacked in infringement proceedings. The Registrar was, for instance, not joined in Schultz v Butt 1986 (3) SA 667 (A). Cf Designs Act 195 of 1993 s 31(2) PRECEDENTS Claim – infringement of design 1. Plaintiff is the registered proprietor of the registered design number [xx] in class [25] in respect of a [metal frame of a trap door]. 2. The design has, at all material times, been valid and subsisting. A copy of the design registration is annexed hereto in Annexure “A”. 3. From a date unknown to plaintiff, defendant has been manufacturing [metal frames for trap doors] the shape and configuration of which is depicted in Annexure “B” hereto. 4. Defendant’s said [metal frames] embody the registered design; alternatively, embody a design not different from the registered design. 5. As a result of defendant’s foregoing infringement, plaintiff has suffered damages in the sum of [amount]. 6. Plaintiff apprehends upon reasonable grounds that defendant will not desist with its aforesaid infringement unless restrained by an order of court. A reasonable royalty rate in the class concerned is 10% of a licensee’s net sale price.
7.
[Page 148] WHEREFORE plaintiff claims: (a) (b) (b)
An interdict restraining defendant from infringing registered design [number]. Surrender of any infringing products in the possession of the defendant or under its control. Payment of [amount] being damages; alternatively, payment of a reasonable royalty at the rate of 10% of the defendant’s net sale price. [Based on the facts in Robinson v D Cooper Corp of SA (Pty) Ltd 1984 (3) SA 699 (A).]
Plea – invalidity of aesthetic design Defendant denies that the said design, registered as an aesthetic design, is valid on one or more of the following grounds: 1. The design is not capable of registration under section 14(1) and (5) of the Designs Act 195 of 1993 in that:
(a) the features of the [metal frame] do not appeal to and are not judged solely by the eye; (b) the features are dictated solely by the function which the article is to perform; (c) the article represents a method or principle of construction. 2. The design was not new or original in that it is not different from the state of the art on or before the application date because [detail]. Plea – invalidity of functional design Defendant denies that the said design, registered as a functional design, is valid on one or more of the following grounds: 1. The design is not capable of registration under section 14(6) of the Designs Act 195 of 1993 in that it is in the nature of a spare part for a vehicle. The design was neither new nor not commonplace in the art in question [detail].
2.
Pleadings/Amlers Precedents of Pleadings/D/Divorce Divorce A degree of laxity, as far as divorce pleadings are concerned, is fairly common. For instance, it is not customary to support a claim for custody of the children by any factual averments that support the implied conclusion that the interests of the children require that custody be awarded to, say, the plaintiff. The marriage: The plaintiff must allege and prove a valid and existing marriage. The best evidence of the conclusion of a marriage is a marriage certificate issued by the relevant authorities. Jurisdiction: A divorce action may be instituted in a high court or in a divorce court established under section 10 of the Administration Amendment Act 9 of 1929. No other court has jurisdiction in divorce matters. The plaintiff must allege and prove that the court has jurisdiction by virtue of one or other of the following grounds of domicile or residence. Jurisdiction – domicile: The parties to the action (or any one of them) must have been domiciled in the area of jurisdiction of the court on the date on which the action was instituted. Divorce Act 70 of 1979 s 2(1)(a) The domicile may be either a domicile of origin, a domicile of choice or one of proximity. Eilon v Eilon 1965 (1) SA 703 (A) Grindal v Grindal 1997 (4) SA 137 (C) Domicile Act 3 of 1992 ss 1 and 2 [Page 149] Jurisdiction – residence: The parties (or any one of them) must have been ordinarily resident in the area of jurisdiction of that court on the date on which the action is instituted and must have been ordinarily resident in the Republic for a period of one year immediately prior to that date. Divorce Act 70 of 1979 s 2(1)(b) Jurisdiction – counterclaim: A court which has jurisdiction in relation to a claim also has jurisdiction in respect of a claim in reconvention or a counter-application in the divorce action concerned. Divorce Act 70 of 1979 s 2(2) Jurisdiction – other issues: The Divorce Act does not confer jurisdiction other than in divorce proceedings and matters incidental thereto. For instance, it does not confer jurisdiction in commercial disputes between the parties that do not arise from the marriage relationship itself. For example, a court is not entitled to adjudicate on an alleged partnership contract between spouses married out of community of property where the defendant husband is no longer resident in South Africa. Rousalis v Rousalis 1980 (3) SA 446 (C) Marital regime: The marital regime is determined by the lex domicilii at the time of the marriage. Sperling v Sperling 1975 (3) SA 707 (A) For the purposes of this note, it is assumed that the lex domicilii is South African law. Children: The plaintiff must allege whether there are dependent and minor children. It is proper to make allegations in regard to the welfare of these children since a decree of divorce cannot be granted until the court is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are
satisfactory or are the best that can be effected in the circumstances. Also, a decree of divorce cannot be granted, if an enquiry was instituted by the Family Advocate, until the court has considered the report and recommendations. Divorce Act 70 of 1979 s 6(1) A party wishing to claim sole guardianship ought to make allegations supporting this claim. Divorce Act 70 of 1979 s 6(3) It is not customary to make allegations in the body of the particulars of claim relating to the amount of maintenance required. Maintenance is claimed without any antecedent. Family advocate: There must be compliance with the regulations promulgated in terms of the Mediation in Certain Divorce Matters Act 24 of 1987. The regulations were published under Government Notice R2385 in Government Gazette 12781 of 3 October 1990 and have been amended. The court may nevertheless condone any non-compliance. Divorce Act 70 of 1979 s 5A Grounds of divorce: The plaintiff must allege and prove the grounds on which a decree of divorce may be granted. Where time, date and place or any other person’s identity is relevant or involved, details thereof must be given in the relevant pleading. Uniform rule 18(8) [Page 150] Ground of divorce – irretrievable breakdown: A plaintiff who wishes to rely on this ground of divorce must allege and prove facts to satisfy the court that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. Divorce Act 70 of 1979 s 4(1) The court may accept, as proof of the irretrievable breakdown of the marriage, evidence that: (i) the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the institution of the divorce action; (ii) the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship; or (iii) the defendant has, in terms of a sentence of court, been declared an habitual criminal and is undergoing imprisonment as a result of such sentence. Divorce Act 70 of 1979 s 4(2) This provision has little, if any, practical value or effect. Ground of divorce – mental illness: A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied that the defendant in terms of the Mental Health Act 18 of 1973: has been admitted as a patient to an institution in terms of a reception order;
(i)
(ii) is being detained as a State patient at an institution or other place specified by the Minister of Correctional Services; or (iii) is being detained as a mentally ill convicted prisoner at an institution, and that the defendant has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, State patient or mentally ill prisoner. The plaintiff must also allege and prove that there is no reasonable prospect that the defendant will be cured of the mental illness. For this, the evidence of two psychiatrists is required, one of whom is appointed by the court. Their evidence is usually given, with the prior leave of the court, by way of affidavit. Before the institution of the action on this ground, an application for the appointment of a curator ad litem and for the appointment by the court of a psychiatrist ought to be made. Divorce Act 70 of 1979 s 5(1) and (3) Ground of divorce – Unconsciousness: The plaintiff must allege and prove the following facts: that, by reason of a physical disorder, the defendant is in a state of continuous unconsciousness;
(i) (ii) (iii)
that the defendant’s unconsciousness has lasted for a continuous period of at least 6 months prior to the institution of the divorce action; and (iv) that there is no reasonable prospect that the defendant will regain consciousness. Divorce Act 70 of 1979 s 5(2) [Page 151] Once again, it is advisable to apply, before institution of the action, for the appointment of a curator ad litem and for the appointment of a neurologist or neurosurgeon. Maintenance for spouse: A claim for payment of maintenance to one spouse normally has no antecedent in the body of the particulars of claim. The factors relevant in determining whether maintenance should be ordered and what the amount should be are: the existing or prospective means of each of the parties; their respective earning capacities, financial needs and obligations; the age of each of the parties; the duration of the marriage; the standard of living of the parties prior to the divorce; their conduct in so far as it may be relevant to the break-down of the marriage; the terms of the redistribution order; and any other factor which, in the opinion of the court, should be taken into account. Divorce Act 70 of 1979 s 7(2) A lump sum of maintenance may be awarded instead of periodic payments. Zwiegelaar v Zwiegelaar [2001] 1 All SA 261 (A); 2001 (1) SA 1208 (SCA) Settlement agreements: If a settlement is reached between the parties prior to the institution of the action, it is proper to allege the conclusion of that agreement and to attach a copy thereof to the particulars of claim. It is usually incorporated in the decree of divorce and forms part of the order. Tshetlo v Tshetlo [2000] 4 All SA 375 (W); 2000 (4) SA 673 (W) Lebeloane v Lebeloane [2000] 4 All SA 525 (W); 2001 (1) SA 1079 (W) Proprietary claims: (a) Division of the joint estate is claimed without any allegations relating to the fact that the parties do, in fact, have joint assets. Evidence is normally led in this regard. In view of the fact that a division of the joint estate is a natural consequence of a divorce if a marriage is in community of property, the prayer may be superfluous. (b) Specific performance of any outstanding obligation created by an antenuptial contract claimed, must be based on allegations relating to the terms of the contract and the defendant’s failure to comply with them. (c)
Redistribution of assets can be claimed. Divorce Act 70 of 1979 s 7(3) to (6) It will be necessary for a plaintiff to make allegations that support such a redistribution of assets. As to the approach of a court in such cases, see: Beaumont v Beaumont 1987 (1) SA 967 (A) Kritzinger v Kritzinger 1989 (1) SA 67 (A)
(d) Forfeiture of patrimonial benefits can be claimed. Divorce Act 70 of 1979 s 9 The court will have regard to the duration of the marriage, the circumstances which gave rise to its breakdown and any substantial misconduct on the part of either of the parties. Wijker v Wijker 1993 (4) SA 720 (A) These factors have to be particularised. Matyila v Matyila 1987 (3) SA 230 (W), overruled on other aspects by Wijker v Wijker 1993 (4) SA 720 (A) [Page 152] The claim is not competent if the divorce is granted on the grounds of mental illness or continuous unconsciousness of the defendant. See also: Matrimonial Property Act 88 of 1984 ss 9 and 10 (e)
(f)
A division of any accrual, if applicable, may be claimed. Divorce Act 70 of 1979 s 3 and 8 Reeder v Softline [2000] 4 All SA 105 (W); 2001 (2) SA 844 (W) A claim to pension benefits may be claimed. Divorce Act 70 of 1979 s 7(7) and (8)
Ex Parte Randles: In re King v King [1998] 2 All SA 412 (D) (g)
The dissolution of a universal partnership between a husband and wife not married in community of property may also be claimed. The plaintiff must allege and prove the existence of the partnership agreement. The ordinary rules relating to partnerships and the conclusion of tacit contracts apply. Mühlmann v Mühlmann 1984 (1) SA 97 (A)
The right of recourse between spouses in respect of moneys expended for household necessaries is, because of section 23 of the Matrimonial Property Act, no longer of any practical consequence. Particulars: A party claiming division, transfer or forfeiture of assets in respect of a marriage out of community of property is obliged to give details of the grounds on which the claim to the division, transfer or forfeiture is based. Uniform rule 18(9) Religious constraints: If it appears to a court in divorce proceedings that, despite the decree of divorce, the spouses, or either one of them, will, by reason of the prescripts of their religion, or of the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed, the court may refuse to grant a decree of divorce unless the court is satisfied that the spouse within whose power it is to have the marriage so dissolved or the said barrier so removed, has taken all the necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed, or the court may make any other order that it finds just. Divorce Act 70 of 1979 s 5A by s 1 of Act 95 of 1996 Amar v Amar [1999] 2 All SA 376 (W); 1999 (3) SA 604 (W) PRECEDENTS Claim – for divorce of marriage in community of property 1. The plaintiff is [full names], a [sex] [occupation] residing at [address]. 2. The defendant is [full names], a [sex] [occupation] residing at [address]. 3. The parties were married to each other on [date] at [place] in community of property and that marriage still subsists. The parties are domiciled within the area of jurisdiction of this honourable court.
4. 5.
(a)
From the marriage between the parties, [number] children were born. [Give, preferably, their names and dates of birth.] They are still minors and are presently in plaintiff’s [defendant’s] care. [Page 153] (b) It would be in the best interests of the children if plaintiff [defendant] were awarded custody of the children. (c)
The report of the Family Advocate is annexed.
6. The marriage relationship between the parties has broken down irretrievably and there is no reasonable prospect of the restoration of a normal marriage relationship between them for the following reasons: (a) defendant has assaulted plaintiff repeatedly; (b) defendant committed adultery with [name] on [date] at [place] and the plaintiff is not prepared to condone or accept it; (c)
the parties have not lived together as husband and wife for a period of more than one year.
WHEREFORE plaintiff claims: (a) A decree of divorce. (b) Custody of the minor children born of the marriage to be awarded to the plaintiff [the defendant].
(c) Maintenance for the children in the amount of [Rx] per month per child [if applicable]. (d) Maintenance for plaintiff in the amount of [Ry] per month [if applicable]. (e) A division of the joint estate [an order that defendant forfeits the benefits from the marriage in community of property]. (f)
Costs of suit.
Divorce – alternatives 1. The plaintiff is [full names], a [sex] [occupation] residing at [address]. See : CITATIONS for detail. The defendant is [full names], a [sex] [occupation] residing at [address] See : CITATIONS for detail.
2.
3. Alternatives relating to the nature of the marriage Post-nuptial contract The parties were married to each other on [date] at [place] in community of property but, in terms of section 21 of Act 88 of 1984, the parties entered into a notarial contract in terms of which the marriage was deemed from its inception [from the date of the contract] to be out of community of property and subject to the accrual system. The marriage still subsists. Out of community The parties were married to each other on [date] at [place] out of community of property and the marriage still subsists. Out of community plus accrual system The parties were married to each other on [date] at [place] out of community of property and subject to the accrual system as defined in Act 88 of 1984, and the marriage still subsists. Alternatives relating to jurisdiction
4.
One party’s domicile The plaintiff [the defendant] is domiciled within the area of jurisdiction of this honourable court. One party’s residence The plaintiff [the defendant] is ordinarily resident in the area of jurisdiction of this honourable court and has been ordinarily resident in the Republic of South Africa for a period of more than one year prior to the institution of this action. 5.
(a)
From the marriage between the parties, [number] children were born. [Give, preferably, their names and dates of birth.] They are still minors and are presently in plaintiff’s [defendant’s] care. [Page 154] (b) It would be in the best interests of the children if plaintiff [defendant] were awarded custody of the children. (c)
The report of the Family Advocate is annexed.
6. The marriage relationship between the parties has broken down irretrievably and there is no reasonable prospect of the restoration of a normal marriage relationship between them for the following reasons: [set out reasons] Mental illness as grounds for divorce (a)
Defendant has, in terms of a reception order dated [date] issued in terms of Act 18 of 1973, been admitted to an institution, to wit [name]. A copy of the order is annexed hereto. [or: Defendant has been detained as a President’s patient since [date] in an institution, to wit [name], in terms of an order of court dated [date].] [or: Defendant is being detained as a mentally ill convicted prisoner [detail].] (b)
Defendant has, for a continuous period of [at least two years] immediately prior to the institution of this action, not been discharged unconditionally.
(c) Defendant is mentally ill and there is no prospect that he will be cured of his mental illness. Unconsciousness as grounds for divorce (a)
The defendant is in a state of continuous unconsciousness by reason of a physical disorder [state ground].
(b) The defendant’s unconsciousness has lasted for a continuous period of [at least six months] prior to the institution of the divorce action. (c)
There is no reasonable prospect that the defendant will regain consciousness.
WHEREFORE plaintiff claims: (a) A decree of divorce. (b) Custody of the minor children born of the marriage. (c) Maintenance for the children in the amount of [Rx] per month per child [if applicable]. (d) Maintenance for plaintiff in the amount of [Ry] per month [if applicable]. (e) Costs of suit. Claim – divorce and specific performance of the provisions of the antenuptial The plaintiff is [full names], a [sex] [occupation] residing at [address]. See : CITATIONS for detail.
1.
2. The defendant is [full names], a [sex] [occupation] residing at [address] See : CITATIONS for detail. 3. The parties were married to each other on [date] at [place] out of community of property and the marriage still subsists. 4. (Jurisdiction applicable as set out above.) 5. (a)
From the marriage between the parties, [number] children were born. [Give, preferably, their names and dates of birth.] They are still minors and are presently in plaintiff’s [defendant’s] care.
(b) It would be in the best interests of the children if plaintiff [defendant] were awarded custody of the children. (c)
The report of the Family Advocate is annexed.
6. The marriage relationship between the parties has broken down irretrievably and there is no reasonable prospect of the restoration of a normal marriage relationship between them for the following reasons: [set out reasons]
7. (a)
In terms of the antenuptial contract entered into between the parties, defendant undertook to donate to plaintiff as her sole and exclusive property [specify].
(b) A copy of the contract is annexed. (c) Defendant has failed to comply with this undertaking. [Page 155] WHEREFORE plaintiff claims: (a) A decree of divorce. (b) Custody of the minor children born of the marriage. (c) Maintenance for the children in the amount of [Rx] per month per child [if applicable]. (d) Maintenance for plaintiff in the amount of [Ry] per month [if applicable]. (e) An order that defendant comply with the antenuptial contract by [specify]. (f) Costs of suit. Claim for redistribution – alternative to par 7 (a)
In terms of the antenuptial contract entered into between the parties, the community of property, community of profit and loss and accrual sharing were excluded.
(b) No agreement exists between the parties in respect of the division of their assets. (c) During the marriage, plaintiff contributed directly and indirectly to the maintenance and increase of the estate of defendant by rendering the following services: [detail]; and by saving expenses that would otherwise have been incurred: [detail]. (d) As a result of the foregoing, it would be just and equitable if [40%] of defendant’s assets be transferred to plaintiff. Alternative to prayer (e) An order that [40%] of the assets of defendant be transferred to plaintiff. Claim – where issues settled – add additional paragraph The parties have entered into an agreement relating to the custody and control of the minor children, payment of maintenance and the division of the assets. A copy of the agreement is annexed hereto. Alternative prayer WHEREFORE plaintiff claims a decree of divorce incorporating the provisions of the agreement annexed hereto. Pleadings/Amlers Precedents of Pleadings/D/Donation Donation A true donation is an agreement whereby the donor, motivated by pure liberality, undertakes to give to a donee a gift without receiving, having received or expecting to receive any advantage in return for it. Remuneratory and reciprocal donations may have the appearance of donations but are not true donations: They are not inspired solely by a disinterested benevolence and are, therefore, akin to an exchange or discharge of a moral obligation. Avis v Verseput 1943 AD 331 Kay v Kay 1961 (4) SA 257 (A)
The onus is on the party alleging a donation to prove that the motive of the donor to the agreement was one of pure liberality. Avis v Verseput 1943 AD 331 De Jager v Grunder 1964 (1) SA 446 (A) (Whether the onus is a true onus or merely an evidentiary one or a rule of logic was debated in three judgments of the full court in Barkhuizen v Forbes 1998 (1) SA 140 (E).) Formalities: An executory donation is an agreement to give something in the future and an executed donation is one which has already been completed. Any executory donation must be in writing and the deed of donation must be signed by the donor or by a person acting on the donor’s written authority, [Page 156] which authority was granted by the donor in the presence of two witnesses. These formalities do not apply to an executed donation or to a remuneratory or reciprocal donation. General Law Amendment Act 50 of 1956 s 5 A donation of “land” as defined in the Alienation of Land Act 68 of 1981 must also comply with the formalities laid down in the Act. See : ALIENATION OF LAND Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N) Revocation: A donation may be revoked because of gross ingratitude or where the donation was subject to a modus and the donee has breached the modus. Benoni Town Council v Minister of Agricultural Credit & Land Tenure 1978 (1) SA 978 (T) (Further, as to modus and an exception based thereon, see Coertzen v Gerard NO 1997 (2) SA 836 (O).) Spouses: Donations between spouses are no longer prohibited. Matrimonial Property Act 88 of 1984 s 22 Rens v Gutman NO [2002] 4 All SA 30 (C) The innocent spouse may recover a donation which was made by one spouse married in community of property without the consent of the other. Matrimonial Property Act 88 of 1984 s 15 Bopape v Moloto [1999] 4 All SA 277 (T); 2000 (1) SA 383 (T) Donatio mortis causa : A donatio mortis causa is a donation made in contemplation of death. It has to be executed with the same formalities as a testamentary disposition. Jordaan v De Villiers 1991 (4) SA 396 (C) It is revocable by the donor during his or her lifetime. There is a presumption that a gift was made inter vivos and not mortis causa. Keeve v Keeve NO 1952 (1) SA 619 (O) PRECEDENTS Claim – for delivery 1. On [date] at [place], defendant signed a deed of donation in terms of which he donated to plaintiff the following items, namely [specify]. A copy of the deed is attached hereto and marked “A”. 2. Plaintiff orally accepted the donation on [date] at [place]. 3. Despite demand, defendant has refused to deliver the said items to plaintiff. Claim – for delivery where donation revoked 1. On [date] at [place] and in terms of a written deed of donation signed by him, plaintiff donated to defendant a certain immovable property situate at [location]. A copy of the deed is attached hereto and marked “A”. 2. The property was duly transferred to defendant on the [date]. 3. Defendant has been guilty of gross ingratitude towards plaintiff in that he: [detail]; or (a) It was a term of the deed of donation that defendant would apply the rent received in respect of the property to the maintenance and education of one [X]. (b)
[Page 157]
Defendant has failed to apply the rent or any portion thereof to the maintenance and education of the said [X].
4. In the premises, plaintiff was entitled to revoke the donation and did so on [date]. 5. Despite the aforesaid revocation, defendant has failed or refused to return the immovable property to defendant. WHEREFORE plaintiff claims: (a) An order confirming the revocation of the donation. (b) An order directing defendant to retransfer the property into plaintiff’s name. Pleadings/Amlers Precedents of Pleadings/D/Duress Duress Related subject: CONDICTIO INDEBITI General: A contract concluded as a result of duress can be voided. The party wishing to rely on duress must allege and prove: (a) a threat of considerable evil to the person concerned or to her or his family which threat induced a fear; (b) that the fear was reasonable; (c) that the threat was of an imminent or inevitable evil; (d) that the threat or intimidation was unlawful or contra bonos mores; (e) that the contract was concluded as a result of the duress. Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 306 Savvides v Savvides 1986 (2) SA 325 (T) at 330 BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) at par 36 Duress by third parties: A party relying on duress exerted by a party other than a party to the contract must allege and prove that the other party to the contract knew of the duress or procured the act through the agency of the party who exercised the duress. Malilang v MV Houda Pearl 1986 (2) SA 714 (A) at 731 Contra bonos mores : The question of whether a jural act concluded under the threat of criminal prosecution is voidable on the ground that the duress is contrary to good morals is moot. The correct approach appears to be to enquire whether, in the circumstances of the case, the threat was contrary to good morals. Oos-Transvaalse Koöperasie Bpk v Heyns 1986 (4) SA 1059 (O) BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) at par 52 Economic duress: The English-law doctrine of economic duress does not appear to form part of our law except in the context of admiralty law. Van den Berg & Kie Rekenkundige Beamptes v Boomprops 1028 BK 1999 (1) SA 780 (T) Malilang v MV Houda Pearl 1986 (2) SA 714 (A) Duress of goods: Where improper pressure was exerted through duress of goods – that is, where someone was by an unlawful detention of goods made to pay a sum not due – it will be necessary to allege and prove that such payment was accompanied by an unequivocal protest at the time of payment. Hendricks v Barnett 1975 (1) SA 765 (N) Kapp v TC Valuta (Pty) Ltd 1975 (3) SA 283 (T) Cf Commissioner for Inland Revenue v First National Industrial Bank Ltd 1990 (3) SA 641 (A) [Page 158] PRECEDENTS Claim – for recovery of money On [date], plaintiff arrived at [place] from [place] together with certain luggage and personal effects. No duty was payable in terms of the laws relating to customs and excise in South Africa.
1. 2.
3. Defendant (the Commissioner of Customs and Excise), acting through his duly authorised agents, demanded from plaintiff payment of duty in an amount of [Rx] in respect of the articles set out in the annexure hereto and threatened to confiscate such articles unless the amount was paid. 4. Plaintiff thereupon, in order to release such articles and under protest expressly made to the aforesaid agents, paid the amount to them in the bona fide and reasonable fear that failure to do so would result in the confiscation of the articles. 5. In the premises, plaintiff is entitled to a refund of the amount paid of [amount]. Claim – for voidness due to duress 1. Defendant admits that he gave the undertaking to plaintiff as alleged by plaintiff but pleads that, by virtue of the facts hereinafter set forth, he is not liable thereunder. 2. At the time of giving the undertaking, plaintiff was in possession of defendant’s motor vehicle by virtue of an agreement of hire between the parties, and plaintiff unlawfully threatened that, in the event of defendant’s refusing to give the aforesaid undertaking, plaintiff would destroy defendant’s motor vehicle. 3. Defendant, in the reasonable and bona fide belief that plaintiff would, in fact, carry out his threat and for the purpose of recovering possession of his motor vehicle in an undamaged condition, gave the undertaking under protest expressly made to plaintiff at the time. 4. But for the said threat, defendant would not have given the undertaking. 5. The undertaking is, therefore, void. Pleadings/Amlers Precedents of Pleadings/E/Electricity Electricity Related subject: VELD FIRES General: In any civil proceedings against an “undertaker” (as defined) arising out of damage or injury caused by induction or electrolysis or in any other manner by means of electricity generated or transmitted by or leaking from the plant or machinery of any undertaker (that is, the seller of electricity), such damage or injury is presumed to have been caused by the negligence of the undertaker, unless the contrary is proved. Electricity Act 41 of 1987 s 26 Grootboom v Graaff-Reinet Municipality 2001 (3) SA 373 (E) The effect of the provision appears to be that negligence is part and parcel of the plaintiff’s cause of action and that it must still be alleged and particularised. Cf Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C) at 295A The defendant must allege and prove the absence of negligence. Cf HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd [2000] 4 All SA 545 (A); 2001 (4) SA 814 (SCA) The repealed Electricity Act 40 of 1958 Repealed Act Act 40 of 1958 has been repealed by s 31 of Act 41 of 1987 made provision for strict liability, and cases thereunder must be read in that light. Cf Dlakela v Transkei Electricity Supply Commission [1997] 3 All SA 301 (Tk); 1997 (4) SA 523 (Tk) [Page 159] PRECEDENTS Claim – for damages caused by shock Defendant is an undertaker in terms of the provisions of the Electricity Act 41 of 1987. Defendant is the owner of an electrical power line that traverses plaintiff’s property [describe].
1. 2.
3. On [date], a giraffe belonging to plaintiff came into contact with the power line and was electrocuted and killed. 4. The value of the giraffe was [amount]. 5. Plaintiff accordingly suffered damages to the sum of [amount] caused by electricity transmitted by defendant. 6. The said damage was caused by the negligence of the defendant, who, by reason of its ownership and control of the said electrical installation, was under a duty to the public in general and to the plaintiff in particular to ensure that those parts of the installation which posed a danger were situated at a safe height above the ground. Pleadings/Amlers Precedents of Pleadings/E/Employment Contracts Employment Contracts Related subject:
VICARIOUS LIABILITY
General: Most employment contracts are regulated by statute and industrial agreements. See : Labour Relations Act 66 of 1995 Some statutes extend or limit the rights of the parties to such an agreement. Basic Conditions of Employment Act 75 of 1997 Agricultural Labour Act 147 of 1993 Employment Equity Act 55 of 1998 Jurisdiction: Subject to the Constitution and the jurisdiction of the Labour Appeal Court, the Labour Court has exclusive jurisdiction in respect of all matters in terms of the Basic Conditions of Employment Act, and the Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract. Basic Conditions of Employment Act 75 of 1997 s 77 Issues flowing from the Labour Relations Act also fall under the exclusive jurisdiction of the Labour Court. Implied terms: A basic condition of employment constitutes a term of any contract of employment, except to the extent that: (a) (b)
any other law provides a term that is more favourable to the employee; the basic condition of employment has been replaced, varied, or excluded in accordance with the provisions of the Act; or
(c) a term of the contract of employment is more favourable to the employee than the basic condition of employment. Basic Conditions of Employment Act 75 of 1997 s 4 Claim for wages: An employee claiming payment of arrear wages must allege the contract with the employer and its pertinent terms. Prins v Universiteit van Pretoria 1980 (2) SA 171 (T) [Page 160] The employee must allege non-payment of the wages claimed, and it is for the employer to allege and prove payment. See : PAYMENT Employees need not allege that they did, in fact, supply or tender their services during the relevant period. If the failure to do so is raised by the employer in the plea, the employees will have to prove that they did so supply or tender their services. Prins v Universiteit van Pretoria 1980 (2) SA 171 (T) Dismissal and repudiation: The repudiation of an employment contract by an employer usually takes the form of a wrongful dismissal. Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) Every employee has the right not to be: (a) unfairly dismissed; or (b) subjected to unfair labour practice.
Labour Relations Act 66 of 1995 s 185 It follows from this that every disputed dismissal has to de dealt with through the machinery prescribed by this Act. Termination of employment: A contract may be terminated on notice, provided the required period of notice is given or the employer pays the employee the prescribed wages for that period. Basic Conditions of Employment Act 75 of 1997 ss 37 and 38 Onus: It is for the employee to establish the contract of employment and the subsequent dismissal. It is for the employer to allege and prove facts justifying the dismissal – for example, the employee’s act of misconduct. Where the dismissal is based on facts amounting to conduct which justifies dismissal, the employee must, by way of confession and avoidance, allege and prove further facts excusing the misconduct. Masinga v Minister of Justice, KwaZulu Government 1995 (3) SA 214 (A) at 221 Pleadings in Labour Court: The Labour Court has its own rules. It provides for the initiating of “referrals” by means of a statement of claim which, in its substantive part, must have the following information: (a) the names, description and addresses of the parties; (b) a clear and concise statement of the material facts, in chronological order, on which the party relies; (c) a clear and concise statement of the legal issues that arise from the material facts; and (d) the relief sought. Any party on whom the statement of claim is served may file a response, which is in the nature of a plea and which must contain information as as set out in (a) to (d) above. Labour Court r 6 PRECEDENTS Claim – for wages or salary expressly or impliedly agreed upon 1. Plaintiff was employed by defendant to manage defendant’s business at [address], under an oral agreement concluded between the parties on [date] at [place], at an agreed monthly salary of [amount] commencing on [date]. [Page 161] Alternatively: (a)
it was an implied term of the agreement that defendant would pay to plaintiff a fair and reasonable remuneration for the services so performed;
(b) a fair and reasonable remuneration for the services is the amount of [Rx] per month. 2. On [date], defendant terminated plaintiff’s employment by due notice but, despite demand, fails to pay plaintiff’s salary for the month of [specify], namely an amount of [amount]. [Approved in Prins v Universiteit van Pretoria 1980 (2) SA 171 (T). Claim – for wages or salary expressly or impliedly agreed upon [Taken from Perumal v Govender 1997 (3) SA 644 (N).] 1. The plaintiff was employed by the defendant from April 1993 to 14 August 1993 and received a monthly salary of R10 000 together with a motor vehicle allowance of R2 000 for the months April 1993 to July 1993. 2. On or about 14 August 1993, the defendant unlawfully repudiated the said agreement by purporting to terminate it unilaterally. 3. The plaintiff refused and refuses to accept such repudiation. 4. The plaintiff has since 14 August 1993 tendered and hereby tenders to work for the defendant as a medical practitioner as he undertook to do. 5.
The plaintiff demanded payment, as he was entitled to, for the salary of R10 000 plus a motor vehicle allowance of R2 000 in respect of August 1993. 6. Despite demand, the defendant refused to pay to the plaintiff the said sum of R12 000. 7. The plaintiff’s salary of R10 000 and motor vehicle allowance of R2 000 for September 1993 has now fallen due. WHEREFORE, tendering to continue his employment with the defendant as a medical practitioner, the plaintiff claims: (a) (b)
judgment in the sum of R24 000 (in respect of the months August and September 1993); judgment in the sum of R12 000 in respect of each month, in arrears, from October 1993 to date of judgment or February 1994, whichever is the earlier;
(c) costs of suit. Pleadings/Amlers Precedents of Pleadings/E/Encroachment Encroachment A plaintiff who wishes to claim relief consequent to an encroachment onto property must allege and prove: (a) (b)
ownership of the property encroached upon; and that the defendant has erected a structure or building partly on the plaintiff’s property and partly on the adjoining property. Smith v Basson 1979 (1) SA 559 (W)
The plaintiff may then claim for either the removal of the encroachment or for damages suffered as a result of such encroachment. In the latter event, the court may order the plaintiff to transfer the portion encroached upon to the defendant against payment of damages. Meyer v Keiser 1980 (3) SA 504 (D) A defendant faced with a claim for removal may allege and prove that an order of removal would be unjust, in which event the plaintiff may be left to a claim for damages. In such a plea, the material facts on which the allegation of the injustice is based must be set out. Rand Waterraad v Bothma 1997 (3) SA 120 (O) [Page 162] The defendant may not claim a transfer of the property encroached upon against payment of its value. Meyer v Keiser 1980 (3) SA 504 (D) The defendant may also oppose the removal of the encroachment if the plaintiff knowingly allowed that encroachment. The rule that a plaintiff who did not protest, within one year and one day of becoming aware thereof, against the encroachment loses a claim for removal does not appear to form part of our law. Rand Waterraad v Bothma 1997 (3) SA 120 (O) PRECEDENTS Claim – for removal or payment 1. Plaintiff is the owner of stand [specify] situate in the town of [specify]. 2. Defendant built a house on stand [specify] that adjoins plaintiff’s said property. The house encroaches on plaintiff’s property as indicated on the annexed map. The value of the land upon which the encroachment exists is [amount].
3.
WHEREFORE plaintiff claims: An order compelling defendant to remove the encroachment and make good the land upon which it stands; alternatively, an order that defendant take transfer of the land upon which the encroachment exists against payment to plaintiff of the sum of [amount]. Plea
1. Defendant admits the encroachment, but pleads that it would be inequitable to order the removal thereof for the reasons hereinafter set out, namely: [give grounds]. 2. Defendant tenders to pay to plaintiff the sum of [amount] being the value of the land encroached upon against transfer to defendant, at defendant’s cost, of the land concerned. Pleadings/Amlers Precedents of Pleadings/E/Engineers Engineers The legal position of consulting engineers is very similar to that of architects. Reference should be made to ARCHITECTS and the Engineering Profession Act 46 of 2000. Pleadings/Amlers Precedents of Pleadings/E/Enrichment Enrichment See : CONDICTIO INDEBITI NEGOTIORUM GESTIO Pleadings/Amlers Precedents of Pleadings/E/Estate Agents Estate Agents Related subjects: AGENCY ALIENATION OF LAND General: An estate agent who wishes to claim commission must allege and prove: (a) compliance with the provisions of section 26 of the Estate Agency Affairs Act relating to the required fidelity fund certificates and fidelity insurance; Estate Agency Affairs Act 112 of 1976 s 34A Maree v Botha 1992 (3) SA 230 (T) [Page 163] (b) a mandate to find a purchaser or seller. Botha v Smit 1976 (4) SA 885 (A) Baring Eiendomme BK v Roux [2001] 1 All SA 399 (SCA) The mandate is normally given by the seller, but that is not necessarily the case. A mandate may be express or implied. Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C); 2001 (1) SA 313 (C) As a general rule, the mandate does not entitle the agent to conclude a contract on behalf of the principal or to receive moneys on the principal’s behalf; Bird v Sumerville 1961 (3) SA 194 (A) (c) due performance of the mandate. What due performance is depends on the terms of the mandate. Phillips v Aida Real Estate (Pty) Ltd 1975 (3) SA 198 (A) In the absence of special terms, it involves: (i) an introduction by the agent of a purchaser to the seller; Vanarthdoy (Edms) Bpk v Roos 1979 (4) SA 1 (A) (ii) establishing that the purchaser was, when the contract was signed, willing and able to purchase the property. Beckwith v Foundation Investment Co 1961 (4) SA 510 (A) Ronstan Investments (Pty) Ltd v Littlewood [2001] 3 All SA 127 (A); 2001 (3) SA 555 (SCA) This does not apply where commission is claimed from the buyer; Aida Uitenhage CC v Singapi 1992 (4) SA 675 (E) (iii) establishing that a valid contract of sale was concluded; Brayshaw v Schoeman 1960 (1) SA 625 (A)
(iv) establishing that the introduction was the effective cause (causa causans) of the contract; Van Aswegen v De Clercq 1960 (4) SA 875 (A) Van Heerden v Retief 1981 (1) SA 945 (A) Nach Investments (Pty) Ltd v Knight Frank SA (Pty) Ltd [2001] 3 All SA 295 (SCA) (d)
the commission payable. This depends on the terms of the mandate. If nothing was said, the plaintiff may rely on an implied term to the effect that the commission was payable according to the generally accepted tariff. Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C); 2001 (1) SA 313 (C)
The agent may base the claim for commission on a provision in the sale if such provision was a stipulatio alteri and the agent accepted the benefit. Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A) Adenia Eiendomme (Edms) Bpk v LPD Ondernemings BK [1997] 3 All SA 85 (T) See : CONTRACTS FOR THE BENEFIT OF THIRD PARTIES Claim – against Board: A claim may be laid against the Estate Agents Board for pecuniary loss suffered by reason of the theft of trust money by an estate agent, the failure of an estate agent to deposit trust money in a trust account or to keep such money until the estate agent is lawfully entitled to it or instructed to make payment therefrom to any person. Estate Agency Affairs Act 112 of 1976 s 18 Cf Estate Agents Board v Mahadeo 1991 (3) SA 49 (N) [Page 164] In order for a plaintiff to succeed against the Board, it has to prove that the agent concerned was an estate agent within the definition in section 1(a) or 1(c)(ii) of the Estate Agency Affairs Act. Estate Agents Board v Swart [1998] 4 All SA 373 (T); 1999 (1) SA 1097 (T) Every action against the Board in respect of the fund may be brought in the court within whose jurisdiction the cause of action arose. No one has any claim against the Board in this respect, unless: (a)
(b)
the claimant has, within three months after becoming aware of the theft or failure or by the exercise of reasonable care should have become aware of such theft or failure, given notice in writing to the Board of such claim; the claimant has, within six months after a written demand was sent to her or him by the Board, furnished to the Board such proof as the Board may reasonably require.
One cannot, without the permission of the Board, commence any action against the Board, unless and until the claimant has exhausted all relevant rights of action and other legal remedies available against the estate agent in respect of whom the claim arose and against all other persons liable in respect of the loss suffered by the claimant. Estate Agency Affairs Act 112 of 1976 s 19(1) Interest is payable at the Board’s discretion. Estate Agency Affairs Act 112 of 1976 s 19(3) The Board may raise any defence that could have been raised by the person against whom the claim arose. Estate Agency Affairs Act 112 of 1976 s 20 Sole agency: If the agent’s claim is based on a sole authority to sell and on a breach thereof by the seller, the claim will normally be one for damages for breach of contract and the agent will then have to allege and prove the breach and the damages suffered. This involves proof that the agent would have been able to effect a valid sale. De Coning v Monror Estate & Investment Co (Pty) Ltd 1974 (3) SA 72 (E) The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 1984 (2) SA 881 (A) Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Pty) Ltd 1989 (3) SA 26 (A) PRECEDENTS Claim – or commission 1. Plaintiff is an estate agent who, at all relevant times, was the holder of a valid fidelity fund certificate issued to him in terms of section 26(a) of Act 112 of 1976 and who had fidelity insurance in terms of section 26(b) of Act 112 of 1976. 2. On [date] at [place], defendant orally gave plaintiff a mandate to find a purchaser for defendant’s property, being [describe], at a selling price of at least [amount]. Plaintiff accepted the mandate.
3.
4. On [date], plaintiff introduced [X] to defendant and to the said property. 5. As a direct result of this introduction, [X] purchased the aforesaid property at a purchase price of [amount]. [A copy of the deed of sale is annexed hereto.] [Page 165] 6. Plaintiff was the effective cause of the sale and, in the premises, plaintiff duly performed his obligations in terms of the mandate given to him. 7. It was an express term of the mandate that, should plaintiff duly perform thereunder, he would be paid a commission equal to [percentage] of the purchase price. 8. Alternatively, it was a[n implied] term of the mandate that, in such event, plaintiff would be paid the commission equal to the generally accepted tariff for estate agents selling the type of property concerned in the [specify] area. The generally accepted tariff payable to estate agents in the [specify] area for transactions of this nature is [percentage] of the purchase price. Claim – for commission upon fulfilment of condition precedent 1. to 5. [As before.] 6. The sale was conditional on the plaintiff’s obtaining, on behalf of [X], approval in principle of a first mortgage bond on security of the property for the sum of [Ra] within [period]. The condition was fulfilled in due time by the approval of [Bank] of a bond as aforesaid. [Par 6 et seq as before.] Cf Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A)
7. 8.
Claim – against Board [As before.]
1.
2. Defendant is the Estate Agents Board, a juristic person established by section 2 of the Estate Agency Affairs Act 112 of 1976. 3. Plaintiff purchased a property through the agency of [X] estate agents from [give full particulars]. 4. In terms of the deed of sale, plaintiff was obliged to pay a deposit of [Rx] into the trust account of [X], pending transfer of the property in plaintiff ’s name. Plaintiff fulfilled this obligation on [date] by entrusting to [X], in his capacity as estate agent, the said sum. [X] stole the said amount and plaintiff suffered pecuniary loss of [Rx] as a result thereof. Plaintiff has given timeous notice as required by section 18(3) of Act 112 of 1976.
5. 6. 7.
Claim – for breach of sole agency 1. [As before.] 2. On [date] at [place], defendant, in writing, appointed plaintiff as his sole agent to find a purchaser for defendant’s property situate at [address] for the period [date] to [date]. A copy of the appointment is attached hereto and marked “A”. 3. Plaintiff accepted this appointment. [Detail] 4.
During the currency of the sole agency, defendant sold the property to [name] for a price of [amount] through the agency of [X]. 5. In so selling the property, defendant breached his agreement with plaintiff. 6. If plaintiff had not been prevented from performing in terms of his sole agency by the sale of the property, he would have been able to find a willing and able purchaser for the property at a purchase price of [amount]. [Detail] 7. Had plaintiff been able to effect the aforesaid sale, he would, in terms of the mandate, have been entitled to receive commission of [amount]. 8. In the premises, plaintiff has suffered damages in the sum of [amount] by virtue of defendant’s breach of contract. [Page 166] Pleadings/Amlers Precedents of Pleadings/E/Estoppel Estoppel Related subjects:
AGENCY VINDICATION
General: The essence of the doctrine of estoppel by representation is that a person is precluded or estopped from denying the truth of a representation previously made by her or him to another person if the latter, believing in the truth of the representation, acted thereon to her or his detriment. Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A) at 291 Onus: If a party wishes to rely on estoppel, that party must plead it and prove its essentials. Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) at 260 ABSA Bank Ltd v IW Blumberg & Wilkinson [1997] 2 All SA 307 (A); 1997 (3) SA 669 (SCA) Estoppel raised by a plaintiff: Estoppel is not a cause of action. A plaintiff can, therefore, not rely on it in the claim nor can a defendant rely thereon in a counterclaim. Rosen v Barclays National Bank Ltd 1984 (3) SA 974 (W) at 983 Sodo v Chairman, African National Congress, Umtata Region [1998] 1 All SA 45 (Tk) If the plaintiff wishes to rely on estoppel, it must be pleaded in the replication in reply to the defendant’s plea where reliance is placed upon the true facts. Mann v Sidney Hunt Motors (Pty) Ltd 1958 (2) SA 102 (G) If the plaintiff is, at the inception of the litigation, aware of the true facts, the plaintiff must base the case in the particulars of claim on the facts as represented to the plaintiff. If the defendant then pleads the true facts, the plaintiff may rely on estoppel in the replication. Estoppel raised by a defendant: A defendant may, in defence, raise estoppel in the plea. De Klerk v Old Mutual Insurance Co Ltd 1990 (3) SA 34 (E) at 41 Essentials: The essentials for estoppel are: (a) a representation by words or conduct of a certain factual position. Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A) at 761 Road Accident Fund v Mothupi [2000] 3 All SA 181 (A); 2000 (4) SA 38 (SCA) Where a party relies on a representation by conduct, it must be shown that the representation was clear and unequivocal and that the party reasonably understood the representation in the sense alleged. B & B Hardware Distributors (Pty) Ltd v Administrator, Cape 1989 (1) SA 957 (A) To constitute an estoppel, the representation must be unambiguous; Southern Life Association Ltd v Beyleveld NO 1989 (1) SA 496 (A) (b)
that the party acted on the correctness of the facts as represented. Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (A) at 743 There must, therefore, have been a causal connection between the representation and the act. Such proof includes proof that the reliance was not actuated by some external influence or factor other than the misrepresentation. Stellenbosch Farmers’ Winery Ltd v Vlachos t/a Liquor Den [2001] 3 All SA 577 (A); 2001 (3) SA 597 (SCA)
[Page 167] (c)
that the party so acted or failed to act, to her or his detriment; Peri-Urban Areas Health Board v Breet NO 1958 (3) SA 783 (T) at 790 Autolec Ltd v Du Plessis 1965 (2) SA 243 (O) ABSA Bank Ltd v De Klerk [1998] 4 All SA 674; 1999 (1) SA 861 (W)
(d) that the representation was made negligently. The requirement of negligence is not always an essential element. If, in answer to a vindicatory claim, reliance is sought to be placed on estoppel, it is necessary to allege and prove that the representation relied upon was: (i) made by the owner of the movable concerned; (ii) to the effect that the person who disposed of the plaintiff’s property was its owner or was entitled to dispose of it; Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd 1976 (1) SA 441 (A) at 452 Pretorius v Loudon 1985 (3) SA 845 (A) Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 (3) SA 188 (A) at 198–199 Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk [1996] 2 All SA 225 (A); 1996 (3) SA 273 (A) at 284–285 Info Plus v Scheelke [1998] 2 All SA 509 (SCA) at 516–517; 1998 (3) SA 184 (SCA) Caldeira v Ruthenberg [1999] 1 All SA 519 (A); 1999 (4) SA 37 (SCA) (e) that the person who made the representation could bind the defendant by means of a representation. This means that a representation by A that he is entitled to act on behalf of B cannot estop B from denying A’s authority unless, for instance, B was a party to the representation. Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA) It is different if B represented that A could act on B’s behalf. NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (A); 2002 (1) SA 396 (SCA) Invalid acts: Estoppel cannot be used to make legal what otherwise would be illegal and cannot replace statutory requirements for the validity of contracts. Trust Bank van Afrika Bpk v Eksteen 1964 (3) SA 402 (A) Strydom v Die Land- & Landboubank van SA 1972 (1) SA 801 (A) at 815 Philmatt (Pty) Ltd v Mosselbank Developments CC [1996] 1 All SA 296 (A); 1996 (2) SA 15 (SCA) Provincial Government of the Eastern Cape and others v Contractprops 25 (Pty) Ltd [2001] 4 All SA 273 (A); 2001 (4) SA 142 (SCA) PRECEDENTS Plea – to a claim based on plaintiff’s ownership of a motor vehicle 1. Defendant denies that plaintiff is the owner of the motor vehicle concerned. 2. In the alternative, and in the event of the court’s finding that plaintiff is the owner of the vehicle, defendant pleads that plaintiff is estopped from relying on his ownership for the following reasons: (a)
on [date], plaintiff by words [set out] and by conduct [set out] negligently represented to defendant that one [X] was the owner of the motor vehicle;
[Page 168] (b)
defendant accepted as correct this representation and acted thereon when [X] presented the vehicle to him as a trade-in on a vehicle which [X] intended to purchase from defendant;
(c) in so doing, defendant acted to his detriment and accepted the said vehicle as part payment for the purchase of a vehicle [describe] by [X]. Plea – similar 3. Plaintiff entrusted the vehicle to X Motors, a well-known dealer in motor vehicles. 4. Plaintiff requested X Motors to find a buyer for the vehicle.
5. Plaintiff knew, or should have known, that X Motors would exhibit the vehicle at its business premises as part of its stock-in-trade, which it in due course did. Plaintiff thereby enabled X Motors to deal with the vehicle as owner.
6.
7. By this conduct, plaintiff negligently represented to defendant that X Motors was the owner of the vehicle and had the right to dispose of it. 8. Defendant accepted as correct the representation and, relying on it, to his prejudice, purchased the vehicle from X Motors and paid the purchase sum of [Rx] in full. Plaintiff is consequently estopped from enforcing his alleged ownership against defendant. Cf Info Plus v Scheelke 1998 (3) SA 184 (SCA); [1998] 2 All SA 509 (SCA) at 516a–f
9.
Replication – to a plea denying that defendant’s alleged agent was authorised Plaintiff persists in his allegations that [X] was duly authorised by defendant to enter into the contract.
1.
2. In the event, however, of the court’s finding that [X] was not duly authorised, plaintiff replies that defendant is estopped from denying the authority of [X] for the following reasons: (a) For many years, plaintiff conducted business with defendant through the agency of [X]. (b) [X] is stated to be the agent of defendant on defendant’s stationery. (c) At no time did defendant inform plaintiff that [X] was no longer his agent. (d) Acting as aforesaid, defendant represented to plaintiff that [X] was still his authorised agent. (e) Acting on the belief of the correctness of this representation, plaintiff was induced, to his detriment, to enter into a contract with [X], ostensibly as the agent of defendant. Cf the pleadings in CJ Mathebula t/a Nxolwane Bottle Store v University of the North [1998] 3 All SA 477 (T) Pleadings/Amlers Precedents of Pleadings/E/Eviction or Ejectment Eviction or Ejectment Related subject:
LEASES POSSESSORS: DAMAGES CLAIMS BY VINDICATION WARRANTY AGAINST EVICTION
Statutory protection: The Constitution and a number of statutes affect the right to eject an “unlawful” occupier of land and these have to be taken into account before proceeding against any given occupier. The statutes are dealt with below in a limited fashion. Causes of action: Ejectment of an occupier of premises can be obtained by means of: (a)
the rei vindicatio. In such event, reliance is placed on the plaintiff’s ownership and the defendant’s possession of the property; or
(b) a possessory claim. [Page 169] Under the present heading, only the second ground is discussed. It should, however, be read with VINDICATION. Possessory claim: The plaintiff need not allege and prove any title to the property from which the defendant is to be evicted under this cause of action. Ebrahim v Pretoria Stadsraad 1980 (4) SA 10 (T) Boompret Investments (Pty) Ltd v Paardekraal Concession Store (Pty) Ltd 1990 (1) SA 347 (A) at 351 The plaintiff must, however, allege and prove:
(a) the right of the defendant to possess, for example, the terms of the agreement between the parties, which was derived from the plaintiff; Boshoff v Union Government 1932 TPD 345 (b) a valid termination of the right to possess; Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C) Schnehage v Bezuidenhout 1977 (1) SA 362 (O) V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd [2002] 4 All SA 50 (Z) (c) (d)
the continued occupation by the defendant or someone holding on behalf of or through the defendant; compliance with the provisions of the Extension of Security of Tenure Act 62 of 1997 or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, if applicable (see below);
(d) damages (if any) suffered as a result of the holding over. See : LEASES If the cause of action is not related to a cancelled contract, reliance must be placed on a superior (usually statutory) right. Vumane v Mkize 1990 (1) SA 465 (W) South African National Parks v Ras [2001] 4 All SA 380 (C); 2002 (2) SA 537 (C) Relief: The relief available is: (a) an order ejecting the defendant from the premises; (a) optionally, cancellation or confirmation of the cancellation of the underlying agreement; (c) damages, if any suffered. Extension of Security of Tenure Act 62 of 1997: The object of the Act is to protect against eviction a class of impecunious tenants (“occupiers”) in rural and semi-rural land who have acquired their tenancy with the consent of the landowner. An “occupier” is defined to mean a person residing on land which belongs to another person and who, has or on 4 February 1997 or thereafter, had consent or another right in law to do so, but excluding: (a) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and (b) a person who has an income in excess of the prescribed amount; A plaintiff must allege and prove that the defendant falls within one of the two exceptions and also that the defendant did not occupy with consent. Extension of Security of Tenure Act 62 of 1997 s 3(4)–(5) [Page 170] The Act also applies to occupiers who are not employees of the landowner. Van Zyl NO v Maarman [2000] 4 All SA 212 (LCC); 2001 (1) SA 957 (LCC) The Act applies basically to all land other than land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law. Since there is a presumption that the land occupied falls under the provisions of the Act, a plaintiff has to allege and prove that the Act does not apply. Extension of Security of Tenure Act 62 of 1997 s 2 The jurisdiction of the High Court to grant eviction orders under the Act is limited. Mkangeli v Joubert [2002] 2 All SA 473 (A); 2002 (4) SA 36 (SCA) Khumalo v Potgieter [2001] 3 All SA 216 (A); 2001 (3) SA 63 (SCA) A court may make an order for the eviction of an occupier if: (a) the occupier’s right of residence has been lawfully terminated in terms of section 8; Conradie v Hanekom [1999] 2 All SA 525 (LCC); 1999 (4) SA 491 (LCC) (b)
the occupier has not vacated the land within the period of notice given;
(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and (d) not less than two calendar months’ written notice of the intention to obtain an order for eviction was given to: (i) the occupier; (ii) the municipality in whose area of jurisdiction the land in question is situated; and (iii) the head of the relevant provincial office of the Department of Land Affairs. Extension of Security of Tenure Act 62 of 1997 s 9 Howarth v Schoeman [2001] 4 All SA 405 (LCC) Depending on whether the occupier occupied since or before 4 February 1997, the powers of the court in granting an eviction order are differently circumscribed. Extension of Security of Tenure Act 62 of 1997 ss 10–13 Pitout v Mbolane [2000] 2 All SA 377 (LCC) A court may nevertheless grant an urgent order on application. Extension of Security of Tenure Act 62 of 1997 s 15 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: The Act applies to the eviction of all unlawful occupiers, meaning persons who occupy land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy such land. Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA); 2003 (1) SA 113 (SCA) The Act does not apply to persons who are occupiers in terms of the Extension of Security of Tenure Act or to persons whose informal right to land is protected by the Interim Protection of Informal Land Rights Act 31 of 1996. [Page 171] Fourteen days before the hearing of the eviction proceedings, the occupier and the local municipality must be given the prescribed notification of such proceedings. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 s 4 Cape Killarney Property Investment (Pty) Ltd v Mahamba [2001] 4 All SA 479 (A); 2001 (4) SA 1222 (SCA) This requirement may be dispensed with if a case of urgency can be made out. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 s 5 The court has a discretion in ordering eviction and, in this regard, there are various prescribed factors that have to be taken into account. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 s 4(6)–(8) Provided the procedural requirements have been met, the owner is entitled to approach the court on the basis of ownership and the respondent’s unlawful occupation. Unless the occupier opposes and discloses circumstances relevant to the eviction order, the owner is entitled to an order for eviction. Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA); 2003 (1) SA 113 (SCA) PRECEDENTS Claim – eviction after cancellation of lease 1. On [date] at [place], plaintiff and defendant entered into an oral agreement in terms of which plaintiff, as lessor, leased to defendant, as lessee, a house situated at [address]. 2. In terms of the aforesaid agreement, defendant took occupation of the house on [date] and remains in occupation. On [date], plaintiff, as he was entitled to do, cancelled the aforesaid agreement.[Detail basis of cancellation]
3.
4. Defendant’s right to occupy the property, therefore, terminated on [date] but, despite demand, defendant has failed to vacate the property. 5. As a result of defendant’s continued occupation of the property, plaintiff is suffering damages in the amount of [amount] per month calculated as follows: [detail]. WHEREFORE plaintiff claims:
(a) An order confirming the cancellation of the agreement between the parties. (b) An order ejecting defendant from the premises at [address]. (c) Payment of [amount] damages per month of unlawful occupation. Pleadings/Amlers Precedents of Pleadings/E/Exceptio non adimpleti Contractus Exceptio non adimpleti Contractus Related subjects: TENDER BY PLAINTIFF LOCATIO CONDUCTIO OPERIS General: If the obligations of parties to a contract are reciprocal, the claim of the plaintiff, who has not yet performed or tendered to perform, may be met by the defence that the defendant’s obligation to perform has not yet arisen because of the lack of performance by the plaintiff. Grand Mines (Pty) Ltd v Giddey NO 1999 (1) SA 960 (A) [Page 172] It can apply only where the plaintiff’s performance has to precede the defendant’s or where both have to perform at the same time. Mörsner v Len 1992 (3) SA 626 (A) The exceptio is usually a temporary remedy but may be a permanent one where performance by the plaintiff is no longer possible. Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd [1996] 4 All SA 601 (A); 1996 (4) SA 950 (A) Defective performance may also be met by the exceptio. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) Sequence of performance: (a) Where a contract imposes reciprocal obligations upon the parties, performance and counter-performance should generally take place at the same time. RM Van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C) Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd [1996] 4 All SA 601 (A); 1996 (4) SA 950 (A) This applies to all types of reciprocal contracts and not only to building contracts and the like. Thompson v Scholtz [1998] 4 All SA 526 (A); 1999 (1) SA 232 (A) In the case of a sale, the delivery of the merx and payment of the purchase price are ordinarily reciprocal and concurrent. Andrews v Lidaks 1971 (1) SA 892 (W) (b)
(c) (d)
Certain types of contract form an exception to this rule. Thus, a lessor of property must usually perform before rental can be demanded and a building contractor must, in principle, perform first. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) The parties may, by agreement, vary the order of performance of their obligations. It is essentially a matter of interpretation to establish whether the obligations are so closely linked as to be mutually dependent, rendering the principle of reciprocity applicable. Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd [1996] 4 All SA 601 (A); 1996 (4) SA 950 (A)
Onus: A plaintiff claiming performance of contractual obligations must, if the obligations are dependent upon each other, allege and prove one of the following: (i) that the plaintiff has properly performed its part of the bargain; (ii) that the plaintiff is excused from performance by reason of, for example, impossibility of performance; (iii) a tender (a willingness and ability) by the plaintiff to perform its side of the bargain; or
(iv) that the defendant has accepted defective performance. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at 419 Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd 1979 (2) SA 56 (A) International Executive Communications Ltd t/a Institute for International Research v Turnley [1996] 3 All SA 648 (W); 1996 (3) SA 1043 (W) at 1047–1050 Ter Beek v United Resources CC 1997 (3) SA 315 (C) [Page 173] It is, however, for the defendant to allege non-performance and to provide sufficient detail to enable the plaintiff to disprove the allegations and, in a suitable case, the defendant may have to begin with the leading of evidence. HA Millard & Son (Pty) Ltd v Enzenhofer 1968 (1) SA 330 (T) Transfer: As to a tender of guarantees against transfer of immovable property, see Rosen v Ekon [2000] 3 All SA 24 (W); 2001 (1) SA 199 (W) PRECEDENTS Claim – with tender of delivery 1. On [date] at [place], the parties entered into an oral agreement in terms of which plaintiff sold to defendant a gold watch. 2. It was a term of the agreement that delivery of the watch would be made on [date] against payment to plaintiff of [amount] being the full purchase price. 3. On due date, plaintiff tendered delivery of the watch, but defendant refused to pay the purchase price. 4. Plaintiff repeats his tender of delivery of the watch against payment of the purchase price. WHEREFORE, tendering as aforesaid, plaintiff claims payment of [amount]. Claim – with tender of payment 1. On [date] at [place], the parties entered into a written agreement, a copy of which is attached hereto and marked “A”, in terms of which plaintiff purchased from defendant the fixed property situate at [address] for the purchase price of [amount]. 2. Plaintiff hereby tenders to defendant the balance of the purchase price in the sum of [amount] in cash upon registration of transfer of the land into plaintiff’s name and, as will more fully appear from Annexure “B” hereto, being a copy of a bank guarantee by the [specify] bank, payment of the said balance is secured by means of a bank guarantee. 3. In the premises, defendant is obliged to pass transfer of the property to plaintiff but, despite demand, has failed or refused to do so. Plea – of non-performance 1. Defendant admits the agreement as alleged and his failure to perform in terms thereof, but pleads that, in terms of the agreement, plaintiff is obliged to make payment of the sum of [amount] before or simultaneously with defendant’s performance. Plaintiff has not made any payment of the said sum, nor has he tendered to do so. WHEREFORE defendant prays that plaintiff’s claim be dismissed with costs. Pleadings/Amlers Precedents of Pleadings/E/Exceptions Exceptions Uniform rule 23 provides for two kinds of exceptions in the High Court, namely: (a) (b)
an exception on the basis that a pleading is vague and embarrassing; and
2.
an exception where a pleading lacks averments which are necessary to sustain an action or defence. Trope v SA Reserve Bank 1993 (3) SA 264 (A) [Page 174] An exception based on the first ground must be preceded by a notice affording the opponent the opportunity of removing the cause of complaint. The Magistrates’ Courts rules distinguish between exceptions against a summons and exceptions against a plea. As far as a summons is concerned, an exception may be noted on the grounds that: (a) the summons does not disclose a cause of action; (b) the summons is vague and embarrassing; (c) the summons does not comply with the requirements of Magistrates’ Courts rule 5 or 6 (concerning the formal requirements of a summons); (d) (e)
the summons has not been properly served; the copy of the summons served on the defendant differs materially from the original. Magistrates’ Courts rule 17(2)
In the case of a plea, the grounds are that the plea: (a) (b) (c)
does not disclose a defence to the plaintiff’s claim; is vague and embarrassing; does not comply with the requirements of Magistrates’ Courts rule 19 (concerning the formal requirements of a plea). Magistrates’ Courts rule 19(14)
Grounds: Whenever an exception is taken to any pleading, the grounds on which the exception is founded must be stated clearly and concisely. Uniform rule 23(3) Prayer: An exception must end with a prayer praying for the deletion of the offending allegations or for the dismissal of the action or defence. The usual order is to uphold the exception and to grant the respondent leave to amend the pleading within a specified period. General: The purpose of an exception alleging that a pleading lacks averments, which are necessary to sustain an action or defence, is to dispose of the leading of evidence at the trial. Such an exception must go to the root of the claim or defence. An exception cannot be taken to a declaration or particulars of claim on the ground that it does not support one of several prayers arising out of one cause of action because the unjustifiable prayer amounts to a plus petitio and its deletion cannot affect the amount of evidence to be led. It is appropriate to except if the point of law raised will dispose of the case in whole or in part. An exception should not be taken to particular sections of a pleading unless they are self-contained and amount to a separate claim or defence. Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A) Dharampul Transport (Pty) Ltd v Dharampal 1956 (1) SA 700 (A) On the other hand, where the same claim is based on alternative causes of action, an exception can be taken against one or more of the alternatives. Du Preez v Boetsap Stores (Pty) Ltd 1978 (2) SA 177 (NC) An exception is generally not the appropriate procedure to settle questions of interpretation because, in cases of doubt, evidence may be admissible at the trial stage relating to surrounding circumstances which evidence may clear up the difficulties. Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A) [Page 175] So, too, the question of whether a contract is void for vagueness does not readily fall to be decided by way of exception. Lewis v Oneanate (Pty) Ltd 1992 (4) SA 811 (A) at 817–818 An exception based on the ground that the pleading is ambiguous cannot succeed unless, on every interpretation, no cause of action or defence is disclosed. The proper remedy would be to except on the basis that the pleading is vague and embarrassing. Callender-Easby v Grahamstown Municipality 1981 (2) SA 810 (E) Wilson v SAR&H 1981 (3) SA 1016 (C)
An exception is decided on the allegations of the respondent only and cannot be used to solve a factual dispute. A party who excepts need not file a further pleading until the exception has been disposed of. Uniform rule 23(4) PRECEDENTS Exception – to particulars of claim Defendant excepts to plaintiff’s particulars of claim because it does not disclose a cause of action on the grounds that: (a) plaintiff claims delivery of immovable property pursuant to a deed of sale between the parties; (b) it appears ex facie the deed relied upon by plaintiff that defendant did not sign it as seller; (c) plaintiff does not allege that the person who did sign as seller was acting as defendant’s agent and was so appointed in terms of a written authority signed by defendant. WHEREFORE defendant prays that plaintiff’s claim be dismissed with costs. Exception – to part of a claim Defendant hereby excepts to plaintiff’s particulars of claim on the ground that the first alternative claim is bad in law and does not disclose a cause of action on the following grounds: (a)
plaintiff’s first alternative misrepresentation;
claim
is
a claim
for damages
based upon
defendant’s
alleged
innocent
(b) plaintiff’s first alternative claim is not based on the aedilitian actions or a dictum et promissum; (c) there is in law no claim for damages suffered as a result of an innocent misrepresentation. WHEREFORE defendant prays that this exception be upheld and plaintiff’s first alternative claim be dismissed with costs. Exception – to a plea Plaintiff excepts to defendant’s plea on the ground that it does not disclose a defence because: (a) plaintiff’s claim is based upon a cession from [the cedent] to plaintiff; (b) defendant admits the cession and does not deny that he had knowledge of the cession at all relevant times; (c) defendant’s plea of payment to the cedent after the cession and with knowledge thereof does not constitute a defence in law. WHEREFORE plaintiff claims that the exception be upheld with costs and defendant’s plea be dismissed with costs. [Page 176] Pleadings/Amlers Precedents of Pleadings/E/Exchange Exchange To determine whether a contract to deliver an article and pay money is one of exchange or sale, the primary consideration is the intention of the parties, which is to be inferred from the circumstances and terms of the transaction. Hoeksma v Hoeksma 1990 (2) SA 893 (A) Where the main consideration is the payment of money, the transaction is normally one of sale. If money is not the main consideration, it is normally one of exchange. Wastie v Security Motors (Pty) Ltd 1972 (2) SA 129 (C) Terblanche v Archdeacon 1979 (3) SA 201 (T) Mountbatten Investments (Pty) Ltd v Mahomed 1989 (1) SA 172 (D) If the value of a trade-in at an agreed price is the determining factor, the contract is one of sale. Bouwer v Adelford Motors (Pty) Ltd 1970 (4) SA 286 (E)
There are few differences between the law of sale and the law of exchange. It must be noted, however, that the property of another cannot be bartered. Pennefather v Gokul 1960 (4) SA 42 (N) On the other hand, the aedilitian actions for latent defects are available to a party to an exchange. Janse van Rensburg v Grieve Trust CC [1999] 3 All SA 597 (C); 2000 (1) SA 315 (C) See : LATENT DEFECTS Any alienation of land pursuant to a contract of exchange must comply with the provisions of the Alienation of Land Act 68 of 1981. Leonard Light Industries (Pty) Ltd v Wright 1991 (4) SA 628 (W) See : ALIENATION OF LAND PRECEDENTS Claim – for performance 1. On [date] at [place], the parties orally agreed that defendant would give to plaintiff a certain motor vehicle [registration number] in exchange for a certain motorcycle [registration number] to be given by plaintiff to defendant. 2. Plaintiff has duly tendered delivery of the said motorcycle to defendant, but defendant has refused to accept the said tender and to deliver the motorcar to plaintiff. WHEREFORE, tendering as aforesaid, plaintiff claims delivery of motor vehicle [registration number]. Pleadings/Amlers Precedents of Pleadings/E/Expropriation Expropriation [Based on the contribution of Mr Justice Hartzenberg to the third edition of this work.] The statute: Various authorities and bodies are empowered to expropriate property and rights. They derive their authority from specific statutory provisions. The basis on which the amount of compensation has to be determined is prescribed by the Expropriation Act 63 of 1975 (as amended) and the Bill of Rights. 1996 Constitution s 25(3) [Page 177] The forum: If, in the event of expropriation, the parties cannot agree on the amount of compensation payable, the compensation can be determined either by: (i) arbitration; Expropriation Act 63 of 1975 s 14(7) or the High Court. Expropriation Act 63 of 1975 s 14(1)
(ii)
Invalid expropriation: A purported expropriation is void ab initio if the expropriating authority exceeds its powers, and may be voidable where, although professing to expropriate for a purpose permitted by the relevant Act, the expropriating authority expropriates with an ulterior motive. It may also be void if the description of the property is not sufficiently clear to identify it. Voorslag Ontwikkelingskorp (Edms) Bpk v Administrateur, Transvaal 1974 (3) SA 563 (T) Provinsiale Administrasie, Kaap die Goeie Hoop v Swart 1988 (1) SA 375 (C) It is not uncommon for the plaintiff to claim that the notice of expropriation be set aside and, in the alternative, that the compensation be determined. Parties: The plaintiff is the expropriatee of a property or a right who claims compensation and actual financial loss due to the expropriation. Cf Expropriation Act 63 of 1975 s 1 sv “owner” The defendant, who is the expropriator, can be one of a number of authorities or bodies, such as, inter alia, the central government, usually represented by the relevant Minister, provincial governments, local authorities, and other bodies established to promote matters of public importance. Expropriation Act 63 of 1975 s 3(2) The officials of the Department of Community Development perform the administrative functions of the Community Development Board. Community Development Act 3 of 1966 s 10 A notice of expropriation in terms of which the Community Development Board expropriates property, therefore, emanates from the offices of the Department of Community Development. The correct defendant to cite in such an event is the Community Development Board, a statutory body corporate.
Date of notice of expropriation: The market value of the expropriated property has to be determined as at the “date of notice”. Expropriation Act 63 of 1975 s 12(1)(a)(i) The date of notice is the date on which a notice of expropriation is delivered, tendered or posted to a person or published in the Gazette. Expropriation Act 63 of 1975 ss 1, 7(3) and 7(5) Market value: A fixed property has, at the date of its expropriation, a single market value which is to be determined by valuing the property as such without reference to the particular owner. Pienaar v Minister van Landbou 1972 (1) SA 14 (T) at 20 In order to determine the market value, the court must ascertain what the notional willing purchaser would have paid to a notional willing seller at the date of notice. The notional willing purchaser and seller are not the expropriatee or the expropriator. They are deemed to be fully informed as to all the attributes of the property, both positive and negative. All the potentialities of the property must be ascertained as reasonable possibilities, not as realised certainties. Bestuursraad van Sebokeng v M&K Trust & Finansiële Maatskappy (Edms) Bpk 1973 (3) SA 376 (A) at 384 [Page 178] When a portion of a property is expropriated, compensation therefor may be determined by valuing the property as a whole before expropriation and valuing the remainder after expropriation. The difference between the two amounts will be the compensation payable as the market value. Another approach is to value the expropriated portion and to allow the plaintiff the depreciation in value of the remainder, if any, as actual financial loss. When the market value of a property is determined by way of valuation, various factors have to be taken into account. No allowance is to be made for the fact that the property had been taken without the consent of the owner; that the special suitability of the property for the purpose for which it is required by the expropriator is to be disregarded unless it would have sold in the open market for that purpose; that enhancement due to unlawful use is to be disregarded; that improvements after the date of notice are to be disregarded; that no allowance is to be made for unregistered rights or indirect damage or for anything done with the object of obtaining compensation; that any enhancement or depreciation before or after notice, as a result of the purpose for which the property is being expropriated or destined to be used, is not to be taken into account; that regard must be had to the fact that the expropriatee has benefited from works erected by the state, and enhancement of the remainder of the expropriated property, as a result of the purpose of the expropriation (in the case of a partial taking), to compensation paid for un-registered rights, pertaining to the property in question, and benefits or disadvantages resulting from the expropriation in terms of the Water Act 54 of 1956 Repealed Act Act 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998 (which Act has been replaced by the National Water Act 36 of 1998). Expropriation Act 63 of 1975 s 12(5) Cf Randburg Town Council v Kerksay Investments (Pty) Ltd [1997] 4 All SA 121 (A); 1998 (1) SA 98 (SCA) Onus: If there is no dispute as to the potentialities of the property, the court, as “super” valuer, is to determine the value of the property in terms of section 12(1)(a)(i) of the Expropriation Act. There is no onus on the plaintiff to prove the value. Where, however, the expropriatee alleges that there is a special potential for which the notional purchaser would have paid and that aspect is in dispute, there is an onus on the expropriatee to allege and prove that the purchaser would have taken that alleged potential into account in paying for the property. Otherwise that particular potential will be disregarded in valuing the property. Thanam NO v Minister of Lands 1970 (4) SA 85 (D) at 88 Bonnet v Department of Agricultural Credit & Land Tenure 1974 (3) SA 737 (T) at 744–745 Loubser v SA Spoorweë & Hawens 1976 (4) SA 589 (T) at 608–613 Cf De Villiers v Stadsraad van Mamelodi 1995 (4) SA 347 (T) When the expropriatee claims actual financial loss, it is necessary to prove a direct causal connection between the expropriation and the alleged financial loss. Expropriation Act 63 of 1975 s 12(1)(a)(ii) Davis v Pietermaritzburg City Council 1989 (3) SA 765 (A) Benede Sand Boerdery (Edms) Bpk v Virginia Munisipaliteit 1992 (4) SA 176 (A) Kangra Holdings (Pty) Ltd v Minister of Water Affairs [1998] 3 All SA 227; 1998 (4) SA 330 (A) Solatium: When land is expropriated, a solatium on a sliding scale is to be added to the market value of the land. Expropriation Act 63 of 1975 s 12(2) [Page 179] Compensation in regard to a right: Unregistered rights terminate on the date of expropriation and there is no obligation on the state to pay compensation for such rights. The exceptions are certain leases, contracts of sale and rights of retention Expropriation Act 63 of 1975 s 22 read with s 9(1) When a right is expropriated, the expropriatee may claim for “actual financial loss” only and not for inconvenience. A solatium is also payable by the expropriator when a right is expropriated.
Interest: Interest in respect of the unpaid portion of the market value of the property is to be paid as from the date on which the expropriator takes possession of the property. Interest is not payable on the solatium. Expropriation Act 63 of 1975 s 12(3) Community Development Board v Mahomed NNO 1987 (2) SA 899 (A) at 910 Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A) PRECEDENTS Claim – for compensation payable as a result of the expropriation of a fixed property Plaintiff is A. Defendant is B.
1. 2.
3. Plaintiff was at all relevant times the registered owner of [give a deeds office description of the expropriated property] (“the property”). 4. By notice of expropriation, defendant expropriated the property. The notice of expropriation was served on plaintiff on [date] (“the date of notice of expropriation”). The open-market value of the property at the date of notice of expropriation was [Rx]. As a result of the expropriation, plaintiff suffered actual financial loss in an amount of [Ry].
5. 6.
7. Defendant is obliged to pay to plaintiff an amount of [Rz] as a solatium in terms of section 12(2) of Act 63 of 1975. 8. Defendant is further obliged, in terms of section 12(3), to pay interest to plaintiff on the appropriate scale as from [insert the date on which the expropriator took possession of the property or is deemed to have taken possession thereof in terms of section 8(3) or 8(5)] on the portion of the market value determined in terms of section 12(1)(a) not yet paid to plaintiff. The parties failed to reach agreement as to the amount of compensation payable to plaintiff. On [date], defendant paid an amount of [Rw] to plaintiff in terms of section 12(1)(a)(i).
9. 10.
WHEREFORE plaintiff claims: An order in terms of which the compensation payable to plaintiff in terms of section 12 of Act 63 of 1975 be determined as follows: (a) the market value of the property, in terms of section 12(1)(a)(i), in an amount of not less than [Rx]; (b) the actual financial loss, in terms of section 12(1)(a)(ii), in the amount of [Ry]; (c) the solatium, in terms of section 12(2), in the amount of [Rz]; (d) that interest be payable on [Rx–Rw] as from [the date mentioned in paragraph 8], at the rate provided for in section 12(3), until date of payment. Claim – for compensation in terms of section 12(1)(b) of Act 63 of 1975 where a right has been expropriated Plaintiff is A. Defendant is B.
1. 2.
[Page 180] 3. Plaintiff was at all relevant times [set out the right which has been expropriated – for example, the registered holder of the mineral rights in respect of the property known as . . .].
4. By notice of expropriation, defendant expropriated plaintiff’s mineral rights. The notice of expropriation was served on plaintiff on [insert the date of service of the notice]. 5. As a result of the expropriation, plaintiff suffered actual financial loss and was inconvenienced to an amount of [Rx]. 6. The parties could thus far not agree on the amount of compensation payable to plaintiff in terms of section 12 of Act 63 of 1975. WHEREFORE plaintiff claims: An order in terms of which the compensation payable to plaintiff in terms of section 12(1)(b) of Act 63 of 1975 of the Act be determined in an amount of not less than [Rx]. Claim – for the setting aside of an invalid notice of expropriation Plaintiff is A. Defendant is B. Plaintiff was at all relevant times the registered owner of [description of property]. By notice dated [date], defendant purported to expropriate plaintiff’s aforesaid property [or right]. Defendant is empowered to expropriate the property at the request of the [minister]; or
1. 2. 3. 4. 5.
defendant is empowered in terms of [insert the section and number of the empowering statute or ordinance] to expropriate property for the purposes provided for in [set out the relevant section of the empowering Act or ordinance]. 6. The [minister] did not request defendant to expropriate the property; or the purported expropriation was not done for any of the aforesaid purposes but for an ulterior motive. [Detail] In the premises, the purported expropriation is void ab initio; or
7.
in the premises, the purported expropriation is voidable and ought to be set aside. WHEREFORE defendant prays: That the expropriation of the property [describe] be declared null and void; or That the expropriation of the property [describe] be declared null and void and be set aside. Plea – expropriation of property 1. Ad paragraphs 1, 2, 3, 4, 8, 9, 10. These allegations are admitted. 2. Ad paragraph 5. Defendant denies that the market value of the property at the date of expropriation was more than [Rq]. Ad paragraph 6. Defendant denies the allegations in this paragraph and puts plaintiff to the proof thereof; or
3.
Defendant denies that plaintiff suffered actual financial loss in an amount more than [Rv]. 4. Ad paragraph 7. Defendant admits that he is obliged to pay a solatium to plaintiff in terms of section 12(2) but denies that the amount thereof is [Rz]. WHEREFORE defendant prays: (a) That the amount of compensation payable to plaintiff in terms of section 12(1)(a)(i) be determined in an amount not more than [Rq]. (b)
The market value as determined in (a) be taken as the basis for the payment of a solatium and the payment of interest. (c) Plaintiff’s claim in terms of section 12(1)(a)(ii) be dismissed; or the actual financial loss be determined in an amount not greater than [Rv]. (d)
That an appropriate order as to costs be made in terms of section 15 of Act 63 of 1975.
[Page 181] Plea – expropriation of right Ad paragraphs 1, 2, 3, 4 and 6. Defendant admits these allegations.
1.
2. Ad paragraph 5. Defendant denies that plaintiff suffered actual financial loss and was inconvenienced in an amount more than [Rw]. WHEREFORE defendant prays that the amount of compensation payable to plaintiff in terms of section 12(1)(b) be determined in an amount not greater than [Rw] and that an appropriate order as to costs be made in terms of section 15. Plea – validity of expropriation 1. Ad paragraphs 1, 2, 3 and 5. These allegations are admitted. 2. Ad paragraphs 4 and 6. Defendant denies the allegation that it only purported to expropriate the property. Defendant puts plaintiff to the proof of the allegation that the expropriation was not done at the request of the [minister]; or defendant denies that the expropriation was done for a purpose not provided for in [Act]. [Detail] Ad paragraph 7. Defendant denies each and every allegation in this paragraph.
3.
WHEREFORE defendant prays that plaintiff’s claim be dismissed with costs. Pleadings/Amlers Precedents of Pleadings/F/Foreign Judgments Foreign Judgments General: Although a judgment of a foreign court will be recognised by our courts without the need for formal proceedings in this country, such a judgment can be enforced by way of execution only if a competent local court makes an order based on the order of the foreign court. A local court does not have the power to investigate the merits of a case determined in a foreign court, even though the result of the case is vastly different from that which would have been achieved in our courts or the reasoning of the foreign court is patently defective. Duarte v Lissack 1973 (3) SA 615 (D) at 622 Eden v Pienaar [2000] 3 All SA 632 (W); 2001 (1) SA 158 (W) A party aggrieved by a decision of a foreign court must resort to the appellate or review proceedings available in the foreign country. Procedure: A party in whose favour a foreign court granted a judgment may apply for judgment in a local court having jurisdiction over the person of the defendant (the party against whom the order was made) for an order in the same terms as that of the foreign judgment. The foreign judgment is regarded as irrefutable proof of the indebtedness of the defendant. The plaintiff is entitled to apply for provisional sentence but may institute proceedings by way of an action or by way of a notice of motion. Jones v Krok 1995 (1) SA 677 (A) at 685 Essential allegations: The plaintiff in an action for recognition must allege and prove that: (a) the court in which the new proceedings are brought has jurisdiction over the person of the defendant; (b) in terms of local law, the foreign court had jurisdiction to decide the issue and had jurisdiction over the person of the defendant; Purser v Sales; Purser v Sales [2001] 1 All SA 25 (SCA); 2001 (3) SA 445 (SCA) Supercat Inc v Two Oceans Marine CC [2001] 3 All SA 1 (C); 2001 (4) SA 27 (C) [Page 182]
(c) the foreign judgment was, in terms of the relevant foreign law, a final judgment and not merely an interlocutory or a provisional judgment. Jones v Krok 1995 (1) SA 677 (A) at 689 It does not matter whether or not the merits of the case had been decided – for example, whether or not the judgment was granted by default. Gabelsberger v Babl 1994 (2) SA 677 (T) The foreign judgment must be properly authenticated, and it is advisable to annex a copy to the particulars of claim. In provisional sentence proceedings, a copy must be annexed to the summons. The court must be satisfied that the document before it is indeed a court order and not, for example, a recorded settlement. Holz v Harksen 1995 (3) SA 521 (C) Defences: A defendant is not entitled to re-open the merits of the foreign judgment and order. The defendant can dispute the essential allegations that the plaintiff has to prove. (a)
A substantial defence, which may be raised, is that the foreign judgment was granted contrary to the basic principles of natural justice which are acceptable to a South African court. A court will not easily criticise the procedural rules of foreign countries and will not measure their fairness by reference to local equivalents, but it will at least require proper notification of the proceedings to the defendant and compliance with the principles of the audi alteram partem rule. Duarte v Lissack 1973 (3) SA 615 (D) Eden v Pienaar [2000] 3 All SA 632 (W); 2001 (1) SA 158 (W) It appears from these authorities that the onus is on the defendant to establish that the judgment was obtained contrary to the principles of natural justice. See also: Jones v Krok 1996 (1) SA 504 (T) at 515
(b) The fact that a judgment is subject to an appeal, or that an appeal is pending, does not affect such judgment’s finality. The respondent may, however, place facts before the court to enable it to exercise a discretion in the respondent’s favour to stay the proceedings. Jones v Krok 1996 (1) SA 504 (T) at 692 (c)
A foreign judgment given in relation to an act or transaction which is connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership of any matter or material, of whatever nature, whether within, outside, into or from the Republic may not be enforced without the permission of the Minister of Economic Affairs. Protection of Businesses Act 99 of 1978 s 1
PRECEDENTS Claim – based on a foreign judgment 1. On [date], plaintiff instituted an action against defendant based upon a contract between the parties entered into on [date] at [place] in the [identify court] in [identify country]. 2. The said court was a court of competent jurisdiction to hear and determine plaintiff’s claim by virtue of the fact that the contract was entered into and defendant was domiciled in that country when the said proceedings were instituted. [Page 183] 3. The said court granted a final judgment in favour of plaintiff in the sum of [amount] on [date]. A copy of the order is annexed hereto. 4. Defendant is at present domiciled within the jurisdiction of this honourable court. 5. Defendant has failed to pay plaintiff the amount of the judgment. WHEREFORE plaintiff claims: Payment of the sum of [amount]. Plea – lack of jurisdiction 1. Defendant denies that the said [identify the court] was a court of competent jurisdiction to hear and determine plaintiff’s claim because:
(a) when the foreign proceedings were instituted, defendant was resident and domiciled in South Africa; and (b) the contract relied on was entered into in South Africa. 2. Alternatively, and in any event, defendant pleads that the judgment relied on was given pursuant to proceedings of which defendant had no notice and that the judgment was, accordingly, obtained contrary to the principles of natural justice. Pleadings/Amlers Precedents of Pleadings/F/Fraud Fraud Related subjects: ACTIO PAULIANA ESTOPPEL INNOCENT AND NEGLIGENT MISREPRESENTATION INJURIOUS FALSEHOODS JUDGMENTS: SETTING ASIDE General: A party wishing to rely on fraud must not only plead it but also prove it clearly and distinctly. Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 689 The onus is the ordinary civil onus, bearing in mind that fraud is not easily inferred. Essentials: The essential allegations for a claim or defence based on fraud are the following: Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A) at 1145 Dantex Investment Holdings (Pty) Ltd v Brenner NNO 1989 (1) SA 390 (A) (a)
A representation by the other party or his agent. The representation usually concerns a fact, but may also relate to an opinion said to be held but in fact not held, Feinstein v Niggli 1981 (2) SA 684 (A) Aldeia v Coutinho 1997 (4) SA 295 (O) and may consist of a non-disclosure. Stainer v Palmer-Pilgrim 1982 (4) SA 205 (O) The principal’s liability for the fraud of an agent is not dependent upon the principal’s own fraudulent conduct or knowledge. Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 (4) SA 363 (A) A representation by a party unrelated to the party to the litigation is irrelevant.
(b)
Fraud (dolus directus or eventualis): This involves knowledge by the representor or the principal that the representation is false. Ruto Flour Mills (Pty) Ltd v Moriates 1957 (3) SA 113 (T)
[Page 184] It is not sufficient to allege that the representation was “false” because this means no more than that the representation was untrue. The mental element must be alleged. Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A) This element also encompasses the intention by the representor or the agent that the representee will act on the representation. (c)
Causation: That the representation induced the representee so to act. Bill Harvey’s Investment Trust (Pty) Ltd v Oranjegezicht Citrus Estates (Pty) Ltd 1958 (1) SA 479 (A) Hulett v Hulett 1992 (4) SA 291 (A) at 310–311 Thompson v S A Broadcasting Corporation [2001] 1 All SA 329 (A)
(d) If damages are claimed, that the representee suffered damages as a result of the fraud. As to the measure of damages, see: De Jager v Grunder 1964 (1) SA 446 (A) Ranger v Wykerd 1977 (2) SA 976 (A) Colt Motors (Edms) Bpk v Kenny 1987 (4) SA 378 (T) (e)
If reliance is placed on a fraudulent non-disclosure, facts giving rise to the duty to disclose must be set out. Hoffman v Moni’s Wineries Ltd 1948 (2) SA 163 (C) at 168 Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) at 924 It is also necessary to show that the duty to disclose was deliberately breached in order to deceive. Ozinsky NO v Lloyd 1992 (3) SA 396 (C) at 418 Fraud in contract: If the fraud led to the conclusion of a contract, cancellation of such contract may be claimed. Service v Pondart-Diana 1964 (3) SA 277 (D) On the other hand, the innocent party may elect to keep the contract alive and claim damages. Feinstein v Niggli 1981 (2) SA 684 (A) The innocent party is entitled to base the claim either on the contract or in delict. It makes a difference to the measure of damages to be applied. Prima Toy Holdings (Pty) Ltd v Rosenberg 1974 (2) SA 477 (C) Hunt v Van der Westhuizen 1990 (3) SA 357 (C) If cancellation of the contract is claimed, restitution must be tendered. Van Schalkwyk v Griesel 1948 (1) SA 460 (A) See: TENDER: BY A PLAINTIFF It is not possible to contract out of liability for fraudulent misrepresentation. Wells v SA Alumenite Co 1927 AD 69 Fraud and passing of ownership: If an owner parts with ownership as a result of a fraudulent misrepresentation, the transaction is voidable and ownership will pass and the property cannot be vindicated in the hands of an innocent third party. Dalrymple, Frank & Feinstein v Friedman (2) 1954 (4) SA 649 (W) Setting aside judgment on the ground of fraud: See : JUDGMENTS: SETTING ASIDE [Page 185] Exceptio doli : Fraud, as a defence, can be raised with the exceptio doli. An example is where a party places a particular construction upon a document and thereby induces another to enter into a contract. The inducer may not, thereafter, rely on the proper construction of the document but is bound to the construction represented to the other party. Sampson v Union & Rhodesia Wholesale Ltd (in liq) 1929 AD 468 Rand Bank Ltd v Rubenstein 1981 (2) SA 207 (W) The exceptio doli generalis died a sudden death. The exceptio cannot be used to regulate contractual relationships on the ground that the court considers that one party drove a hard or harsh bargain. Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) Bank of Lisbon & SA Ltd v De Ornelas 1988 (3) SA 580 (A) Liability of an agent: An agent, in addition to the principal, is liable for damages caused by the agent’s fraud. This liability is not joint and several with that of the principal. It may be necessary to excuss the principal before proceeding against the agent. Johnson v Jainodien 1982 (4) SA 599 (C) PRECEDENTS Claim – for cancellation 1. On [date] at [place], defendant represented to plaintiff that a certain motor vehicle [registration number] was a 1996 model [describe] motor car. 2. When making this representation, defendant knew it to be false in that he knew that it was in fact a 1992 model. 3. When defendant made the representation, he intended plaintiff to act thereon and to pay to him a purchase price of [amount] which was substantially in excess of the value of the vehicle. 4. Plaintiff was induced by the representation to purchase the vehicle at the price of [amount], whereas, had he known the true facts, he would not have purchased the vehicle at all. 5. As a result of defendant’s misrepresentation as aforesaid, plaintiff cancelled the agreement between the parties; alternatively, cancels it herewith. 6. Plaintiff tenders return of the vehicle to defendant against payment by defendant of the sum of [amount].
Claim – for damages 1. On [date] at [place], defendant, during the course of negotiations between the parties, represented to plaintiff that [detail]. 2. The representation was material and was made with the object of inducing plaintiff to enter into a contract with defendant in respect of the sale of defendant’s farm. 3. Following upon these negotiations, the parties entered into a written contract of sale on [date]. A copy of the agreement is attached hereto and marked “A”. 4. At the time of the negotiations and at the time of contracting, the representation was, to the knowledge of defendant, false in that the true facts were [detail]. In the alternative, plaintiff avers: (a)
5.
After the aforesaid negotiations and before the conclusion of the contract between the parties, defendant became aware of the falsity of the representations; alternatively, after the negotiations and before the conclusion of the contract between the parties, the circumstances changed to the knowledge of defendant so that, at the time of contracting, the true facts were as set out above.
[Page 186] (b) Defendant was aware that plaintiff did not know of the falsity of the representations and did not know of the changed circumstances. (c)
In the premises, defendant had a duty to inform plaintiff that the representations previously made by him were false or that the circumstances had changed as aforesaid.
(d) Despite this duty, defendant intentionally failed so to inform plaintiff. 6. As a result of defendant’s misrepresentation, plaintiff suffered damages in the sum of [amount] made up as follows: [detail] Pleadings/Amlers Precedents of Pleadings/I/Illegal Contracts Illegal Contracts General : An illegal contract must be distinguished from, first, a contract that is invalid because of non-compliance with statutory formalities and, second, an unenforceable contract. Contra bonos mores: A contract is illegal if it is against public policy or good morals. Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) Reeves v Marfield Ins Brokers CC 1996 (3) SA 766 (A) De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) In its modern guise, public policy is also rooted in the Constitution and the fundamental values enshrined therein. Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA); 2002 (6) SA 21 (SCA) par 18 Brisley v Drotsky 2002 (4) SA 1 (SCA) Contrary to law: A contract prohibited by common law or by statute is illegal. However, a contrary intention may appear from the statute. The prohibition may be express or implied. Swart v Smuts 1971 (1) SA 819 (A) ABSA Insurance Brokers (Pty) Ltd v Luttig NO [1997] 3 All SA 267 (A); 1997 (4) SA 229 (SCA) For a case of supervening illegality, see Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A) at 1205; [1997] 1 All SA 11 (A) Effect: An illegal contract is unenforceable (ex turpi causa non oritur actio). This rule is absolute and has no exceptions, even if there has been part performance. Jajbhay v Cassim 1939 AD 537 ABSA Insurance Brokers (Pty) Ltd v Luttig NO [1997] 3 All SA 267 (A); 1997 (4) SA 229 (SCA)
Pleading: A court may raise the question of illegality mero motu if such illegality appears ex facie the transaction or the surrounding circumstances, provided the court is satisfied that all the evidence relating to the illegality was led. A party wishing to rely on illegality must plead it. F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk [1998] 4 All SA 480 (SCA); 1999 (1) SA 515 (SCA) Bekker v Oos-Vrystaat Kaap Koöperasie Bpk [2000] 3 All SA 301 (A) [Page 187] If reliance is placed on an illegality flowing from a particular section of a statute, reference to the particular provision must be made in the relevant pleading or the defence must be so formulated that it is sufficiently clear on which statutory provision reliance is placed. If the illegality does not appear ex facie the transaction but arises from surrounding circumstances, the circumstances founding such illegality must be pleaded and the party relying on the facts must prove them. Yannakou v Apollo Club 1974 (1) SA 614 (A) at 623–624 Restitution: A party who has performed – whether in whole or in part – in terms of an illegal contract may reclaim such performance with the condictio ob turpem vel iniustam causam. First National Bank of South Africa Ltd v Perry NO [2001] 3 All SA 331 (A); 2001 (3) SA 960 (SCA) The condictio is an enrichment claim and the plaintiff must allege and prove: (a)
(b) (c)
a transfer of property or payment of money to the defendant. It is not only the person who receives with knowledge of the illegality but also one who learns of such illegality while still in possession who is liable to the plaintiff; that the transaction or its performance was illegal; that the defendant was unjustly enriched. This requirement will normally be satisfied if the defendant fails to perform her or his part of the “bargain”. Albertyn v Kumalo 1946 WLD 529 535
If the contract is invalid (but not illegal), the cause of action is the condictio indebiti. See : CONDICTIO INDEBITI Par delictum: A claim for restitution may be resisted by relying on the par delictum rule (in pari delicto potior est conditio possidentis). The defendant must allege and prove that the plaintiff was also in delicto – that is, that the plaintiff was a party to the illegality. MCC Bazaar v Harris & Jones (Pty) Ltd 1954 (3) SA 158 (T) Bhyat’s Departmental Store (Pty) Ltd v Dorklerk Investments (Pty) Ltd 1975 (4) SA 881 (A) It is then for the plaintiff to allege and prove facts that will enable the court to come to the her of his assistance because justice and public policy so require. Jajbhay v Cassim 1939 AD 537 Kelly v Wright, Kelly v Kok 1948 (3) SA 522 (A) Visser v Rousseau NO 1990 (1) SA 139 (A) PRECEDENTS Claim – based on enrichment 1. On [date], the parties entered into a written agreement in terms of which defendant sold to plaintiff a house situated at [address] for a sum of [amount]. A copy of the agreement is attached hereto and marked “A”. 2. On [date], plaintiff paid a deposit of [amount] to defendant and took occupation of the house. [Page 188] 3. The agreement between the parties is illegal and is thus null and void in terms of [set out statutory provision]. 4. At the time of entering into the agreement, neither party was aware of its illegal nature; alternatively, plaintiff was unaware thereof. 5. On [date], plaintiff was obliged to vacate the premises in terms of a court order to that effect. 6. In the premises, defendant was enriched at plaintiff’s expense in the sum of [amount], which amount defendant failed to pay to plaintiff.
Plea – of illegality Defendant admits that the parties purported to enter into the agreement as alleged. Defendant pleads, however, that the agreement is illegal and null and void for the following reasons: [detail] Plaintiff’s cause of action is for the enforcement of the purported agreement. Defendant, therefore, denies that plaintiff is entitled to enforce the said agreement.
1. 2. 3. 4.
Replication – relaxation of par delictum rule In the event of this court’s finding that the contract [detail] concluded between plaintiff and defendant or that performance in terms thereof is unenforceable by reason of a contravention of [statute], plaintiff alleges that: 1. At the time of entering into the contract, plaintiff was unaware of [statute] and of the possible illegality of the contract or its performance; 2. The defendant has been enriched at the plaintiff’s expense in the sum of [Rx] due to the plaintiff’s performance in terms of the allegedly void contract; 3. The contravention is of a technical nature and does not harm the public good; 4. The retention by the defendant of the said sum would be contrary to the interests of public policy and would amount to a grave injustice to the plaintiff. WHEREFORE plaintiff persists in his claim. Claim – relaxation of par delictum rule [From Henry v Branfield 1996 (1) SA 244 (D) at 251–252.] 1. In the event of this Court finding that the contract concluded between the plaintiff, the defendant and P is unenforceable by reason of: (a)
a contravention of the regulations promulgated under section 9 of the Currency and Exchanges Act 9 of 1933 and published in Government Notice R1111 of 1 December 1961 (as amended); or
(b) a contravention of the exchange control laws of Zimbabwe, the plaintiff pleads that at the time of entering into the contract, the plaintiff was unaware of: the regulations promulgated under section 9 of the Currency and Exchanges Act 9 of 1933; the exchange control laws of Zimbabwe, and that (aa)
(i) (ii)
there was no danger of the economic interests of the Republic of South Africa being prejudiced by the contract and its performance;
(bb) such contravention is merely technical in nature; 2. In the premises, the defendant has been enriched at the plaintiff’s expense in the sum of [Rx], which amount the defendant has failed to pay to the plaintiff. 3. In consequence of the payment to the defendant of the said sum, it would be in the interests of public policy, and prevent injustice to the plaintiff, if this honourable Court were to uphold the plaintiff’s claims. [Page 189] Pleadings/Amlers Precedents of Pleadings/I/Impossibility of Performance Impossibility of Performance
Initial impossibility: If, objectively speaking, performance of a contract is at its inception impossible, the contract is void. The only relief available is a claim for restitution, probably by means of a condictio indebiti. Peters Flamman & Co v Kokstad Municipality 1919 AD 427 Wilson v Smith 1956 (1) SA 393 (W) Bekker NO v Duvenhage 1977 (3) SA 884 (E) See : CONDICTIO INDEBITI Supervening impossibility: If performance of a contract becomes impossible through no fault of the debtor, the obligation is extinguished unless the contract stipulates that the debtor bears the risk of impossibility. Oerlikon SA (Pty) Ltd v Johannesburg City Council 1970 (3) SA 579 (A) at 585 Bischofberger v Van Eyk 1981 (2) SA 607 (W) Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A) at 1205; [1997] 1 All SA 11 (A) A debtor cannot rely on a supervening impossibility of performance that arose after mora. Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours [1998] 3 All SA 57 (W); 1998 (4) SA 802 (W) Performance may be reclaimed by means of the condictio sine causa. Hughes v Levy 1907 TS 276 See : CONDICTIO SINE CAUSA Partial impossibility: The creditor has a choice between accepting partial or defective performance or cancelling the contract. Bedford v Uys 1971 (1) SA 549 (C) Joubert v Bester 1977 (4) SA 560 (T) Temporary impossibility: A temporary impossibility does not automatically bring the contract to an end. Such termination depends on factors such as the materiality of the term involved and whether the final impossibility is inevitable. World Leisure Holidays (Pty) Ltd v Georges 2002 (5) SA 531 (W) Fault: The party relying on the impossibility of performance presumably bears the onus of alleging and proving that the impossibility is not her or his own fault. Grobbelaar NO v Bosch 1964 (3) SA 687 (E) Algoa Milling Co Ltd v Arkell & Douglas 1918 AD 145 PRECEDENTS Claim 1. On [date] at [place], the parties entered into a written agreement of sale, a copy of which is attached and marked “A”, in terms of which plaintiff sold to defendant one half of his farm known as [name], being agricultural land as defined by Act 70 of 1970. The sale involved a subdivision of agricultural land within the meaning of Act 70 of 1970.
2.
[Page 190]
3. In terms of section 3 of Act 70 of 1970, agricultural land cannot be subdivided without the consent of the minister. Due to no fault of plaintiff and after due application to the minister, consent to the subdivision was refused. Performance in terms of the agreement has therefore become impossible and the agreement has terminated.
4. 5.
6. Prior to the termination of the agreement, plaintiff gave possession of the said farm to defendant in terms of the agreement. 7. Because of the termination of the agreement, defendant is now obliged to vacate the farm. WHEREFORE plaintiff claims: An order for the eviction of defendant from the farm [name]. See now the Subdivision of Agricultural Land Act Repeal Act 64 of 1998. Pleadings/Amlers Precedents of Pleadings/I/Iniuria Iniuria Related subjects:
ARREST AND DETENTION ASSAULT DEFAMATION Cause of action: The actio iniuriarum grants relief for an impairment of the person, dignity or reputation of the plaintiff, which impairment is committed wrongfully and animo iniuriandi (intentionally). Gosschalk v Rossouw 1966 (2) SA 476 (C) at 490 Minister of Police v Mbilini 1983 (3) SA 705 (A) Sokhulu v New Africa Publications Ltd t/a “The Sowetan Sunday World” [2002] 1 All SA 255 (W); 2001 (4) SA 1357 (W) Under the Bill of Rights, it is no longer possible to draw a sharp distinction between the causes of action for impairment of reputation and the sense of self-worth. Khumalo v Holomisa 2002 (5) SA 401 (CC) at par 27 A plaintiff must allege and prove impairment of the relevant aspect of personality relied on. Bennett v Minister of Police 1980 (3) SA 24 (C) at 37 Privacy: Typical of the right protected is that of privacy. National Media Ltd v Jooste [1996] 2 All SA 510 (A);1996 (3) SA 262 (A) An invasion of privacy can take place by way of either an unlawful intrusion upon the personal privacy of another or the unlawful publication of private facts about a person. Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 462 A few examples illustrate the principle: (a) a bigamous marriage or an engagement by a married person; Snyman v Snyman 1984 (4) SA 262 (W) Arendse v Roode 1989 (1) SA 763 (C) (b) a degrading, humiliating or ignominious insult not amounting to defamation; Brenner v Botha 1956 (3) SA 257 (T) (c)
the unauthorised use of a person’s photograph in a humiliating manner; La Grange v Schoeman 1980 (1) SA 885 (E)
(d) the unauthorised disclosure of a person’s medical state by a physician; and Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) [Page 191] (e) the disclosure of the identity of an informer. Swanepoel v Minister van Veiligheid en Sekuriteit [1999] 3 All SA 285 (T); 1999 (1) SA 549 (T) Bodily integrity: Another right protected is the right to bodily integrity, which incorporates the right to mental wellbeing. Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 145–146 Parties: Although iniuria is generally the infringement of the right of personality of a natural person, it need not be so. A corporation, for instance, has a right to privacy and another to a good name. Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 460–461 One spouse has no claim against the other spouse for damages based on the actio iniuriarum. C v C 1958 (3) SA 547 (SR) A master may be liable for an iniuria committed by a servant, provided the necessary requirements for vicarious liability are present. Minister of Police v Mbilini 1983 (3) SA 705 (A) The cause of action expires with the death of the injured party prior to litis contestatio. A cessionary has no right of action because the right cannot be ceded. Government of RSA v Ngubane 1972 (2) SA 601 (A) Jurisdiction: The jurisdiction of a court is determined according to the principles applicable to delictual claims. Wrongfulness: The plaintiff must allege facts which, objectively speaking, are sufficient to lead to a reasonable inference of wrongfulness. It does not suffice merely to allege that the act was wrongful. Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A) Cf Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C) Therefore, if the words or acts complained of do not, in their ordinary connotation, have an injurious connotation, the plaintiff is obliged to allege and prove the special circumstances that make them wrongful.
Ciliza v Minister of Police 1976 (4) SA 243 (N) at 248 Once an act amounts prima facie to an infringement of a right of personality, the defendant must, as a general rule, justify the infringement. This means that the defendant must allege and prove the facts that give rise to such justification. Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 153 Animus iniuriandi : In the normal course, a plaintiff seeking damages based on the actio iniuriarum is required to allege and prove animus iniuriandi – ie, the intention to injure the plaintiff. The averment of animus iniuriandi can be implied from other allegations and need not be an express averment. Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A) Thus, an allegation of an “assault” implies an allegation of a wrongful act with the necessary animus iniuriandi. Bennett v Minister of Police 1980 (3) SA 24 (C) On the other hand, an allegation of animus iniuriandi may not suffice. The facts pleaded must be sufficient to lead to a reasonable inference of animus iniuriandi. Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A) [Page 192] The test for determining the reasonableness of the inference is an objective one. Dolus eventualis is sufficient. It is not customary or advisable to allege the type of dolus relied on. Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W) In spite of the fact that, in principle, the plaintiff bears the onus of proving animus iniuriandi, a defendant cannot place this allegation in dispute by a mere denial. The defendant must go further and allege the factual basis for the absence of animus iniuriandi. Ramsay v Minister van Polisie 1981 (4) SA 802 (A) Boswell v Union Club of SA (Durban) 1985 (2) SA 162 (D) Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 856 The absence of a “wederregtelikheidsbewussyn” is seldom (if at all) a defence. Ramsay v Minister van Polisie 1981 (4) SA 802 (A) at 818 Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) Malice: Although it used to be customary to allege malice, it is wrong to do so, because the motive of the defendant is irrelevant. All that is required is the legal intent to injure. Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A) at 104 In the context of a claim based on malicious proceedings, it can be assumed that malice must still be alleged and proved. Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196 See : MALICIOUS PROCEEDINGS Such a claim can be justified on the basis that legal proceedings can only be instituted wrongfully if malice is present. (However, in Prinsloo v Newman 1975 (1) SA 481 (A), it was assumed that, in the context of malicious proceedings, malice is the same as animus iniuriandi.) Breach of a contract: A breach of contract is not per se an iniuria. However, it can be if the breach is accompanied by contumelia. National Media Ltd v Jooste [1996] 2 All SA 510 (A);1996 (3) SA 262 (A) Bull v Taylor 1965 (4) SA 29 (A) Jockie v Meyer 1945 AD 354 It follows that a plaintiff must allege and prove additional facts that establish an iniuria. Ndamse v University College of Fort Hare 1966 (4) SA 137 (E) Edouard v Administrator, Natal 1989 (2) SA 368 (D) at 391 An doubtful exception is the rule that a trader may claim general damages with the actio iniuriarum if a banker, by dishonouring cheques, causes damage to the trader’s creditworthiness. Klopper v Volkskas Bpk 1964 (2) SA 421 (T) Damages: The main purpose of the actio iniuriarum is to recover sentimental damages. It is not necessary to quantify these damages for the purposes of pleadings. Patrimonial loss caused by an iniuria can be claimed even in the absence of animus iniuriandi. The cause of action is then the actio legis Aquiliae. Moaki v Reckitt & Colman (Africa) Ltd 1968 (1) SA 702 (W) at 704 [Page 193] In an action based on an injuria in which the plaintiff claims special damages, the requisites for a claim under the actio legis Aquiliae must be alleged and proved. Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N) at 487; 1998 (2) SA 319 (N)
As to apportionment of damages in the case of a delict intentionally caused, see: CONTRIBUTORY NEGLIGENCE An amende honorable is not a competent relief. But see Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) PRECEDENTS Claim – based on verbal abuse 1. On [date] at [place], defendant wrongfully and with the intent to injure the plaintiff, said the following words to and about plaintiff, namely: “You are a lazy and useless cow”. 2. Plaintiff was humiliated and degraded by these words and suffered damages as a result thereof in the sum of [amount] in respect of [detail]. Pleadings/Amlers Precedents of Pleadings/I/Injurious Falsehoods Injurious Falsehoods Related subject:
FRAUD LEX AQUILIA NEGLIGENT MISREPRESENTATION UNLAWFUL COMPETITION
Cause of action: An intentionally false statement concerning the plaintiff, which statement causes the plaintiff patrimonial loss or damages, grounds an action for damages. The claim is based on the lex Aquilia. Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) Schultz v Butt 1986 (3) SA 667 (A) at 678 The difference between this cause of action and one based on fraud lies basically therein that, in the case of fraud, a misrepresentation is made to the plaintiff whereas, in the case of injurious falsehoods, the misrepresentation made is of or about the plaintiff’s or defendant’s business. It is a species of unlawful competition. General rules of pleading: The false statement, in order to ground the action, does not have to be defamatory, although it must have been published to others of and concerning the plaintiff. The general rules of pleading relating to defamation claims apply – for example, the plaintiff must set out the words alleged to have been used by the defendant and is not entitled merely to state their effect. International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A) at 613 Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C) Essential allegations: The plaintiff must allege and prove that: (a) the defendant has by word or conduct (or both) made a false representation to others concerning the plaintiff; (b) the defendant knew the representation to be false; [Page 194] (c) (d) (e)
the plaintiff suffered damages as a result of the representation – for example, through the loss of business; the false representation is the cause of the loss; the defendant intended to cause the plaintiff loss by the false representation. Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) Helios Ltd v Letraset Graphic Art Products (Pty) Ltd 1973 (4) SA 81 (T) at 89 Abakor v Crafcor Farming t/a Riversdale Feedlot 2000 (1) SA 973 (N)
If the claim is for an interdict only, fault need not be alleged or established by the claimant. Aetiology Today CC v Van Aswegen 1992 (1) SA 807 (W) Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) R & I Laboratories (Pty) Ltd v Beauty Without Cruelty International 1990 (3) SA 746 (C) Falsity: An allegation of ‘falsity’ does not carry with it the implication that the defendant knew of the falsity. Knowledge of such falsity must be alleged specifically. Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A) A statement that the plaintiff’s goods are inferior to those of the defendant’s, even if false, is not necessarily actionable. It may amount to no more than puffing. Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd 1970 (1) SA 454 (T)
Animus iniuriandi : The statement that animus iniuriandi must be established, is not acceptable. GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 PRECEDENTS Claim – injurious falsehoods 1. Plaintiff was the manufacturer of cigarettes extensively marketed in South Africa bearing the trade mark [MAX]. 2. During the period 1951–1952, defendant, through its employees and agents, stated to diverse persons, including [name] on [date] at [place], that [MAX] cigarettes cause cancer whereas cigarettes manufactured by defendant do not. 3. Defendant thereby caused a rumour to spread amongst traders and the public generally that [MAX] cigarettes are more deleterious than other cigarettes in causing cancer amongst smokers. The said statement was false to the knowledge of defendant.
4.
5. By making the statement, defendant intended to spread a rumour and thereby to injure plaintiff in its trade and to benefit that of the defendant. 6. As a result of the statement and subsequent rumour, the public has desisted from purchasing [MAX] cigarettes and plaintiff was consequently obliged to cease the marketing thereof. 7. Plaintiff suffered damages due to defendant’s wrongful acts in the sum of [amount] calculated as follows: [detail]. [Based on International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A).] Claim – injurious falsehoods 1. Plaintiff is a distributor of sparkling wines such as 5th Avenue Cold Duck. 2. Since [date], defendant has been selling a product known as Monte Carlo Baby Duck as a sparkling wine. [Page 195] The said product is a perlé wine and the representation that it is a sparkling wine is false.
3.
4. By selling the product as a sparkling wine, defendant appropriated part of the sparkling wine market and diverted custom from, in particular, plaintiff. 5. The said misrepresentation by defendant diverts custom from plaintiff and plaintiff suffers damages as a consequence thereof. WHEREFORE plaintiff claims: An order interdicting defendant from representing in the course of trade that its Monte Carlo Baby Duck is a sparkling wine. [Based on Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C).] Pleadings/Amlers Precedents of Pleadings/I/Innocent Misrepresentation Innocent Misrepresentation Related subjects:
FRAUD NEGLIGENT MISREPRESENTATION
General: While an innocent misrepresentation which induced a party to agree to be bound by a contract may be relied on by that party in order to avoid that contract, it does not give rise to a claim for damages. Cockroft v Baxter 1955 (4) SA 93 (C) Fitt v Louw 1970 (3) SA 73 (T) If the contract is a sale, the aedilitian remedies are available – that is, a price reduction or a cancellation and restitution. Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A)
Janse van Rensburg v Grieve Trust CC [1999] 3 All SA 597 (C); 2000 (1) SA 315 (C) See : LATENT DEFECTS Other innocent misrepresentations do not provide a cause of action. Essentials: The essential allegations for avoiding a contract on the ground of an innocent misrepresentation are: (a) a representation; (b) which was false; (c) which was made by the defendant or by the defendant’s agent; (d) which is material; (e) which was intended to induce the person to whom it was made to enter into the transaction; and (f) that the representation did in fact induce the contract (causation). Novick v Comair Holdings Ltd 1979 (2) SA 116 (W) at 149 PRECEDENTS Claim – for cancellation of contract 1. On [date] at [place], defendant and plaintiff entered into an oral agreement of sale in terms of which defendant sold to plaintiff a certain [description] motor vehicle for the sum of [amount]. 2. Prior to the conclusion of the sale, defendant, with the intention of inducing plaintiff to purchase the vehicle, orally represented to plaintiff that it was in a mechanically sound condition. [Page 196]
3. Relying on the truth of the representation, which was material to the sale, plaintiff purchased the vehicle and paid defendant the purchase sum on delivery of the vehicle to him on [date]. The vehicle was not in a mechanically sound condition for the following reasons: [detail].
4.
5. By reason of the foregoing, plaintiff cancelled the sale on [date] at [place] per letter and tendered to return the vehicle to defendant against repayment of the purchase price. WHEREFORE plaintiff claims, repeating the tender: Repayment of [amount]. Pleadings/Amlers Precedents of Pleadings/I/Insolvency Insolvency Related subject: ACTIO PAULIANA Parties: Legal proceedings by or against an insolvent estate are to be in the name of the trustee. The trustee requires the authority of the master or of the creditors in order to litigate. If not properly authorised, the proceedings will not be invalid – however, the trustee runs the risk of having to pay the costs personally. Insolvency Act 24 of 1936 s 73(1) Patel v Paruk’s Trustee 1944 AD 469 Smith NO v Hattingh 1984 (2) SA 660 (C) If a trustee fails to take any steps to set aside any disposition of property under section 26, 29, 30 or 31 of the Insolvency Act, or for the recovery of compensation or a penalty under section 31, the proceedings may be taken by any creditor in the name of the trustee against an indemnification given to the trustee for all the costs of the proceedings. Insolvency Act 24 of 1936 s 32(1) Volkskas Bpk NO v Barclays Bank (DC & O) 1955 (3) SA 104 (T) SA Board of Executors & Trust Co Ltd (in liq) v Gluckman 1967 (1) SA 534 (A)
An insolvent may sue or be sued in her or his own name, without reference to the trustee of the estate, in any matter relating to status or any right, in so far as it does not affect the estate. Insolvency Act 24 of 1936 s 23 Grevler v Landsdown NNO 1991 (3) SA 175 (T) Marais v Engler Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais 1998 (2) SA 450 (E) at 453– 454 Lapsing of proceedings: Any civil legal proceeding instituted, before the sequestration of the estate, against a debtor lapses upon the expiration of three weeks from the date of the first meeting of the creditors in that estate, unless the claimant gave notice of an intention to continue with the proceedings. Insolvency Act 24 of 1936 s 75 Proceedings do not lapse as a result of the vacation, removal, resignation or death of a trustee. Insolvency Act 24 of 1936 s 76 Discretion: While sections 26, 29, 30 and 31 are formulated in a way which creates the impression that a court has a discretion, the court, in fact, has to grant the relief if the relevant section is applicable to the facts of the case. Gunn NNO v Barclays Bank, DCO 1962 (3) SA 678 (A) Disposition: The Act defines “disposition” as meaning any transfer or abandonment of rights to property and including a sale, lease, mortgage, pledge, [Page 197] delivery, payment, release, compromise, donation or any contract therefor, but not including a disposition in compliance with an order of court. Dabelstein v Lane and Fey NNO [2001] 1 All SA 532 (SCA); 2001 (1) SA 1222 (SCA) Disposition without value: A disposition of property not made for value may be set aside in terms of section 26. The plaintiff must allege and prove: (a)
a disposition made by the insolvent of property; Langeberg Koöperasie Bpk v Inverdoorn Farming & Trading Co Ltd 1965 (2) SA 597 (A)
(b) that the disposition was not made for value; Commissioner for Inland Revenue v Bowman NO 1990 (3) SA 311 (A) (c)
if the disposition was made more than two years before the sequestration of the estate, that, immediately after the disposition was made, the liabilities of the insolvent exceeded her or his assets. If, on the other hand, the disposition took place within two years of the sequestration, the trustee has no onus relating to the effect of the disposition. It is for the plaintiff to prove the date of the disposition.
The only statutory defence available to the defendant is, provided the disposition took place within two years of the sequestration, that, immediately after the disposition was made, the assets of the insolvent still exceeded the liabilities. Voidable preferences: The court may set aside a disposition as a voidable preference in terms of section 29. The plaintiff must allege and prove: (a)
a disposition by the insolvent; Langeberg Koöperasie Bpk v Inverdoorn Farming & Trading Co Ltd 1965 (2) SA 597 (A)
(b) of her or his property; Meyer NO v Transvaalse Lewendehawe Koöperasie Bpk 1982 (4) SA 746 (A) (c)
that the disposition took place not more than six months before the sequestration or, if the insolvent is deceased, six months before her or his death;
(d) that the disposition had the effect of preferring one of the creditors above another; Standard Finance Corp of SA Ltd (in liq) v Greenstein 1964 (3) SA 573 (A) Ensor NO v Nedbank Ltd 1978 (3) SA 110 (D) (e) that, immediately after the making of the disposition, the liabilities of the debtor exceeded the value of her or his assets. Lipschitz v Landmark Consolidated (Pty) Ltd 1979 (2) SA 482 (W) at 492–495 The only statutory defence available to a defendant is to allege and prove that: (a)
(b)
the disposition was made in the ordinary course of business; and Hendriks NO v Swanepoel 1962 (4) SA 338 (A) Ensor NO v Rensco Motors (Pty) Ltd 1981 (1) SA 815 (A)
the disposition was not intended to prefer one creditor above another. Pretorius NO v Stock Owners’ Co-operative Co Ltd 1959 (4) SA 462 (A) Gert de Jager (Edms) Bpk v Jones NO & McHardy NO 1964 (3) SA 325 (A) at 331 [Page 198] Undue preferences: The court may set aside a disposition as an undue preference in terms of section 30. The essentials are: (a) a disposition by the insolvent; (b) of her or his property; (c) at a time when her or his liabilities exceeded her or his assets; (d) with the intention of preferring any one of her or his creditors above another. (See authorities quoted earlier.) Cooper NO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) Collusive disposition: The court may set aside a collusive transaction and disposition in terms of section 31 if: (a)
the insolvent had entered into a collusive transaction with another; Gert de Jager (Edms) Bpk v Jones NO & McHardy NO 1964 (3) SA 325 (A)
(b) whereby he or she disposed; (c) of property belonging to her or him; (d) in a manner which had the effect either of prejudicing creditors or of preferring one of these creditors above another. In this instance, the following relief is available: (a) payment of any loss caused to the estate by the disposition; (b) a penalty which may be equal to the benefit the defendant could have derived from the disposition; (c) forfeiture of the defendant’s claim against the insolvent estate. Voidable sale of business: The matter is regulated by section 34. Silverstream Investments (Kranskop) CC v Ronbo Automotive CC [1996] 3 All SA 216 (D); 1997 (1) SA 107 (D) Kelvin Park Properties CC v Paterson NO [2001] 1 All SA 18 (SCA); 2001 (3) SA 31 (SCA) See the precedent below for the elements. PRECEDENTS Claim – setting aside disposition without value made within two years 1. On [date], the estate of [X] (the insolvent) was provisionally sequestrated by the high court of [province]. The order was made final on [date]. 2. On [date] [being not longer than two years before the date of sequestration], the insolvent paid to the defendant the sum of [amount] by way of donation. The aforesaid payment constituted a disposition as intended in section 26 of Act 24 of 1936. This disposition was not made for value. In the premises, the disposition is liable to be set aside in terms of section 26 of Act 24 of 1936.
3. 4. 5.
WHEREFORE plaintiff claims: An order that the disposition in terms of which the insolvent paid [amount] to defendant be set aside and that defendant be ordered to pay to plaintiff the sum of [amount]. [Page 199] Claim – setting aside disposition without value made more than two years On [date] and in the high court of [province], the estate of [X] was finally sequestrated.
1.
2. On [date] [being more than two years before the date of the sequestration], the insolvent paid to the defendant the sum of [amount] by way of donation. 3. The payment constituted a disposition in terms of section 26 of Act 24 of 1936. 4. This disposition was not made for value. 5. Immediately after the disposition, the liabilities of the insolvent exceeded his assets: [detail]. 6. In the premises, the disposition aforesaid is liable to be set aside in terms of section 26 of Act 24 of 1936. Claim – setting aside voidable preference [As above.]
1.
2. On [date] [being fewer than six months prior to the date of such sequestration], the insolvent paid to defendant the sum of [amount] in reduction of a claim by defendant against him for money lent and advanced. 3. Immediately after the payment, the liabilities of the insolvent exceeded the value of his assets [detail] and the payment had the effect of preferring defendant above the other creditors of the said insolvent. 4. In the premises, the aforesaid payment to defendant is liable to be set aside in terms of section 29 of Act 24 of 1936. Claim – relating to undue preference [As above.] On [date], the liabilities of the insolvent exceeded his assets. [Detail]
1. 2.
3. On the aforesaid date, the insolvent paid to the defendant the sum of [amount] in respect of his indebtedness to defendant for moneys lent and advanced to him by defendant. 4. The aforesaid payment was made by the insolvent with the intention of preferring defendant above his other creditors and the payment had the effect of so preferring defendant. In the premises, the payment to defendant is liable to be set aside in terms of section 30 of Act 24 of 1936.
5.
Claim – relating to collusive transaction 1. [As above.] 2. On [date], the insolvent and defendant entered into a written agreement of sale in terms of which defendant purported to purchase from the insolvent the latter’s retail grocer’s business situate at [address], together with the stock in trade and fixtures and fittings therein, for the sum of [amount]. A copy of the agreement is attached hereto. In terms of the agreement, the purchase price was to be paid as follows: (a)
3.
the sum of [amount] was to be set off against the alleged indebtedness of the insolvent to defendant arising out of money lent and advanced; (b) the sum of [amount] was to be paid on the signing of the agreement; (c) the balance of [amount] was to be paid in equal monthly instalments of [amount] free of interest. 4. As both the insolvent and defendant were aware, the insolvent was not indebted to defendant in any sum arising from any cause and the said agreement was a collusive agreement entered into between them with the intention of defrauding and prejudicing the insolvent’s creditors. 5. The business, stock, fixtures and fittings were, pursuant to the agreement, delivered to defendant on [date], and he paid the insolvent the sum of [amount] and two of the monthly instalments. [Page 200] 6. The disposition of the insolvent’s business, stock, fixtures and fittings, had the effect of prejudicing the insolvent’s creditors. If the disposition is not set aside, defendant will benefit in a sum of [amount] calculated as follows: [detail].
7.
WHEREFORE plaintiff claims: (a) An order setting aside the aforesaid disposition in terms of section 31 of Act 24 of 1936. (b) Ejectment from the said business and the delivery to the plaintiff of the stock in trade, fixtures and fittings therein. (c) (d)
An order declaring defendant to forfeit any claim he may have against the insolvent estate. Payment of the sum of [amount] by way of penalty.
Claim – relating to voidable sale of business 1. [As above.] 2. On [date], the insolvent sold his retail butcher’s shop carried on by him at [address], including the fixtures and fittings therein, to defendant for the sum of [amount] under a written agreement, Annexure “A” attached hereto, and transferred it to defendant on [date]. 3. The insolvent at no time published any notice of the transfer of the business in the Government Gazette or in a newspaper as provided for in section 34(1) of Act 24 of 1936. 4. The transfer, having taken place within six months of the sequestration of the insolvent, is voidable by the plaintiff in his capacity as trustee of the insolvent estate. 5. Plaintiff has elected to void the transfer. 6. Defendant refuses to vacate the business or to deliver to plaintiff the fixtures and fittings therein. WHEREFORE plaintiff claims: (a)
An order declaring the transfer of the business and fixtures and fittings by the insolvent to the defendant to be void.
(b) An order directing the defendant to vacate the business and to hand the fixtures and fittings therein to the plaintiff. Pleadings/Amlers Precedents of Pleadings/I/Insurance
Insurance The insurer: An insurance contract may be concluded only by a person registered as an insurer either under the provisions of the Long-term Insurance Act 52 of 1998 or the Short-term Insurance Act 53 of 1998. A claim based on an insurance policy ought, therefore, to allege that the insurer is a registered insurer in terms of either Act. Insurable interest: It is sometimes said that, unless the insured has an insurable interest, the contract is unenforceable because it is a wagering contract and that the absence of an insurable interest may be a good defence Gutman NO v Standard General Insurance Co Ltd 1981 (4) SA 114 (C) The other view is that the absence of an insurable interest is not a defence per se but only an element in determining whether the contract is one of insurance or one of wager. Phillips v General Accident Insurance Co (SA) Ltd 1983 (4) SA 652 (W) Steyn v AA Onderlinge Assuransie Assosiasie Bpk 1985 (4) SA 7 (T) Irrespective of which view is correct, there seems to be no reason why an insured has to allege or prove an insurable interest. If, however, the insurance cover is for damages suffered, the insured will have to allege and prove the [Page 201] loss suffered and, incidentally, the insurable interest. The extent of the insurable interest will be the extent of the loss suffered. Refrigerated Trucking (Pty) Ltd v Zive NO (Aegis Insurance Co Ltd, Third Party) 1996 (2) SA 361 (T) Manderson t/a Hillcrest Electrical v Standard General Insurance Co Ltd 1996 (3) SA 434 (D) Lynco Plant Hire & Sales BK v Univem Versekeringsmakelaars BK 2002 (5) SA 85 (T) Interpretation: The ordinary rules relating to the interpretation of contracts apply to the interpretation of insurance policies. Lehmbecker’s Earthmoving & Excavators (Pty) Ltd v IGI Ltd 1984 (3) SA 513 (A) Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A) at 38 Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London [2002] 4 All SA 355 (SCA); 2003 (2) SA 440 (SCA) The contra proferentem rule is often invoked. Price v IGI Ltd 1983 (1) SA 311 (A) Forfeiture clauses are restrictively interpreted. Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A) Subrogation: An insurer who has indemnified an insured has the right to step into the insured’s shoes without cession and to bring an action against a third party (the person who caused the insured’s loss) in the name of the insured and without the latter’s knowledge or consent. Commercial Union Ins of SA Ltd v Lotter [1999] 1 All SA 235 (A); 1999 (2) SA 147 (SCA) at 154 Duty to disclose: There is a duty on both the insured and the insurer to disclose to each other, prior to conclusion of the contract, every fact relative and material to the risk and the assessment of the premium. This duty relates to material facts of which the parties had actual or constructive knowledge prior to conclusion of the contract. A breach of the duty entitles the aggrieved party to avoid the contract. The duty as here formulated has replaced the jettisoned concept of uberrima fides. Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A) at 432 President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk 1989 (1) SA 208 (A) A party relying on such non-disclosure must allege and prove that: (a) the fact was not communicated to that party; Fransba Vervoer (Edms) Bpk v IGI Ltd 1976 (4) SA 970 (W) at 977 (b)
the fact was within the knowledge of the insured; Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A)
(c) the undisclosed fact was material – that is, a reasonable man would, on consideration of the relevant facts of the particulars case, have considered the undisclosed fact as being reasonably relative to the risk and to the assessment of the premium. Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A) at 435 Causation: The basic approach to questions of causation applies to this field, subject, possibly, to the provisions of the particular insurance policy. Napier v Collett 1995 (3) SA 140 (A) [Page 202] Condition precedent: So-called conditions precedent that are normally contained in insurance policies are usually not suspensive conditions at all but merely ordinary terms of the policy. It is not for the insured to allege compliance or fulfilment of these ‘conditions’: but it is for the insurer to allege and prove a breach of such conditions and a cancellation as a result of the breach. Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) Marine & Trade Insurance Co Ltd v Van Heerden NO 1977 (3) SA 553 (A)
Penderis & Gutman NNO v Liquidators, Short-Term Business, AA Mutual Ins Assocn Ltd 1992 (4) SA 836 (A) In the case of a true suspensive condition, the insured, in order to rely on the insurance contract, must allege and prove fulfilment of the contract. Warranties: An insured’s reply to the questions set out in the proposal form may form the basis of the contract and may constitute warranties made by her or him as to the accuracy of the answer. If the insured’s reply proves to be inaccurate, the insurer may repudiate the contract even if the insured was completely innocent and bona fide. It all depends on the terms of the contract. Heslop v General Accident, Fire & Life Assurance Corp Ltd 1962 (3) SA 511 (A) A long-term or a short-term policy is not invalidated, the obligation of the insurer is not excluded or limited, and obligation of the owner of the policy is not to be increased on account of any untrue representation made to insurer, regardless of whether such representation is warranted to be true, unless the incorrectness of representation is of such a nature as to be likely to have materially affected the assessment of the risk under policy at the time of issue or any reinstatement or renewal thereof. Long-term Insurance Act 52 of 1998 s 59(1) Short-term Insurance Act 53 of 1998 s 53(1) Qilingele v SA Mutual Life Assurance Society 1993 (1) SA 69 (A) Clifford v Commercial Union Insurance Co of SA Ltd 1998 (4) SA 150 (SCA) Liberty Life Association of Africa Ltd v de Waal NO 1999 (4) SA 1177 (SCA)
the the the the
A representation, also in this context, is a pre-contractual statement and not a term of the contract. The exception to the common-law rule created by this provision does not apply to warranties that are not based on such a representation. South African Eagle Insurance Co Ltd v Norman Welthagen Investments (Pty) Ltd 1994 (2) SA 122 (A) It is for the insurer to allege and prove a breach of a warranty. Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A) Rouwkoop Caterers (Pty) Ltd v IGI Ltd 1977 (3) SA 941 (A) Onus: The onus rests on the insured to allege and prove the facts necessary to bring her or him within the terms of the insurance. Eagle Star Insurance Co Ltd v Willey 1956 (1) SA 330 (A) at 334 Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London [2002] 4 All SA 355 (SCA); 2003 (2) SA 440 (SCA) If, for instance, the cover is against an accident, and the insurer denies that the insured was killed in an accident but alleges that he committed suicide, the onus remains on the plaintiff to prove that the death was caused by an accident and to exclude the probability of suicide. There is no onus upon the defendant (the insurer) to prove suicide. Aegis Insurance Co Ltd v Consani NO 1996 (4) SA 1 (A); [1996] 3 All SA 547 (A) [Page 203] When the promise (the insurance cover) is qualified by exceptions, the question of whether the plaintiff need prove facts which negative their application depends on whether the exception qualifies the whole of the promise or whether it excludes from its operation particular classes of cases which, but for the exception, would fall within the promise. When the promise is qualified by an exception which covers the whole scope of the promise, a plaintiff cannot make out a prima facie case, unless he or she brings him- or herself within the promise as qualified. On the other hand, if the exception merely excludes particular classes, the onus rests on the insurer. It is all a question of interpretation. Rabinowitz NNO v Ned-Equity Insurance Co Ltd 1980 (1) SA 403 (W) Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London [2002] 4 All SA 355 (SCA); 2003 (2) SA 440 (SCA) The onus on one party may be the same as that on the other with the result that the onus resting on the insurer may be of no practical consequence, on the facts of the case. Rabinowitz NNO v Ned-Equity Insurance Co Ltd 1980 (1) SA 403 (W) at 430 Insolvency of insured: Whenever an insurer is obliged to indemnify an insured in respect of any liability incurred by the latter toward a third party, the third party, on the sequestration of the insured’s estate, is entitled to recover from the insurer the amount of the insured’s liability to the third party, which amount may not exceed the maximum amount for which the insurer has bound itself to indemnify the insured. Insolvency Act 24 of 1936 s 156 Le Roux v Standard General Versekeringsmaatskappy Bpk 2000 (4) SA 1035 (SCA) Coetzee v Attorneys’ Insurance Fidelity Fund [2002] 4 All SA 509 (SCA); 2003 (1) SA 1 (SCA) Fraudulent claims: Even in the absence of a forfeiture clause, the fact that the claim is tainted with fraud is a complete answer to the claim. Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A) at 756 A fraudulent claim makes the contract voidable but does not affect accrued claims. Lehmbecker’s Earthmoving & Excavators (Pty) Ltd v IGI Ltd 1984 (3) SA 513 (A) It is for the insurer to allege and prove that the claim was fraudulent and to prove the consequent repudiation of the claim. Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk 1974 (2) SA 450 (A)
PRECEDENTS Claim – by insurer for recovery of indemnity paid 1. Plaintiff is [name] Insurance Company Limited, a company duly registered and incorporated with limited liability according to the company laws of the Republic of South Africa and having its principal place of business at [address]. Plaintiff is a registered insurer. 2. Defendant is [name]. 3. (a)
In terms of a written policy of insurance, plaintiff undertook to indemnify defendant for all damage or loss sustained by defendant in respect of a certain [description] motor vehicle [registration number].
(b) The said policy of insurance was of full force and effect during [state period]. [Page 204] 4.
(a) During [state period], the said motor vehicle was stolen. (b) On [date], defendant gave written notice of the loss to plaintiff.
5. (a) (b)
On or about [date], defendant represented to plaintiff that the motor vehicle had not been recovered. The said representation was, to the knowledge of defendant, false in that the said motor vehicle had been recovered.
(c) The representation was material and was made with the intention of inducing plaintiff to act thereon and to pay defendant a settlement figure of [amount]. (d) (e)
On [date], plaintiff paid defendant the agreed sum of [amount] being the loss sustained by defendant. But for the representation, plaintiff would not have paid defendant the sum of [amount].
Alternatively: (a)
(b)
6.
In the bona fide and reasonable but mistaken belief that defendant was entitled to payment of the sum of [amount] in terms of the policy of insurance referred to in paragraph 3 above, plaintiff paid defendant the said sum. Notwithstanding demand, defendant fails to repay plaintiff the said sum of [amount].
Claim – for compliance of terms of policy 1. Defendant is [name], a company incorporated in terms of the company laws of the Republic of South Africa with registered office at [place] which carries on business as a registered insurance company in terms of Act . . . . 2. On [date] at [place], the parties entered into a written agreement of insurance, in terms of which defendant undertook to insure plaintiff’s motor car, being [describe], against the risks mentioned in the contract, one of them being the theft of the vehicle. A copy of the agreement of insurance is attached hereto and marked “A”. 3. On [date], plaintiff’s said motor vehicle was stolen. 4. The value of the motor vehicle, calculated as provided for in the contract, is [amount]. 5. Plaintiff has duly notified defendant of the theft and has, in all other respects, complied with his obligations under the policy.
6. Despite this, defendant has refused to make any payments to plaintiff in respect of the theft of his motor vehicle. Claim – by executor under policy 1. Plaintiff institutes this action in her capacity as executrix in the estate of the late [X], duly appointed as such by the Master of the High Court in terms of letters of appointment [number]. During or about [date] at [place], the late [X] and defendant entered into a written agreement of insurance.
2.
3. Plaintiff is not in possession of a copy of the aforementioned written agreement of insurance, but annexes hereto: (a) as Annexure “A”, a copy of the relevant policy schedule; (b) as Annexure “B”, a specimen copy of the policy wording. 4. The following terms of the aforementioned written agreement of insurance are particularly relevant to this action: (a)
Defendant undertook to provide cover to the insured person as follows: If during any period of insurance an insured person sustains bodily injury which, independently of any other cause, results in the death, or permanent disablement, the company will pay to the insured person or his estate the compensation stated below.”
(b) The schedule of benefits provided that an amount of [Rx] became payable as compensation to the estate of the insured person [being the late X] should he sustain bodily injury which resulted in his death; [Page 205] (c) “bodily injury” was defined as follows: bodily injury shall mean injury which is caused by accidental means and which within twenty-four months from the date of the accident results in the insured person’s death, dismemberment or permanent disablement.” 5. On [date] at [place], a collision occurred between a motor vehicle driven by the late [X] and a motor vehicle driven by [Y]. 6. As a direct consequence of the aforesaid collision, the late [X] suffered a heart attack which caused his death on the same day. 7. During his lifetime, the late [X] complied with all his obligations in terms of the written agreement of insurance and, at the time of his death, the agreement was operative and effective. 8. Plaintiff in her capacity aforesaid duly gave defendant written notice, in terms of the provisions of the written agreement of insurance, of her claim for payment of the amount of [Rx]. 9. In the premises, defendant is obliged to pay to the estate of the late [X] the amount of [Rx], but, despite demand thereto, defendant refuses to do so. [Based on Oelofsen NO v Cigna Insurance Co of SA Ltd 1991 (1) SA 74 (T).] Plea – breach of warranty 1. The statements and answers contained in the application for insurance constituted the basis of the contract of insurance and were warranted by plaintiff to be true. 2. In answer to the question of whether any other application for insurance was pending, plaintiff replied in the negative. 3.
That answer was untrue because, on the same day, plaintiff applied for insurance with two other insurers and which applications were pending. 4. The incorrectness of the answer was of such a nature as to affect materially the assessment of the risk assumed by defendant under the said contract. Defendant consequently repudiated the contract on [date] as it was entitled to do.
5.
Plea – of material non-disclosure 1. Defendant admits the agreement as alleged. 2. At the time of entering into the agreement, plaintiff was aware of the following facts, namely: [detail]. 3. Plaintiff failed to inform defendant of these facts. 4. The said facts materially affected the risk and the value of the motor vehicle insured. 5. In the premises, defendant is entitled to avoid the contract which it hereby does. Pleadings/Amlers Precedents of Pleadings/I/Interest Interest Agreed interest: If parties agreed on a rate of interest or if the rate is regulated by trade custom, those facts must be alleged and proved. When interest begins to run: There is generally no obligation to pay interest until the debt becomes due and payable. Schenk v Schenk 1993 (2) SA 346 (E) at 351 It is necessary to allege when the interest claimed began to run. The cause of action for interest may flow from an express or implied stipulation for interest – ie, if the debtor is in mora ex re. In the absence of such a term, interest begins to run only if the debtor is in mora ex persona, which requires a demand. Service of the summons may serve as a demand. Turner & Wright v Versatile Pump & Foundry Works (Pty) Ltd 1953 (3) SA 556 (T) Commissioner for Inland Revenue v First National Industrial Bank Ltd 1990 (3) SA 641 (A) at 654 Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (SCA); 2001 (4) SA 551 (SCA) at par 80–86 [Page 206] If reliance is placed on a demand, the fact of the demand and its date must be alleged. Standard Bank of SA Ltd v Lotze 1950 (2) SA 698 (C) Prescribed rate of interest: A prescribed rate of interest is provided for in section 1 of the Prescribed Rate of Interest Act 55 of 1975. The rate is prescribed by the Minister of Justice and applies “if a debt bears interest and the rate at which the interest is to be calculated is not governed by any other law or by an agreement or a trade custom or in any other manner.” List v Jungers 1979 (3) SA 106 (A) The court may, on the ground of special circumstances relating to the particular debt, order otherwise. Prescribed Rate of Interest Act 55 of 1975 s 1 Such decision is at the court’s discretion. Volkskas Beleggingskorp Bpk v Oranje Benefit Society 1978 (1) SA 45 (A) at 60 Cf The MV Sea Joy: Owners of the Cargo Lately Laden on Board the MV Sea Joy v The MV Sea Joy [1997] 4 All SA 191 (C); 1998 (1) SA 487 (C) at 508 Compound interest: Compound interest can be claimed if an agreement to that effect is alleged. Interest may also be claimed on unpaid interest which was due and payable. Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A) Interest on judgment debt: Every judgment debt bears interest from the day on which the judgment debt is payable, unless the judgment or order states otherwise. “(1) Every judgment debt which, but for the provisions of this subsection, would not bear any interest after the date of the judgment or order by virtue of which it is due, shall bear interest from the day on which such judgment debt is payable, unless that judgment or order provides otherwise.
(2) Any interest payable in terms of subsection (1) of Act 55 of 1975 may be recovered as if it formed part of the judgment debt on which it is due. (3)
In this section “judgment debt” means a sum of money due in terms of a judgment or an order, including an order as to costs, of a court of law, and includes any part of such a sum of money, but does not include any interest not forming part of the principal sum of a judgment debt.” Prescribed Rate of Interest Act 55 of 1975 s 2 The word “payable” in subsection (1) means “due and payable”. Schenk v Schenk 1993 (2) SA 346 (E) Administrateur, Transvaal v JD van Niekerk en Genote BK 1995 (2) SA 241 (A) In duplum rule: Interest may not exceed the amount of the outstanding capital. LTA Construction Bpk v Administrateur, Transvaal 1992 (1) SA 473 (A) This is the basic rule and obtains irrespective of whether the interest has been capitalised by agreement. There is, however, an exception to the rule: the in duplum rule is suspended by pending litigation. But, once judgment has been granted, additional interest may run until it reaches the double of the capital amount outstanding in terms of the judgment. Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811 (SCA) at 834; [1998] 1 All SA 413 (SCA) If a plaintiff’s claim is based on a capitalised amount of capital and interest, it is unnecessary to establish that the claim does not infringe the rule. If the defendant raises the matter in the plea, it will be for the plaintiff to establish non-infringement. F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk [1998] 4 All SA 480 (SCA); 1999 (1) SA 515 (SCA) [Page 207] Usury: In any event, the interest claimed may not exceed that allowed by the Usury Act 73 of 1968. See : CREDIT AGREEMENTS C & T Products (Pty) Ltd v MH Goldschmidt (Pty) Ltd 1981 (3) SA 619 (C) Unliquidated and damages claims: At common law, claims which were not liquidated did not bear interest. Union Government v Jackson 1956 (2) SA 398 (A) at 412 The common law has been replaced by the introduction of section 2A into the Act by Act 7 of 1997. See, in general,The MV Sea Joy: Owners of the Cargo Lately Laden on Board the MV Sea Joy v The MV Sea Joy [1997] 4 All SA 191 (C); 1998 (1) SA 487 (C) “(1)
(2)
Subject to the provisions of this section the amount of every unliquidated debt as determined by a court of law, or an arbitrator or an arbitration tribunal or by agreement between the creditor and the debtor, shall bear interest as contemplated in section 1 of Act 7 of 1997. (a) Subject to any other agreement between the parties the interest contemplated in subsection (1) of Act 7 of 1997 shall run from the date on which payment of the debt is claimed by the service on the debtor of a demand or summons, whichever date is the earlier. (b)
In the case of arbitration proceedings and subject to any other agreement between the parties, interest shall run from the date on which the creditor takes steps to commence arbitration proceedings, or any of the dates contemplated in paragraph (a), whichever date is the earlier.
(3) The interest on that part of a debt which consists of the present value of a loss which will occur in the future shall not commence to run until the date upon which the quantum of that part is determined by judgment, arbitration or agreement and any such part determined by arbitration or agreement shall for the purposes of Act 7 of 1997 be deemed to be a judgment debt. (4)
Where a debtor offers to settle a debt by making a payment into court or a tender and the creditor accepts the payment or tender, or a court of law awards an amount not exceeding such payment or tender, the running of interest shall be interrupted from the date of the payment into court or the tender until the date of the said acceptance or award.
(5) Notwithstanding the provisions of Act 7 of 1997 but subject to any other law or an agreement between the parties, a court of law, or an arbitrator or an arbitration tribunal may make such order as appears just in respect of the payment of interest on an unliquidated debt, the rate at which interest shall accrue and the date from which interest shall run. (6)
The provisions of section 2(2) of Act 7 of 1997 shall apply mutatis mutandis to interest recoverable under this section.” “Demand” means a written demand setting out the creditor’s claim in such a manner as to enable the debtor reasonably to assess the quantum thereof. Prescribed Rate of Interest Act 55 of 1975 s 4 Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (SCA); 2001 (4) SA 551 (SCA) Appropriation of payments: Payments on an interest-producing debt must first be applied to the interest accrued and only thereafter in reduction of the capital. Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811 (SCA); [1998] 1 All SA 413 (SCA) [Page 208] Interest as damages: A party may not claim the loss of interest as a separate head of special damages over and above the legal rate, unless, in a contractual case, the loss of a higher rate was within the contemplation of the parties at the time of contracting or flowed naturally from the breach. Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 777G–779E Cf Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (SCA); 2001 (4) SA 551 (SCA) Suspension of interest: A pending appeal does not suspend the running of interest. General Accident Versekeringsmaatskappy SA Bpk v Bailey NO 1988 (4) SA 353 (A) Prayer for interest: A claim should contain a causa and a prayer for interest if an order for interest is sought. Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 692 Wedge Steel (Pty) Ltd v Wepener 1991 (3) SA 444 (W) PRECEDENTS Plea – in duplum 1. The defendant pleads that the claim for the balance outstanding on the defendant’s overdraft account consists of capital and accrued interest. 2. The defendant further pleads that the interest component of the claim as at the date of institution of the action exceeded the capital component. 3. The defendant is unaware of the extent of the excess and puts the plaintiff to the proof thereof and pleads that the excess of the claim should be disallowed. WHEREFORE plaintiff claims: (a)
Interest on the amount of [Rx] at the prescribed rate of [percentage] per annum as from [date] to date of payment; or
(b) Interest on the amount of [Rx] at the agreed rate of [percentage] per annum as from [date] to date of payment; or (c)
Interest on the amount of [Rx] at the prescribed rate of [percentage] per annum as from date of judgment to date of payment.
Pleadings/Amlers Precedents of Pleadings/I/Interpleaders Interpleaders General: The interpleader procedure enables a party who is, or may be, the subject of adverse claims by two or more parties to have the competing claims decided between the claimants and, thereby, to protect the interpleader applicant against costs. The matter is dealt with exhaustively in Uniform rule 58. Parties: An interpleader applicant may be a defendant, a prospective defendant or a sheriff who has attached property in execution. Each claimant must deliver particulars of claim and the court may then order which claimant will be the plaintiff and which the defendant. Uniform rule 58(6) [Page 209]
Interpleader notice: The interpleader notice must: (a) (b)
state the nature of the liability, property or claim which is the subject-matter of the dispute; call upon the claimants to deliver, within the time stated in the notice, being not less than 14 days from the date of service thereof, particulars of their claims; and
(c) state that, on a further date, being not less than 14 days from the date specified in the notice for the delivery of claims, the applicant will apply to court for the latter’s decision as to the applicant’s liability or to the validity of the respective claims. Uniform rule 58(3) Affidavit: The applicant must deliver with the interpleader notice an affidavit stating that the applicant: (a) claims no interest in the subject-matter in dispute other than for charges and costs; (b) does not collude with any of the claimants; (c) is willing to deal with, or act in regard to, the subject-matter of the dispute as the court may direct. Uniform rule 58(4) Payment and delivery: The applicant must simultaneously: (a) pay the money which is the subject of the conflicting claims to the registrar; or (b) tender delivery to the registrar the thing in question (if it is capable of delivery); or (c) place the title deeds of the immovable property, if available, in the possession of the registrar and file an undertaking to sign all documents necessary to effect transfer in accordance with any court order or agreement between the claimants. Particulars of claim: Each claimant must file particulars of her or his claim. The content of such particulars depends on the nature of the claim. The purpose of this statement is to acquaint the opponent with the tenor of the case so that such opposing party can decide whether to oppose the claim. A claimant is not expected to set out the claim with the precision required of a pleading. Corlett Drive Estates v Boland Bank Bpk 1979 (1) SA 863 (C) Free State Consolidated Gold Mines (Operations) Bpk v Sam Flanges Mining Supplies BK 1997 (4) SA 644 (O) Uniform rule 58(5) Court order: The court may, depending on the circumstances of the case, issue an order in terms of Uniform rule 58(6). For a form of order, see Free State Consolidated Gold Mines (Operations) Bpk v Sam Flanges Mining Supplies BK 1997 (4) SA 644 (O) at 656 [Page 210] PRECEDENTS
See: ACTIO AD EXHIBENDUM; VINDICATION.
Interpleader notice In as much as: (a)
the first claimant has instituted action against the applicant in the [name court] in which the first claimant claims payment of [Rx], being the amount due in terms of the building contract;
(b) the second claimant has informed the applicant that it lays claim to payment of the sum of [Rx] on the ground that the claim had been ceded to the second claimant; (c)
the sum of [Rx] consists of the balance of the money due and owing by the applicant in respect of the above; and
(d) the claims of the first and second claimants are adverse and mutually exclusive claims.
Now, therefore, the applicant notifies the claimants as follows: The applicant admits that it is liable for payment of [Rx] in respect of the building contract. The applicant will pay the amount of [Rx] to the registrar of the above court on delivery of this notice.
1. 2.
3. Each claimant is herewith called upon to deliver particulars of its claim to the said amount in terms of Rule 58 on or before [date]. 4. On [date], the applicant will apply for: (a) directions as to the proper forum for determining its liability to each claimant and the validity of the respective claims; or (b) (c)
a decision as to its liability to each claimant and the validity of the respective claims; and an order authorising the applicant to deduct from the amount paid in, the costs incurred subsequent to the date of this notice. [Based on Government of the Republic of South Africa v Midkon (Pty) Ltd 1984 (3) SA 552 (T) at 564– 565.]
Pleadings/Amlers Precedents of Pleadings/J/Joint Ownership Joint Ownership General: Where property is owned in joint ownership, each co-owner has an undivided share in the thing owned and a right to share it. The various shares need not be equal. Every co-owner is entitled to use the joint property reasonably and in proportion to its share. A co-owner is entitled to its proportionate share of profits derived from the property through, for example, the letting of the property. One co-owner is obliged to account to the other and bears the onus of proving that it is released from the duty to account. Pretorius v Botha 1961 (4) SA 722 (T) Termination of joint ownership: As a general rule, every co-owner is entitled to have the co-ownership terminated with the actio communi dividundo. Robson v Theron 1978 (1) SA 841 (A) A party claiming termination of co-ownership has to allege and prove: (a) the existence of joint ownership; (b) a refusal by the other to agree to a termination of the joint ownership, an inability to agree in respect of the method of termination, or an agreement to terminate but a refusal to comply with the terms of the agreement; Ntuli v Ntuli 1946 TPD 181 [Page 211] (c)
facts upon which the court can exercise its discretion as to how to terminate the joint ownership. The general rule is that the court will follow the method that is fair and equitable to both parties. Examples of such methods include a division of the property, if that can be done physically and legally; Badenhorst v Marks 1911 TPD 144 a sale by public auction and a division of the nett amount; Estate Rother v Estate Sandig 1943 AD 47 an allocation of the property to the one co-owner subject to payment of compensation to the other co-owner; and Robson v Theron 1978 (1) SA 841 (A) a private auction restricted to the co-owners and a division of the nett amount. Kruger v Terblanche 1979 (4) SA 38 (T)
Ancillary relief: The action may also be used to claim ancillary relief – for example, expenses incurred by one of the parties in connection with the joint property – or a claim to a share of the profits derived from the property. Robson v Theron 1978 (1) SA 841 (A) at 857 Rademeyer v Rademeyer 1968 (3) SA 1 (C) Defences: The defendant may rely on an agreement between the parties not to subdivide within a given period on an agreement between them as to the particular method of termination.
PRECEDENTS Claim – for termination 1. The parties are the joint owners in equal shares of a farm known as [name] in extent [size]. 2 Despite demand, defendant refuses to consent to the termination of the joint ownership of the farm. 3. The value of the farm is [amount]. 4. The farm is not subdivisible by virtue of the provisions of the Subdivision of Agricultural Land Act 70 of 1970. 5. Plaintiff has, at all times and with the consent of defendant, lived on and used the farm. Defendant has shown no interest therein. 6. Plaintiff tenders to pay to defendant the sum of [amount] being half the value of the farm against registration of defendant’s share in plaintiff’s name. But see the Subdivision of Agricultural Land Act Repeal Act 64 of 1998 (not yet in operation). WHEREFORE plaintiff claims: (a) An order that the co-ownership in the farm [name] be terminated. (b) That defendant’s half share be transferred and registered in plaintiff’s name against payment to defendant of [amount]; alternatively, that the honourable court determine a just and equitable method of terminating the joint ownership. [Page 212] Pleadings/Amlers Precedents of Pleadings/J/Joint Wrongdoers Joint Wrongdoers See : CONTRIBUTORY NEGLIGENCE Pleadings/Amlers Precedents of Pleadings/J/Judgments: Foreign Judgments: Foreign See : FOREIGN JUDGMENTS Pleadings/Amlers Precedents of Pleadings/J/Judgments: Setting Aside Judgments: Setting Aside The general principle is that a court that has duly pronounced a final judgment or order has no authority to correct, alter or supplement the judgment or order. The basic reason is that, upon pronouncement, the court becomes functus officio, its jurisdiction in the case has been fully and finally exercised and its authority over the subject-matter has ceased. Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) Judgment by default: The rules of court provide for the setting aside by way of application of a judgment granted where the defendant was in default. Uniform rule 31(2)(b) Magistrates’ Courts rule 49 The high court has, apart from the power granted by the rule, a common-law power to set aside a judgment granted by default. In such event, the procedural limitations of the rule do not apply and the common-law rules relating to the setting aside of other final orders also do not apply in all respects. De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) Uniform rule 42: This rule provides for the setting aside of a final order granted under special circumstances. The prescribed procedure is by way of application and a discussion of the rule falls outside the scope of this work. Setting aside under the common-law procedure: It appears to be settled that the procedure available to a party in setting aside a final order includes application and not only action proceedings. De Wet v Western Bank Ltd 1977 (4) SA 770 (T) at 776 Motor Marine (Edms) Bpk v Thermotron 1985 (2) SA 127 (SE)
Santos Erec v Cheque Discounting Co (Pty) Ltd 1986 (4) SA 752 (W) Grounds: The main ground under the common law for setting aside a final judgment is fraud to which the successful litigant was a party. Makings v Makings 1958 (1) SA 338 (A) The fraud must be of such a nature as to entitle the other party to restitution in integrum at common law. De Wet v Western Bank Ltd 1977 (4) SA 770 (T) As a general rule, a iustus error, even if induced by a non-fraudulent misrepresentation by the successful litigant, does not provide a cause of action for setting aside the judgment. Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 [Page 213] Essentials: In order to succeed in a claim for setting aside a final judgment because of fraud, a plaintiff must allege and prove that: (a) the successful party (or someone to his or her knowledge) gave incorrect evidence or misled the court or the other party in some other way; (b) (c)
fraud had been committed; and such fraud was material – that is, had the court known the true facts, it would have given a judgment different from the judgment it gave. Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 Rowe v Rowe [1997] 3 All SA 503 (SCA); 1997 (4) SA 160 (SCA)
Parties: A party claiming a rescission of a judgment need not have been a litigant in the original matter but must establish an interest in the matter sufficiently direct and substantial which interest would have entitled that party to have intervened in the matter in which the judgment was given. United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C) Correction of an order: A court may correct, alter or supplement its order under certain special circumstances. The recognised circumstances are: (a) to supplement the order in respect of accessory or consequential matters, such as costs and interest; (b) to clarify the order; (c) to correct a clerical, arithmetical or similar error so as to give effect to the true original intention; (d) if an order as to costs was made without argument, to reconsider that part of the order. Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) S v Wells 1990 (1) SA 816 (A) PRECEDENTS Claim – to set aside a judgment fraudulently obtained 1. On [date], this honourable court ordered the present plaintiff to pay the present defendant the sum of [amount], being damages suffered by defendant as a result of plaintiff’s alleged adultery during [period] with one [name], the defendant’s alleged wife, during the subsistence of their marriage, and costs. 2. Unbeknown to plaintiff, the court of [specify] had on [date] issued an order of divorce in the defendant’s favour. That court had jurisdiction to grant the divorce and its order was a final order. 3. Defendant, at all material times, was aware that the said court had validly dissolved the marriage between him and his said alleged wife prior to the date of the alleged adultery. 4. Defendant fraudulently failed to disclose this fact to this honourable court at the trial as he was in duty bound to do. 5. Defendant acted with the intention of misleading this honourable court and inducing it to believe that defendant and his said alleged wife were still married to each other when the alleged adultery occurred.
6. Had this honourable court been aware of the fact that the said marriage between defendant and his said alleged wife had already been lawfully dissolved, it would not have awarded any damages in defendant’s favour against plaintiff, but it was induced to do so by reason of defendant’s aforesaid fraudulent conduct. WHEREFORE plaintiff claims: That the order of this honourable court in [case number] given against plaintiff in favour of defendant on [date] be set aside. [Page 214] Pleadings/Amlers Precedents of Pleadings/J/Jurisdiction Jurisdiction The plaintiff: A plaintiff must allege and prove in all instances the facts necessary to establish that the court has jurisdiction in the matter and over the person of the defendant. It does not suffice to allege the legal conclusion of jurisdiction. Natalse Landboukoöperasie Bpk v Fick 1982 (4) SA 287 (N) SOS-Kinderdorf International v Effie Lentin Architects 1991 (3) SA 574 (Nm) Jasat v Interim National Medical and Dental Council [1998] 4 All SA 289 (N); 1999 (1) SA 156 (N) In the ordinary course of events, save in magistrates’ courts, it is not necessary to make any specific allegation concerning jurisdiction, provided that the underlying facts establishing jurisdiction are set out. For instance, once it is alleged that the defendant resides within the area of jurisdiction of the court, that is a sufficient prima facie allegation of jurisdiction for purposes of section 19(1)(a) of the Supreme Court Act 59 of 1959. Likewise, an allegation that the delict was committed within the area of jurisdiction is sufficient to bring the case under the other part of the provision, namely that a high court has jurisdiction in relation to all causes “arising” within its jurisdiction. In magistrates’ courts, however, the summons must set out sufficient facts establishing not only that the particular court has jurisdiction over the person of the defendant, but also in relation to the cause of action. The defendant: The absence of jurisdiction may be raised by a defendant (depending on the circumstances) by way of a special plea or by way of an exception. Dusheiko v Milburn 1964 (4) SA 648 (A) Spie Batignolles SA v Van Niekerk 1980 (2) SA 441 (NC) A defendant, who does not raise the absence of jurisdiction prior to litis contestatio, is deemed to have submitted to the court’s jurisdiction in the high court. Muller v Möller 1965 (1) SA 872 (C) A fuller discussion of the rules relating to jurisdiction falls outside the scope of this work. PRECEDENTS Special plea – alleging absence of jurisdiction Defendant denies that this honourable court has jurisdiction to grant a divorce by virtue of the fact that neither party is domiciled within its area of jurisdiction, the parties being domiciled at [place]. Special plea – alleging absence of jurisdiction Defendant denies that this honourable court has jurisdiction to hear plaintiff’s claim for damages because: (a) the collision which allegedly caused the damages occurred at [place], outside the area of jurisdiction of this court; and (b)
defendant is not ordinarily resident within the area of its jurisdiction but resides at [address].
[Page 215] Pleadings/Amlers Precedents of Pleadings/L/Latent Defects Latent Defects A seller may be held liable for latent defects in the object sold, depending on the facts, with the actio empti, the actio redhibitoria or the actio quanti minoris. Relief may be claimed in the alternative. Le Roux v Autovend (Pty) Ltd 1981 (4) SA 890 (N) Actio empti: Damages (with or without cancellation of the contract) for latent defects can be claimed with the actio empti. (The other two actions do not entitle the purchaser to damages.) This normally means that the plaintiff’s case must be based on a breach of contract. The presence of latent defects does not per se amount to a breach of contract.
The purchaser must not only allege and prove that the object had a defect which was latent, but also one or other of the following: (a) The seller expressly or impliedly warranted the absence of defects or the presence of the qualities lacking in the object sold. This involves proof of a term of the contract. Minister van Landbou-Tegniese Dienste v Scholtz 1971 (3) SA 188 (A) (b) The seller was the manufacturer of the article or a merchant or dealer who publicly professed to have attributes of skill and expert knowledge in relation to the kind of thing sold. This is really a manifestation of a tacit term. Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha 1964 (3) SA 561 (A) Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) Langeberg Voedsel Bpk v Sarculum Boerdery Bpk 1996 (2) SA 565 (A) Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd [2002] 2 All SA 525 (A); 2002 (2) SA 447 (SCA) (c)
The seller concealed defects of which he or she knew, or knowingly represented their absence. This is simply fraud in another form. Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A)
See further CONTRACT: DAMAGES for the other elements of the claim. Actio redhibitoria : This claim is for repayment of the purchase price and interest. The purchaser must allege and prove that: Mkize v Lourens 2003 (3) SA 292 (T) (a)
the object sold had a defect which, viewed objectively, substantially impaired that object’s utility or effectiveness for the purpose for which it was sold or for which it is commonly used; Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A) Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A)
(b) the defect existed at the time of sale; Seboko v Soll 1949 (3) SA 337 (T) at 350 (c)
the defect was latent – ie, it was not visible or discoverable upon inspection; Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 684
(d) the purchaser was unaware of the defect. The allegation that the defect was latent implies this element; Cullen v Zuidema 1951 (3) SA 817 (C) [Page 216] (e) objectively speaking, the purchaser would not have purchased the object had he or she known of the defect; (f) the purchaser is willing and able to effect restitution or that there are sufficient grounds why restitution should be excused. Hall-Thermotank Natal (Pty) Ltd v Hardman 1968 (4) SA 818 (D) Actio quanti minoris : A purchaser who is unable to prove the last two elements of the actio redhibitoria is nevertheless entitled to claim a price reduction with the actio quanti minoris. This reduction is the difference between the purchase price of the object and the value of the object with its defect. Labuschagne Broers v Spring Farm (Pty) Ltd 1976 (2) SA 824 (T) Janse van Rensburg v Grieve Trust CC [1999] 3 All SA 597 (C); 2000 (1) SA 315 (C) It is, therefore, necessary to allege and prove the actual value of the article sold. Grosvenor Motors Border Ltd v Visser 1971 (3) SA 213 (E) Sarembock v Medical Leasing Services (Pty) Ltd 1991 (1) SA 344 (A) If the sale was one by measure, the price reduction will be proportional. Welgemoed v Sauer 1974 (4) SA 1 (A) Voetstoots clause: The seller may rely on a voetstoots clause as a defence to relief under the aedilitian actions. The voetstoots clause is no defence in the event of fraudulent non-disclosure. The purchaser must allege and prove that the seller was aware of the latent defect when the contract was concluded, that he or she deliberately concealed such defect, bore a duty to disclose and failed so to disclose. Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A) at 870 Van der Merwe v Meades 1991 (2) SA 1 (A) Fraud does not remove the voetstoots clause from the contract: the seller remains entitled to rely on it to the extent that he or she acted honestly. Truman v Leonard 1994 (4) SA 371 (SE)
Exceptio quanti minoris : Although a defendant, in the plea to a claim for payment of the purchase price, may rely on a price reduction, the so-called exceptio quanti minoris is no defence unless the amount still due in terms of the contract is the same as or less than the price reduction to which the defendant is entitled. In the ordinary instance, quanti minoris must be claimed in a counterclaim. Davenport Corner Tea Room (Pty) Ltd v Joubert 1962 (2) SA 709 (D) Manufacturer: The liability of the manufactuer is aquilian. See : LEX AQUILIA Wagener v Pharmacare Ltd; Cutting v Pharmacare Ltd [2003] 2 All SA 167 (SCA) PRECEDENTS Claim – for cancellation or price reduction 1. On [date] at [place], the parties entered into an oral agreement in terms of which defendant sold to plaintiff a motor vehicle [describe] for a sum of [amount]. Plaintiff paid the purchase price to defendant upon delivery on [date].
2.
3. It was an implied term of the agreement that the vehicle would be free of latent defects and fit for use on a public road. [Page 217] At the time of the sale, the motor vehicle suffered from the following latent defects, namely [detail]. The aforesaid defects were of such a nature that the vehicle could not be used on a public road. Had plaintiff known of the defects, he would not have purchased the vehicle at all. Plaintiff tenders return of the vehicle to defendant against repayment of the sum of [amount].
4. 5. 6. 7.
8. Alternatively to the above, and if the honourable court finds that plaintiff was not entitled, by virtue of the latent defects, to reject the vehicle in its entirety, plaintiff avers that he would only have paid a purchase price of [amount] for the motor vehicle in the condition in which it was. WHEREFORE plaintiff claims: Repayment of the sum of [the purchase price] against delivery of motor vehicle [describe] to defendant; alternatively, payment of [amount] (being the difference between the purchase price and the price plaintiff would have paid for the vehicle). Claim – against expert vendor 1. On [date] at [place], the parties entered into an oral agreement of sale in terms of which plaintiff purchased from defendant a tractor, model [number]. The purchase price was [amount], which plaintiff paid to defendant on [date]. At all material times: (a) (b) (c)
2. 3.
defendant publicly held himself out to be an expert seller of farm machinery, including tractors; defendant knew that plaintiff required the tractor to plough his maize fields; defendant knew that plaintiff would suffer damages if the tractor had latent defects.
4. In the premises, the agreement between the parties contained an implied warranty against any latent defects which would render the tractor unfit for the purposes of ploughing maize fields. 5. At the time of sale, the tractor had the following latent defects:
[detail]. 6. As a result of the defects, the tractor was not fit to plough the said fields and was substantially unfit for any farm work. 7. By virtue of the latent defects and defendant’s breach of warranty relating thereto, plaintiff is entitled to cancel the agreement between the parties, which he hereby does, and he tenders return of the tractor to defendant. 8. As a result of defendant’s breach of contract as aforesaid, plaintiff has suffered damages in the amount of [amount], made up as follows: [detail]. Pleadings/Amlers Precedents of Pleadings/L/Lateral Support Lateral Support A landowner has a common-law right to lateral support for her or his land from the adjoining land. The right of support applies to the surface in its natural state and is not a right to the support of artificial constructions. Wrongfulness: The removal of lateral support is not, as such, a wrongful act. Liability only arises once damage to the plaintiff’s property takes place. For that reason, every subsidence gives rise to a fresh cause of action. Oslo Land Co Ltd v The Union Government 1938 AD 584 at 592 Gijzen v Verrinder 1965 (1) SA 806 (D) [Page 218] Subsidence: The plaintiff is entitled to relief, not only in the case of a subsidence, but also in the event of erosion caused by a disturbance of the natural surroundings of the ground. Gijzen v Verrinder 1965 (1) SA 806 (D) Fault: Fault is not an element of the action and the plaintiff is entitled to damages without alleging or proving fault. Absence of fault is, probably, no defence. Foentjies v Beukes 1977 (4) SA 964 (E) Relief: Damages and an interdict are claimable. Neither claims for prospective damages nor a mandatory interdict to prevent a future subsidence is available to the plaintiff. Gijzen v Verrinder 1965 (1) SA 806 (D) John Newmark & Co (Pty) Ltd v Durban City Council 1959 (1) SA 169 (N) PRECEDENT Claim – for damages 1. Plaintiff is the owner of [lot] in the township of [specify] in the district of [specify]. 2. Defendant is the owner of [lot] in the same township, which adjoins plaintiff’s property along its western side. 3. During the period [date] to [date], defendant excavated a hole on his property to a depth of [number] metres right up to the western boundary of plaintiff’s property. 4. In so doing, the defendant deprived the plaintiff’s property of the lateral support to which the plaintiff is entitled. 5. As a result of the removal of this lateral support, plaintiff’s land subsided along its western boundary and plaintiff suffered damages in the amount of [amount] calculated as follows: [detail]. Pleadings/Amlers Precedents of Pleadings/L/Leases Leases Related subjects: EVICTION OR EJECTMENT The contract: A party relying on a contract of letting and hiring must allege and prove a contract containing at least the following essential terms:
(a) an undertaking by the lessor to deliver a thing to the lessee; (b) an agreement between the parties that the lessee will have temporary use and enjoyment of the thing; and (c) an undertaking by the lessee to pay rent. Genac Properties Jhb (Pty) Ltd v NBC Administrators CC 1992 (1) SA 566 (A) Benlou Properties (Pty) Ltd v Vector Graphics (Pty) Ltd 1993 (1) SA 179 (A) Hurwitz NNO v Table Bay Engineering (Pty) Ltd 1994 (3) SA 449 (C) Engen Petroleum Ltd v Kommandonek (Pty) Ltd [2001] 1 All SA 636 (W); 2001 (2) SA 170 (W) Formalities: There are no formalities for the validity of leases. Rental Housing Act 50 of 1999 s 5(1) A long lease of land (excluding a lease covered by the Rental Housing Act) is not valid against certain third parties unless that lease has been registered or, if it is not registered, the third party had, at the relevant time, knowledge of the lease. Formalities in respect of Leases of Land Act 18 of 1969 s 1 [Page 219] Statutory rights: The Rental Housing Act contains provisions regulating the relationship between landlords and tenants. These leases are deemed to contain a number of clauses that may not be amended or waived. Rental Housing Act 50 of 1999 ss 4 and 5 The Act also provides for provincial Rental Housing Tribunals. Any tenant or landlord or group of tenants or landlords or interest group may, in the prescribed manner, lodge a complaint with the Tribunal concerning an unfair rental practice. Rental Housing Act 50 of 1999 s 13 Arrear rental: A lessor claiming arrear rental must allege: (a) (b) (c)
the contract; fulfilment of the lessor’s duties in terms of the contract, especially the duty to deliver the thing to the lessee; non-payment of the rent.
The plaintiff bears the onus of proof, except that it will be for the lessee to allege and prove payment. Ramnath v Bunsee 1961 (1) SA 394 (N) Ejectment:
See : EVICTION OR EJECTMENT; VINDICATION
Cancellation: A lessor relying on cancellation of the contract must allege and prove the breach of the contract. For instance, a lessor who relies on a late payment of rent bears the onus of proving that the payment was late. Schnehage v Bezuidenhout 1977 (1) SA 362 (O) The lessor must also allege and prove her or his right to cancel the lease. If there is no cancellation clause ( lex commissoria) in the contract, mora and a proper cancellation must be shown. Goldberg v Buytendach Boerdery Beleggings (Edms) Bpk 1980 (4) SA 775 (A) Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A) Distinct Investments (Pty) Ltd v Arhay CC; Bloom v Das Neves [1997] 2 All SA 513 (W) A material breach of contract may also lead to cancellation. Spies v Lombard 1950 (3) SA 469 (A) The lessor must also allege and prove cancellation – ie, the election to cancel – and timely notification to the tenant. Brits v Coetzee 1967 (3) SA 570 (T) Swart v Vosloo 1965 (1) SA 100 (A) In spite of the fact that the contract has been cancelled, the lessor is still entitled to claim the rent accrued before termination of the contract. Bester v Van Zyl 1972 (4) SA 580 (T) Damages: A lessor who claims damages on the ground of the lessee’s failure to return the let property in the condition in which it was delivered, must allege and prove that the property was damaged during the currency of the lease. The lessee may escape liability if he or she alleges and proves that the damage was not caused by her or his fault. Nel v Dobie 1966 (3) SA 352 (N) The same principle applies to a claim based on the lessee’s failure to return the property at all. It is for the lessee to prove that the let object was not lost as a result of her or his negligence.
Manley Van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai Safaris & Film Productions (Pty) Ltd 1977 (2) SA 416 (A) [Page 220] Where a plaintiff claims damages resulting from the defendant’s failure to return the property in the same condition in which the latter received it, it is not sufficient to allege and prove the cost of the repair of the property. It may be necessary to allege and prove facts showing that plaintiff suffered actual financial loss – for example, a deterioration in the market value of the property. Isep Structural Engineering & Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981 (4) SA 1 (A) Dubitante: Mostert NO v Old Mutual Life Assurance Co (SA) Ltd [2001] 4 All SA 250 (A); 2001 (4) SA 159 (SCA) As part of the damages, the lessor may claim compensation for the loss of rental for the remaining period of the lease. The onus rests on the lessor to show the amount that should be credited to the lessee in respect of the reversion to the lessor of the right to sublet. If the premises are unlettable or if the only rental obtainable is not one the lessor could reasonably be expected to accept, the lessee is not entitled to any credit. Commercial Careers College (Pvt) Ltd v Forest View (Pvt) Ltd 1979 (2) SA 402 (RA) Holding over: If, when the contract comes to an end, the lessee fails to return the thing let, the lessor is entitled to claim damages for holding over. There is some authority that suggests that the amount of damages would be the same as the agreed rental. This position is not necessarily correct. The plaintiff must allege and prove the market rental value of the premises for the period of the unlawful occupation and must show, at least prima facie, that the premises were, in fact. lettable. Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd 1985 (1) SA 248 (W) The effect of the holding over may be the tacit conclusion of a new agreement between the parties on many of the terms of the old agreement. This is known as tacit relocation of the agreement. Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC [2002] 2 All SA 551 (SCA); 2002 (1) SA 822 (SCA) Nedcor Bank Ltd v Withinshaw Properties (Pty) Ltd 2002 (6) SA 236 (C) Counterclaims: A lessor’s claim for ejectment cannot be stayed by a counterclaim for, for example, compensation for improvements, because such a counterclaim has no bearing on the main claim. Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk 1984 (3) SA 760 (N); 1986 (1) SA 448 (A) Palabora Mining Co Ltd v Coetzer 1993 (3) SA 306 (T) A claim for rental in respect of a lease which is current may be stayed by means of a counterclaim for damages whilst the lessee is still in occupation of the property. Ntshiqa v Andreas Supermarket (Pty) Ltd 1997 (1) SA 184 (Tk) and, on appeal to the full court, 1997 (3) SA 60 (Tk) Thompson v Scholtz [1998] 4 All SA 526 (A); 1999 (1) SA 232 (SCA) Rent-controlled premises: The Rent Control Act 80 of 1976 Repealed Act Act 80 of 1976 has been repealed by s 18 of Act 50 of 1999 has been repealed by the Rental Housing Act. Unfair practices under the Act are dealt with by the Rental Housing Tribunals. Landlord’s hypothec: The lessor has a hypothec over the goods of third parties on the leased premises as security for outstanding rental, if the following can be established: (a) the goods must be on the leased premises with the knowledge and consent of the third party; [Page 221] (b) (c) (d)
the lessor must be unaware of the fact that the goods are owned by the third party; the goods must have been brought onto the property for the use of the lessee; and the goods must have been intended to remain on the premises indefinitely. Paradise Lost Properties (Pty) Ltd v Standard Bank of SA (Pty) Ltd 1997 (2) SA 815 (D)
PRECEDENTS Claim – for arrear rental and cancellation 1. On [date] at [place], the parties entered into a written agreement of lease in terms of which plaintiff let to defendant a property situate at [address] at a monthly rental of [amount]. A copy of the deed of lease is attached hereto and marked “A”.
2. On [date], defendant took occupation of the premises and has been in occupation since then. 3. Despite demand, defendant has failed to pay the rental for the months of [specify] to [specify]. 4. In terms of clause [number] of Annexure “A”, plaintiff is entitled, upon non-payment of rental, to cancel the agreement upon 14 days’ notice. 5. Notice in terms of clause [number] was given to defendant on [date], a copy of which notice is attached hereto and marked “B”. 6. Despite due notice, defendant has failed to rectify his breach of contract or to vacate the premises. 7. Plaintiff duly cancelled the agreement on [date] by [detail]. WHEREFORE plaintiff claims: (a) (b)
Payment of [amount], being the arrear rental to date of cancellation. Ejectment of defendant from the premises.
Claim – for damages caused by lessee 1. On [date] at [place], the parties entered into an oral agreement of lease in terms of which plaintiff let to defendant his house situate at [address] for a period of [state period] at a rental of [amount] per month. 2. It was an express, alternatively implied, term of the lease that, at the termination thereof, defendant would return the house to plaintiff in the same condition as it was upon delivery thereof to defendant. 3. The lease terminated by effluxion of time on [date] and defendant vacated the premises on the same day. 4. Defendant, however, failed to return the house in the same condition as it was upon delivery to him, the house having been damaged in the following respects: [detail]. 5. As a result of defendant’s failure as aforesaid, plaintiff suffered damages in the amount of [amount], calculated as follows: [detail]. [Page 222] Pleadings/Amlers Precedents of Pleadings/L/Lex Aquilia Lex Aquilia Related subjects:
CONTRIBUTORY NEGLIGENCE DAMAGES MOTOR VEHICLE ACCIDENTS NEGLIGENCE STATUTORY DUTY OR AUTHORITY: BREACH OF VOLENTI NON FIT INIURIA
Cause of action: The actio legis Aquiliae enables a plaintiff to recover patrimonial loss (including purely economic loss) suffered through a wrongful and negligent act of the defendant. Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N) Its principles also apply to a claim for damages suffered as a result of bodily injuries to or the death of another person (for example, a breadwinner). Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) Wrongful act or omission: Liability depends on the wrongfulness of the act or omission of the defendant.
The plaintiff must allege facts from which wrongfulness can be inferred. If wrongfulness can be implied from the allegation that the defendant negligently caused the plaintiff damage, it is not customary to allege separately that the act or omission was wrongful. This is usually the case where physical damage was caused. If, on the other hand, wrongfulness cannot be inferred from the nature of the loss suffered, which will be the case if the plaintiff claims for a loss resulting from an omission or for pure economic loss, the defendant’s legal duty towards the plaintiff must be defined and the breach alleged. Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 378 Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 496–498 Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (N) at 757 Trope v SA Reserve Bank 1992 (3) SA 208 (T) Minister of Law and Order v Kadir 1995 (1) SA 303 (A) BoE Bank Ltd v Ries [2002] 2 All SA 247 (A); 2002 (2) SA 39 (SCA) Wrongfulness can manifest itself in different ways – for example, as the breach of a: (a)
common-law right; Osborne Panama SA v Shell & BP SA Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A) at 900
(b) particular statutory duty; or Callinicos v Burman 1963 (1) SA 489 (A) at 497–498 Da Silva v Coutinho 1971 (3) SA 123 (A) Dorland v Smits [2002] 3 All SA 691 (C); 2002 (5) SA 374 (C) (c)
duty of care. Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A)
[Page 223] The duty of care may arise from the provisions of the Bill of Rights. For instance, the State has a positive duty to protect individuals from violence; and the State’s failure to do so may give rise to liability. Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA); 2002 (6) SA 431 (SCA) Van Eeden (formerly Nadel) v Minister of Safety and Security [2002] 4 All SA 346 (SCA); 2003 (1) SA 389 (SCA) Duty of care: If the duty of care relied on is a general one owed to the public as a whole (for example, the duty on every driver not to drive a vehicle at an excessive speed), it need not be specifically pleaded. It is sufficient to allege that the driver was negligent in so acting. If a specific breach of duty (for example, a banker’s duty to the plaintiff who is not a client, or a public authority’s duty) is relied on, the nature of the duty must be stated. SAR&H v Marais 1950 (4) SA 610 (A) Hawker v Prudential Assurance Co of SA Ltd 1987 (4) SA 442 (C) at 450 For examples, see Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) at 83 Barlow Rand Ltd v Lebos 1985 (4) SA 341 (T) Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) The inquiry into the existence of the legal duty is discrete from that into negligence. Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) A mere allegation that the defendant was under a duty of care is insufficient, because the existence of a duty to prevent loss is a conclusion of law depending on all the circumstances of the case. Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27 The plaintiff must allege and prove the act or omission on which the cause of action is based. Omissions: Liability for an omission no longer arises only where the plaintiff alleges and proves that the defendant, by a prior positive conduct, created a potential risk of harm and thereafter failed to take reasonable steps to prevent the risk’s materialising. Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) Cape Town Municipality v Bakkerud [2000] 3 All SA 171 (A); 2000 (3) SA 1049 (SCA) The question is whether the defendant had a legal duty towards the plaintiff to act. Minister van Polisie v Ewels 1975 (3) SA 590 (A) Minister of Law and Order v Kadir 1995 (1) SA 303 (A) Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA); 2002 (6) SA 431 (SCA) Van Eeden (formerly Nadel) v Minister of Safety and Security [2002] 4 All SA 346 (SCA) The general norm is that, where conduct takes the form of an omission, such conduct is prima facie lawful. ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA); 2003 (1) SA 176 (SCA)
[Page 224] Negligence: The plaintiff must allege and prove that the defendant was negligent. Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T) This subject is dealt with in detail under NEGLIGENCE. Causation: The plaintiff must allege and prove the causal connection between the negligent act relied on and the damages suffered. Minister of Police v Skosana 1977 (1) SA 31 (A) Blyth v Van den Heever 1980 (1) SA 191 (A) at 208 Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (N) at 755 Du Plessis NO v Phelps 1995 (4) SA 165 (C) at 171–172 De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA) Damages will not be recoverable if they (and their extent or nature) were not foreseeable or were too remote. This means that, even if it has been established, factual causation may not be enough to establish liability. There still has to be legal causation. Kruger v Van der Merwe 1966 (2) SA 266 (A) Botes v Van Deventer 1966 (3) SA 182 (A) Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A) International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700–701 Smit v Abrahams 1994 (4) SA 1 (A) Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) Thoroughbred Breeders’ Association of South Africa v Price Waterhouse [2001] 4 All SA 161 (A); 2001 (4) SA 551 (SCA) The course of the causal connection need not be foreseeable. Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101 (A) Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) at para 22 If different negligent acts have caused different damage, each defendant is liable for the loss caused by her or him only. Minister of Communications & Public Works v Renown Food Products 1988 (4) SA 151 (C) When the unlawful and negligent act or omission in fact caused the plaintiff’s damage, the defendant may allege and prove that the damage would, in any event, have occurred. The defence is in the nature of a confession and avoidance. Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA 455 (A); 1997 (1) SA 157 (A) at 170–171 Exemption clauses: A defendant may rely on a contractual exemption clause as a defence to a delictual claim. In such a case, the defendant bears the onus of proving the terms of the contract. Durban’s Water Wonderland (Pty) Ltd v Botha [1999] 1 All SA 411 (A); 1999 (1) SA 982 (SCA) Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA); 2002 (6) SA 21 (SCA) Damages: It is for the plaintiff to allege and prove the extent of the damages suffered. Erasmus v Davis 1969 (2) SA 1 (A) For a full discussion, see : DAMAGES, MOTOR VEHICLE ACCIDENTS. [Page 225] PRECEDENTS Claim – for damages to motor vehicle 1. At all times relevant hereto, plaintiff was the owner of a certain [description] motor vehicle [registration number]. 2. On [date] at [place], a collision occurred between plaintiff’s aforesaid motor vehicle and a motor vehicle [registration number] then and there driven by defendant. 3. The said collision was occasioned solely as a result of the negligent driving of defendant, who was negligent in one or more of the following respects: (a) he failed to keep a proper look out; (b) he failed to apply his brakes timeously or at all;
(c) he drove his motor vehicle at an excessive speed under the prevailing circumstances. 4. As a result of the said collision, plaintiff’s aforesaid motor vehicle was damaged beyond economical repair and plaintiff suffered damages in the sum of [amount], being the difference between the pre-accident value of [amount] and the salvage value of [amount] of the wreck. 5. Notwithstanding demand, defendant fails to pay plaintiff the sum of [amount]. Claim – for loss of production 1. On [date] at [place], while defendant was in the process of building a road, a bulldozer, which was then being driven by an employee of defendant, acting within the course and scope of his employment, cut certain electrical cables. 2. The incident described was caused by the negligence of the driver of the said bulldozer, acting as aforesaid, who was negligent in one or more of the following respects: (a) he failed to keep a proper lookout; (b) he drove the bulldozer without due care and attention; (c) knowing that there were electrical cables in the vicinity, he failed to ensure that, in driving and operating the bulldozer, he allowed sufficient clearance to ensure that he caused no damage to such cables. 3. Alternatively to paragraph 2 hereof, the incident was caused by the negligence of defendant who was negligent in one or more of the following respects: (a) it failed to ascertain the precise whereabouts of the cables; (b) it failed to take adequate precautions for the protection of the cables. 4. When the incident described, occurred, defendant knew or ought to have known that: (a) the electrical cables were used to supply electricity to industries in the vicinity, including plaintiff ’s brickworks; (b)
if the said electrical cables were cut, the effect would be to interrupt the supply of electricity to plaintiff ’s works;
(c) if the supply of electricity were cut, plaintiff would suffer a loss of production and, hence, income. 5. As a direct consequence of the incident and of the negligence: (a) the electrical supply to plaintiff ’s said works was cut off for a period of [state period]; (b) plaintiff suffered a loss of production and consequently suffered damages. 6. As a result of the foregoing, plaintiff ’s damages are calculated as follows: Loss in production [detail]. In the premises, defendant is obliged to pay to plaintiff the sum of [amount]. [Based on Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D).] [Page 226] Pleadings/Amlers Precedents of Pleadings/L/Liens
7.
Liens Salvage and improvement liens: These liens provide dilatory defences against a rei vindicatio. If successfully raised, the owner may not recover possession of the property from a person who is lawfully in possession and who has an underlying valid enrichment claim, unless and until the defendant has been compensated. Singh v Santam Insurance Ltd [1997] 1 All SA 525 (SCA); 1997 (1) SA 291 (SCA) A lien does not ground a cause of action. Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A) Nor does it entitle the possessor to use the object: he or she is entitled to hold it as security only. Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider Health & Fitness Centre [1996] 4 All SA 29 (C); 1997 (1) SA 646 (C) The defendant must allege and prove: (a)
lawful possession of the object; Roux v Van Rensburg [1996] 3 All SA 499 (A); 1996 (4) SA 271 (SCA)
(b) that the expenses were necessary for the salvation of the thing or useful for its improvement; (c) the actual expenses and the extent of the enrichment of the plaintiff. Both have to be given because the lien covers the lesser of the two amounts only; (d) (e)
that the plaintiff’s enrichment is iniusta (unjustified); that there was no contractual arrangement between the parties (or a third person) in respect of the expenses. Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A) Oceana Leasing Services (Pty) Ltd v BG Motors (Pty) Ltd 1980 (3) SA 267 (W) Wynland Construction (Pty) Ltd v Ashley-Smith 1985 (3) SA 798 (A) Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd [1996] 3 All SA 1 (A); 1996 (4) SA 19 (SCA) McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (A); 2001 (3) SA 482 (SCA)
Debtor and creditor liens: This type of lien provides a similar defence but depends on a debtor-creditor relationship between the parties. It differs from salvage and improvement liens in the following respects: (a)
it can be enforced against a party to the contract only; Wynland Construction (Pty) Ltd v Ashley-Smith 1985 (3) SA 798 (A)
(b) it covers all the improvements effected in terms of the agreement, even if they are of a luxurious nature; Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A) (c)
it may be used to recover or enforce payment of the contract price and nothing more. The enrichment of the plaintiff is irrelevant. Van Niekerk v Van den Berg 1965 (2) SA 525 (A)
A typical example of a debtor and creditor lien is the lien an attorney has over a client’s documents. Benson v Walters 1984 (1) SA 73 (A) at 89 Botha NO v EM Mchunu & Co 1992 (4) SA 740 (N) Alternatives: Reliance may be placed on the two liens in the alternative but, in such an event, the primary case must be the debtor and creditor lien. D Glaser & Sons (Pty) Ltd v The Master NO 1979 (4) SA 780 (C) [Page 227] Discretion: A court has the discretion to order the release of the goods against provision of security for the defendant’s claim. Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd 1968 (1) SA 571 (A) Peter Cooper & Company (Previously Cooper and Ferreira) v De Vos [1998] 2 All SA 237 (E) Mancisco and Sons CC (in liq) v Stone 2001 (1) SA 168 (W) Possession: Loss of possession destroys a lien, which is not revived by recovery of possession. Rand Bank Bpk v Regering van die RSA 1975 (3) SA 726 (A) Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk 1979 (4) SA 467 (T) PRECEDENT Plea – alleging debtor and creditor lien
1. Defendant pleads that, on [date], plaintiff delivered the said motor vehicle to defendant’s service station for the effecting of the following repairs thereto: [detail]. Defendant undertook orally to effect the said repairs to the motor car.
2.
3. It was a[n implied] term of the agreement that defendant would be entitled, in respect of the services, to reasonable remuneration and that he would replace any defective parts at defendant’s ruling and reasonable prices. 4. Defendant duly effected the repairs and replaced defective parts. The details and costs thereof are set out in the annexures hereto. 5. Despite request for payment of the sum of [amount], plaintiff has failed to pay it. 6. By reason of the foregoing, defendant is entitled to retain possession of the said motor car until payment of the sum of [amount]. WHEREFORE defendant prays that plaintiff’s claim for delivery of the said motor car be stayed pending payment by plaintiff of the sum of [amount], and costs of suit. Pleadings/Amlers Precedents of Pleadings/L/Lis Alibi Pendens Lis Alibi Pendens Procedure: The defence that there are pending proceedings between the same parties is preferably raised by way of a special plea. While the defendant may plead to the merits, it appears senseless to do so pending the determination of this dilatory special plea. There is, however, authority to the effect that a defendant is obliged to plead over. Papp v Legal & General Assurance Society Ltd 1966 (2) SA 113 (E) See : SPECIAL PLEAS A court is not entitled to raise the issue of lis pendens unless the defendant pleads it specifically. Kerbel v Kerbel 1987 (1) SA 562 (W) The requisites: The party wishing to raise a lis pendens bears the onus of alleging and proving the following: (a)
there must be litigation pending; RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk 1981 (2) SA 141 (O) Van As v Appollus 1993 (1) SA 606 (C)
[Page 228] (b) the other proceedings must be pending between the same parties or their privies; Marks & Kantor v Van Diggelen 1935 TPD 29 Cook v Muller 1973 (2) SA 240 (N) (c) the pending proceedings must be based on the same cause of action; Richtersveld Community v Alexkor Ltd 2000 (1) SA 337 (LCC) Nestlé (SA) (Pty) Ltd v Mars Inc [2001] 4 All SA 315 (A); 2001 (4) SA 542 (SCA) (d) the pending proceedings must be in respect of the same subject-matter. This does not mean that the form of relief claimed in both proceedings must be identical. Williams v Shub 1976 (4) SA 567 (C) Whether the subject-matter is the same depends on a determination of the issues with reference to the pleadings. The mere fact that the same evidence may be led in both cases is beside the point. Marks & Kantor v Van Diggelen 1935 TPD 29 Onus: The onus of proving the requisites rests on the party raising the defence. Dreyer v Tuckers Land & Development Corp (Pty) Ltd 1981 (1) SA 1219 (T) at 1231 Sikatele v Sikatele [1996] 1 All SA 445 (Tk) Once the requisites have been established, a factual presumption arises that the second proceeding is prima facie vexatious. The party who instituted the second proceeding then bears the onus of convincing the court that the new proceeding is not vexatious. To do this, that party must satisfy the court that, despite the fact that all the required elements are present, the balance of convenience and equity are in favour of allowing the case to proceed. Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T) Geldenhuys v Kotze 1964 (2) SA 167 (O)
Ntshiqa v Andreas Supermarket (Pty) Ltd [1996] 3 All SA 154 (Tk); 1997 (1) SA 184 (Tk) PRECEDENTS Special plea – of lis alibi pendens 1. On [date], plaintiff instituted proceedings in this honourable court against defendant for an order ejecting defendant from [describe the property]. 2. Those proceedings are still pending and have not been disposed of. 3. In the present action, plaintiff again claims for the ejectment of defendant from the same property. 4. There is, accordingly, litigation pending between the parties on the same cause of action and in respect of the same subject-matter. WHEREFORE defendant prays that plaintiff’s present action be stayed pending the final determination of the action between the parties in this honourable court instituted on [date] as well as an order that plaintiff pay defendant’s costs. Replication – to a special plea of lis pendens Plaintiff admits that he did institute the prior proceedings for ejectment as alleged.
1.
2. Plaintiff denies that the pending litigation is based on the same cause of action or is in respect of the same subject-matter. [Page 229] 3. Plaintiff alleges that the cause of action for the ejectment in the pending proceedings is the cancellation of a lease between the parties due to defendant’s failure to keep the leased property in a proper state of repair. 4. Plaintiff furthermore alleges that the cause of action in the instant proceedings is plaintiff’s ownership of the property and defendant’s occupation thereof and, in the alternative, the cancellation of the lease between the parties by virtue of defendant’s subsequent failure to make payment of the rentals on due date. 5. Plaintiff accordingly pleads that the instant proceedings are not vexatious and that, since the issues to be decided are fairly simple, the balance of convenience and equity are in favour of allowing the case to proceed. WHEREFORE plaintiff prays that the special plea be dismissed with costs. Pleadings/Amlers Precedents of Pleadings/L/Loans Loans Related subjects: BANKERS CREDIT AGREEMENTS INTEREST LOANS Cause of action: In a claim based on a loan, the plaintiff must allege and prove: (a) the contract of loan; (b) that the money was advanced in terms of the loan; (c) that the loan is repayable. If no time for repayment was fixed, it is not necessary to allege that a reasonable time has elapsed because such a loan is repayable on demand. Damont NO v Van Zyl 1962 (4) SA 47 (C) Interaccess (Pty) Ltd v Van Dorsten [1999] 2 All SA 561 (C)
Unless the lapse of a reasonable time is a part of the plaintiff ’s cause of action, the onus is on the debtor who considers the claim for repayment premature to raise the question and to advance reasons why the debtor is entitled to further time to pay. Fluxman v Brittain 1941 AD 273 Credit Corporation of SA Ltd v Roy 1966 (1) SA 12 (D) Cf Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A); 1997 (2) SA 337 (SCA) at 352–353 It is not necessary to allege that a demand was made, unless, in terms of the contract, a demand is a requirement for repayment. Ridley v Marais 1939 AD 5 Interest: A loan normally bears interest at an agreed rate. Unless the rate has been set by law or an agreement, interest is payable at the rate prescribed by the minister in terms of the Prescribed Rate of Interest Act 55 of 1975. The court may, on the grounds of special circumstances, order otherwise. See : INTEREST The right to recover interest and finance charges is limited by the provisions of the Usury Act 73 of 1968. A moneylender may not claim an amount higher than that calculated in terms of the provisions of section 5. Save in respect of a debit balance in a cheque account with a banking institution, finance charges may be stipulated for, demanded or received from a borrower of [Page 230] money only if they have been disclosed in an instrument of debt executed in respect of that transaction. Usury Act 73 of 1968 s 2(9) There are exceptions to this rule. The Usury Act confers on a debtor the procedural benefit that judgment cannot be given against her or him in favour of a plaintiff who does not submit her- or himself to examination where the defendant alleges that payment of finance charges is claimed by the plaintiff at the rate exceeding the one allowed by the Usury Act, unless it appears to the court that such examination is impracticable or that the defendant’s allegation is prima facie without foundation. Usury Act 73 of 1968 s 11 There are two prerequisites for the operation of this section: (a) the defendant must establish, on a balance of probabilities, that the proceedings are for the recovery of a debt in pursuance of a money-lending transaction or credit transaction, as defined in the Act; and (b)
the defendant must thereafter support the allegation concerning the excessive finance charge-rate on a sufficient foundation of fact to render the allegation prima facie acceptable. Laztex (Pty) Ltd v Telementry Equipment (Pty) Ltd 1976 (1) SA 74 (W) Adfin (Pty) Ltd t/a Rand Trust v Fashion Shoe Centre (Pty) Ltd 1990 (4) SA 371 (C)
If the plaintiff abandons that part of the claim which is in excess of what the Usury Act permits, the defendant’s request for cross-examination will fall away. McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W) If finance charges have been calculated in advance, the plaintiff is obliged to give a credit to the defendant. See : CREDIT AGREEMENTS PRECEDENTS Claim – for repayment 1. On [date] at [place], plaintiff lent and advanced to defendant the sum of [amount] in terms of an oral agreement between them. 2. The aforesaid sum was, in terms of the agreement, repayable on [date], together with interest thereon at [percentage] per annum to date of repayment. 3. Defendant failed to repay the aforesaid sum to plaintiff on due date and has failed, since that date, to repay the aforesaid sum. Special plea – in terms of section 11 of Act 73 of 1968 Plaintiff ’s claim is one for the recovery of a debt in pursuance of a money-lending transaction.
1.
2. Plaintiff has in his claim included a claim for finance charges at a rate of [percentage] per annum, being in excess of the rate of [percentage] per annum allowed by Act 73 of 1968. 3. Defendant, therefore, prays for an order that plaintiff be called as witness to prove his claim, that defendant be given an opportunity to examine plaintiff and that the action be stayed pending the examination.
[Page 231] Claim – for the repayment of a loan: no time stipulated for repayment 1. On [date] at [place], plaintiff lent and advanced to defendant the sum of [amount]. 2. No time was then stipulated when repayment of such loan had to be effected. 3. On [date], plaintiff duly demanded repayment of the said sum of [amount] but, despite the lapse of a reasonable time, defendant has failed to repay it. Claim – on acknowledgement of debt 1. On [date], defendant acknowledged in writing his indebtedness to plaintiff in a sum of [amount] together with interest payable thereon at [percentage] per annum as from [date]. A copy of the said acknowledgement of debt is annexed hereto. 2. The capital amount, together with the interest thereon, became payable on [date] but defendant has, despite demand, failed and neglected to pay either the said capital or interest or any part thereof. Plea – of non-numeratae pecuniae 1. Defendant admits that he signed the said written acknowledgement of debt. 2. Defendant admits that, on the date alleged, plaintiff agreed to lend to defendant the sum of [amount] on the terms alleged. 3. Defendant denies that he at any time received any money whatsoever from plaintiff pursuant to the said agreement and states that the said acknowledgement of debt was signed by him in anticipation of the loan’s being made to him by plaintiff. Pleadings/Amlers Precedents of Pleadings/L/Loan for Use (Commodatum) Loan for Use (Commodatum) The rights and duties of the lender and borrower are very similar to those of a depositor and depository. The notes under DEPOSIT apply, therefore, mutatis mutandis to this contract. This contract must be distinguished from a loan for consumption where the thing lent need not be returned, but only its kind. Saridakis t/a Auto Nest v Lamont 1993 (2) SA 164 (C) PRECEDENT Claim – for loss of things lent 1. On [date] at [place], plaintiff lent and delivered to defendant his [item] for use for a period of [number] days from that date. Despite demand, defendant has failed to return the said [item], the value of which is [amount] to plaintiff.
2.
WHEREFORE plaintiff claims: (a) Return of the said [item]. (b) Alternatively, in the event of defendant’s failing to return the said [item] within a time to be fixed by this honourable court, payment of the value thereof, namely [amount]. [Page 232] Pleadings/Amlers Precedents of Pleadings/L/Locatio Conductio Operis (Letting and Hiring of Work) Locatio Conductio Operis (Letting and Hiring of Work) Related subject:
ARCHITECTS CONTRACT EXCEPTIO NON ADIMPLETI CONTRACTUS Definition: Locatio conductio operis is a contract in terms of which one party (the locator or contractor) has to produce a completed piece of work for the other (the conductor or employer). Typical examples are building and engineering contracts and contracts for repairs to the property of the employer. Sifris NNO v Vermeulen Broers 1974 (2) SA 218 (T) Toerien v Stellenbosch University 1996 (1) SA 197 (C) at 201 The contract: The plaintiff must allege and prove the terms of the contract relied on, even doing so involves the proof of a negative: for example, if the defendant alleges that the contract comprises x + y, whereas the plaintiff alleges that it comprises x only, the plaintiff must prove that y is not a term of the contract). Kriegler v Minitzer 1949 (4) SA 821 (A) Van Rooyen’s Garage (Edms) Bpk v Wartington 1962 (1) SA 914 (T) Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 94 The ordinary rules relating to the pleading of contracts are applicable. The contract has three basic terms, namely terms relating to: (a) the work to be performed; (b) the remuneration payable; and (c) the time for performance. Cf Group Five Building Ltd v Min of Community Development 1993 (3) SA 629 (A) The Housing Consumers Protection Act 95 of 1998: This Act contains provisions relating to building contracts in respect of “homes”. These are defined as meaning (subject to some ministerial prescription) any dwelling unit constructed or to be constructed by a homebuilder for residential purposes or partially for residential purposes. The Act places an obligation on a homebuilder to ensure that the building agreement is in writing and signed by the parties; that the agreement sets out all material terms, including the financial obligations of the housing consumer; and that the homebuilder has attached certain annexures to the agreement. The Housing Consumers Protection Act 95 of 1998 s 13(1) It provides further that the agreement is be deemed to include a number of warranties for the protection of the owner, including that the home will be constructed in a workmanlike manner and will be fit for habitation. The Housing Consumers Protection Act 95 of 1998 s 13(2) The works: It is usually an implied (tacit) term of the contract that the contractor will use materials that are suitable for the purpose of the works and will perform the work in a proper and workmanlike fashion. Colin v De Guisti 1975 (4) SA 223 (NC) It may be that, if the employer supplies the material, the latter accepts the risk relating to the suitability of the material employed. The level of skill and diligence to be employed is that possessed and exercised by other members of the trade to which the contractor belongs. Randaree NNO v WH Dixon & Associates 1983 (2) SA 1 (A) [Page 233] The remuneration: The plaintiff must allege and prove: (a) (b)
that remuneration was, in terms of the contract, payable; and the amount of the remuneration payable.
As far as (a) is concerned, remuneration is payable if nothing was said about remuneration. It is implied that, in those circumstance, the remuneration will be a reasonable one. It is, in the case of a dispute, for the plaintiff to prove that nothing was said concerning remuneration. An allegation by the defendant that the plaintiff undertook to do the work free of charge does not place any onus on the defendant. Dave v Birrell 1936 TPD 192 Inkin v Borehole Drillers 1949 (2) SA 366 (A) Chamotte (Pty) Ltd v Carl Coetzee (Pty) Ltd 1973 (1) SA 644 (A) at 649 It may be prudent to rely, in the alternative to an agreed rate, on a tacit term of a fair and reasonable remuneration. If this is not done, and the issue is not fully canvassed, the court may be unable to fix the rate and the plaintiff may fail. Middleton v Carr 1949 (2) SA 374 (A) at 385–386
The claim for a reasonable remuneration based on an implied term should be distinguished from such a claim based on unjust enrichment where allegations of enrichment and acceptance of the benefits by the defendant must be made. Inkin v Borehole Drillers 1949 (2) SA 366 (A) A contract for performing work for a stipulated remuneration may be varied in such a manner by the employer, and carried out by the contractor, that it can be said that the original contract was tacitly replaced by a new one in terms of which the employee is entitled to a reasonable remuneration. A contractor who, while performing a contract for a fixed remuneration, receives and accepts instructions to carry out work which does not form part of the agreement is entitled to a reasonable remuneration on the basis of a separate tacit agreement. The applicable rate may be the same as that under the main contract. Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) Performance: The plaintiff must allege and prove that he or she has done all that he or she was required to do in terms of the contract on which he or she sues. Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd 1979 (2) SA 56 (A) Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens [2000] 2 All SA 72 (A); 2000 (3) SA 339 (SCA) The contractor is otherwise not entitled to recover the contract sum. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) As a general rule, a contractor’s obligation to complete the work is an antecedent for the defendant’s obligation to pay the contract sum. The plaintiff cannot, therefore, require payment against performance. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A)Building contracts normally make provision for interim payments on certificates and the certificate can form a cause of action if read with the contract. See : ARCHITECTS If the employer lawfully cancelled the contract, the contractor can no longer rely on a certificate for payment. Simmons NO v Bantoesake Administrasieraad (Vaaldriehoekgebied) 1979 (1) SA 940 (T) [Page 234] Late performance: A contractor who delivered the work and material in accordance with the contract is entitled to recover the contract sum in spite of late delivery of performance. There is no onus, in such event, on the contractor to prove that the owner has not suffered damages as a result of the late performance. It is no defence to the claim of the contractor that the owner might suffer damages as a result of the late performance. The owner will have to quantify the damages suffered and, by way of counterclaim, set them off against the claim. Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228 (A) The onus then rests on the owner to prove the extent of the damages suffered. It follows that the contractor’s claim is, under these circumstances, not one based on unjust enrichment. Incomplete or defective performance: A contractor can recover payment even if the performance was incomplete or defective. The plaintiff is, however, not entitled to recover the contract sum. There are different possibilities. Incomplete or defective performance without a cancellation by the employer: The court may, in its discretion, grant the contractor a reduced contract price. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) Terms such as “quantum meruit” and “enrichment” should be avoided in this context. Hauman v Nortjé 1914 AD 293 The reduced contract price is, as a general rule, calculated by deducting the cost of remedying the defects from the stipulated remuneration. The court exercises its discretion on considerations of equity. The decisive question is whether the employer utilised the incomplete performance, regardless of the extent of its deficiency, although factors such as the bona fide belief of the contractor can still play a role. Consequently, although those decisions in which it was held that a contractor who knowingly and wilfully, and without the employer’s consent, departs from the terms of the contract or does not believe that the work is complete is not entitled to a quantum meruit (for example, Hauman v Nortjé 1914 AD 293) are still relevant, they can no longer be read to mean that the defaulting contractor is without remedy. A contractor who wishes to rely on the court’s discretion in this regard must allege and prove: (a) that the employer utilised the defective or incomplete performance; (b) facts which would make it equitable for the court to exercise its discretion in her or his favour – for example, an honest belief that the performance was complete; and (c)
what the amount of the reduced contract price should be. This is done by proving the cost of remedying the defect. It will then be deducted from the contract price. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at 434–435 Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd 1979 (2) SA 56 (A)
[Page 235] (While the principles involved have been stated in a large number of cases, BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) dealt with them authoritatively.) Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd 1984 (2) SA 24 (SWA) Incomplete or defective performance with cancellation by the employer: Where the employer lawfully cancels the contract, the contractor may claim compensation on the grounds of unjust enrichment. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at 422–425 The contractor should then make out a case based on enrichment. Middleton v Carr 1949 (2) SA 374 (A) The court may nevertheless in the absence of the necessary allegations award compensation, if the issue was fully canvassed. Middleton v Carr 1949 (2) SA 374 (A) MacFarlane v Crooke 1951 (3) SA 256 (C) The obligation to compensate arises when the employer has, in fact, been enriched – for example, where the employer derived an advantage from a building and the outstanding contract price exceeds the cost of remedying the defects. Van Rensburg v Straughan 1914 AD 317 The remuneration awarded to the contractor will depend on the value of the advantage derived by the employer from the work performed. It is generally calculated by reference to the contract price and to the portion of the work that has been left undone. Incomplete or defective performance due to a breach by the employer: If, in the absence of lawful rescission of the agreement by the employer, the contractor is prevented by the employer from completing the work, the contractor is entitled to the stipulated remuneration subject to a deduction in respect of saved costs. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) The plea: A defendant cannot merely deny the allegation that there was proper performance by the contractor. The defendant must particularise the defects and may not at the trial, without amendment, rely on any defect not so particularised. Badenhorst v Prinsloo 1967 (1) SA 212 (O) at 215 A defendant wishing to dispute the quantum needed to rectify defects, may do so in the plea without the need of a counterclaim. A defendant who proposes to claim damages for losses flowing from defective performance must institute a counterclaim in which event the onus of proving the damages will rest on the defendant. BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228 (A) Contractual defences: A defendant, who is prima facie liable for damages as a result of a breach of the contract and who wishes to rely on a contractual provision creating an exemption from liability, is, in effect, confessing and avoiding. He or she is saddled with the onus of establishing the defence by bringing her- or himself within the terms of the provision concerned. Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd [1998] 4 All SA 117 (SCA) at 126; 1998 (4) SA 844 (SCA) [Page 236] PRECEDENT Claim – for payment 1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff undertook to erect a warehouse for defendant. A copy of the agreement is attached hereto and marked “A”. [In the case of a standard building contract, the contract documents may be too voluminous for inclusion as a whole in the pleadings. In such case, only those portions relied on should be attached.] 2. In terms of Annexure “A”, defendant undertook to pay the amount of [Rx] to plaintiff upon completion of the warehouse. 3.
(a)
During the course of construction on [date] and at [place], plaintiff and defendant orally agreed that plaintiff would do the following work, additional to that contracted for in Annexure “A”, namely: [detail]. (b) (c) (d)
Plaintiff duly performed the aforesaid additional work. It was agreed that plaintiff would be paid [Ry] for performing the additional work. (i)
Alternatively to paragraph (c), it was implied that plaintiff would be paid a fair and reasonable remuneration for the additional work; and (ii) the fair and reasonable remuneration for the said work is [Ry]. 4. On [date], plaintiff duly completed the warehouse and, in so doing, fulfilled all his contractual obligations in terms of Annexure “A”. In the premises, plaintiff is entitled to payment of [Rx].
5.
6. Alternatively to paragraphs 4 and 5, if it be found that plaintiff did not fulfil all his obligations in terms of the agreement, plaintiff states that: (a) he has materially fulfilled his obligations; (b) defendant is utilising the warehouse; (c) non-fulfilment of his obligations was unknown to plaintiff and he was honestly of the belief that he had duly fulfilled his obligation; (d) (e)
the cost of remedying any defects found to be present will not exceed [Rz]; plaintiff is entitled to payment of [Rx–Rz].
WHEREFORE plaintiff claims: (a) Payment of the amount of [Rx]; alternatively, of [Rx–Rz]. (b) Payment of [Ry]. (c) Interest [rate]. Pleadings/Amlers Precedents of Pleadings/L/Locus Standi Locus Standi Related subject: CITATIONS General: It must appear ex facie the pleadings that the parties thereto have the necessary legal standing or locus standi in iudicio. Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) at 575 Kommissaris van Binnelandse Inkomste v Van der Heever [1999] 3 All SA 115 (A) at par 10; 1999 (3) SA 1051 (SCA) Minors: A minor may sue or be sued: (a) in the name of her or his guardian as representing her or him, in which case the fact of her or his representative capacity must be alleged; (b)
in her or his own name, assisted by her or his guardian;
[Page 237] (c) in the absence of a guardian, in the name of a duly appointed curator ad litem, in which event, the representative capacity must be stated; (d)
if he or she has been declared to be a major in terms of the Age of Majority Act 57 of 1972, in her or his own name.
Spouses married in community of property: A spouse married in community of property may, without the written consent of the other spouse, institute legal proceedings or defend legal proceedings:
(a) between the spouses; (b) in respect of her or his separate property; (c) for the recovery of damages, other than damages for patrimonial loss, resulting from a delict against her or him; (d)
in respect of a matter relating to her or his profession, trade or business. Matrimonial Property Act 88 of 1984 s 17 Amalgamated Banks of South Africa Bpk v de Goede [1997] 2 All SA 427 (A); 1997 (4) SA 66 (SCA)
Where a debt is recoverable from a joint estate, the spouse who incurred the debt, or both spouses jointly, may be sued therefor. Where a debt has been incurred for necessaries for the joint household, the spouses may be sued jointly and severally therefor. Matrimonial Property Act 88 of 1984 s 17(5) Pleadings/Amlers Precedents of Pleadings/L/Loss of Support Loss of Support Related subjects:
DAMAGES LEX AQUILIA MOTOR VEHICLE ACCIDENTS
Elements: A person wishing to claim damages consisting of loss of support due to the death or injury of another must, in addition to the other ordinary elements of the lex Aquilia, allege and prove: (a)
that that person had a legal duty to support the plaintiff by virtue of the requisite degree of consanguinity or of a court order; Barnes v Union & SWA Insurance Co Ltd 1977 (3) SA 502 (E) Henery v Santam Versekeringsmaatskappy Bpk [1997] 3 All SA 100 (T)
(b) that the plaintiff is indigent; Singh v Santam Insurance Co 1974 (4) SA 196 (D) (c) (d)
that the person concerned actually maintained the plaintiff; that, in future, that person would have had a legal duty to continue with maintenance; Van Vuuren v Sam 1972 (2) SA 633 (A)
(e) the actual loss suffered. Santam Insurance Co Ltd v Fourie [1997] 1 All SA 590 (A); 1997 (1) SA 611 (SCA) These rules do not govern the case of claims by dependants, namely spouses and children. [Page 238] PRECEDENT Claim – by parent for loss Plaintiff, born on [date], is the mother of the deceased, [name], born on [date]. Defendant wrongfully and negligently killed [the deceased] on [date] at [place] by shooting him. During his lifetime, the deceased, who had a legal duty thereto, contributed to plaintiff ’s support [detail].
1. 2. 3.
4. Plaintiff was at all material times, and still is, indigent as she is unable to work because of her blindness and has no other source of support and maintenance. 5. The deceased, had he not been killed, would have been legally obliged to continue to support plaintiff and he would have been able to do so in the sum of [amount] per month.
6. Due to defendant’s wrongful act, plaintiff has lost her right of support from the deceased and has suffered damages in the sum of [amount] [detail]. Pleadings/Amlers Precedents of Pleadings/M/Malicious Proceedings Malicious Proceedings Related subjects:
ARREST AND DETENTION STATE LIABILITY
Jurisdiction: The jurisdiction of a court is determined according to the principles applicable to delictual claims. Minister of Law and Order v Thusi 1994 (2) SA 224 (N) Cause of action: The cause of action for a claim for damages caused by malicious criminal or civil proceedings is the actio iniuriarum. The plaintiff bears the onus in respect of all the elements of the delict, including that of animus iniuriandi. Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A) at 135–136 Van der Merwe v Strydom 1967 (3) SA 460 (A) at 467 Groenewald v Minister van Justisie 1973 (2) SA 480 (O) Setting the law in motion: The plaintiff must allege and prove that the defendant instituted the proceedings – ie, that the defendant actually instigated or instituted them. The mere placing of information or facts before the police, as a result of which proceedings are instituted, is insufficient. Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196–197 On the other hand, where an informer makes a statement to the police which is wilfully false in a material respect, but on the basis of which no prosecution could have taken place, he or she “instigates” a prosecution and may be personally liable. Prinsloo v Newman 1975 (1) SA 481 (A) at 492 Lack of reasonable and probable cause: The plaintiff must allege and prove that the defendant instituted the proceedings without reasonable and probable cause. Reasonable and probable cause means an honest belief founded on reasonable grounds that the institution of proceedings is justified. The concept involves both a subjective and an objective element. Prinsloo v Newman 1975 (1) SA 481 (A) Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A) Van der Merwe v Strydom 1967 (3) SA 460 (A) [Page 239] Malice and animus iniuriandi : In spite of what was said in Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A), a plaintiff is well advised to allege and prove not only animus iniuriandi but also malice. Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196 Thompson v Minister of Police 1971 (1) SA 371 (E) Stambolie v Commissioner of Police 1990 (2) SA 369 (ZSC) Malice is, in this context, probably an element relating to the wrongfulness of the act rather than one relating to animus iniuriandi. Termination of proceedings: The plaintiff must allege and prove that the proceedings were terminated in her or his favour because this cause of action cannot be used to prejudge the reasonableness of the proceedings that form the subject of the complaint. Thompson v Minister of Police 1971 (1) SA 371 (E) at 373–375 Els v Minister of Law & Order 1993 (1) SA 12 (C) Damages: The plaintiff may claim special damages, such as legal costs expended in defending the prosecution or other proceedings. Law v Kin 1966 (3) SA 480 (W) Full particulars must be given of special damages but not of general damages suffered in respect of contumelia. Courts take a serious view of these matters and may award substantial damages. Manase v Min 2003 (1) SA 567 (Ck) Wrongful legal proceedings: A claim for malicious legal proceedings differs materially from one based on wrongful legal proceedings. Examples of the latter include attachment or execution of property or an arrest which is wrongful because such attachment, execution or arrest took place without a writ or warrant. These cases have two special features: first, the defendant must allege and prove the lawfulness of the execution or arrest and, second, the absence of animus iniuriandi is no defence. Cohen Lazar & Co v Gibbs 1922 TPD 146 Ramsay v Minister van Polisie 1981 (4) SA 802 (A) Tödt v Ipser 1993 (3) SA 577 (A) Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N); 1998 (2) SA 319 (N) Meevis v Coetzee [1998] 2 All SA 602 (T) Coetzee (Sheriff, Pretoria East) v Meevis [2001] 1 All SA 10 (A); 2001 (3) SA 454 (SCA)
Morkel v Kruger-Liptrot [2000] 4 All SA 623 (C) Where a writ or warrant was issued but was invalid, the plaintiff must allege and prove that such writ or warrant has been set aside. Boshoff v Van Zyl 1938 CPD 464 Malicious insolvency or liquidation proceedings: A court discharging a provisional order of sequestration may, if it is satisfied that the petition for sequestration is vexatious or malicious, allow the debtor forthwith to prove any damages sustained by reason of the provisional order and may award compensation as it deems fit. Insolvency Act 24 of 1936 s 15 [Page 240] PRECEDENT Claim – for damages 1. On [date] at [place], defendant wrongfully and maliciously set the law in motion by laying a false charge of theft against plaintiff with the police at [place] by giving them the following false information, namely: [detail]. 2. When laying this charge and giving this disinformation, defendant had no reasonable or probable cause for so doing, nor did he have any reasonable belief in the truth of the information given. 3. As a result of defendant’s conduct, plaintiff was arrested and held in custody for [number] days until he was prosecuted for theft in the magistrate’s court at [place] and duly acquitted on [date]. 4. Plaintiff suffered damages as a result of defendant’s conduct in the sum of [amount], being the costs reasonably expended by plaintiff in defending himself against the aforesaid charge, and [amount], being damages for contumelia, deprivation of freedom, and discomfort suffered by plaintiff. Pleadings/Amlers Precedents of Pleadings/M/Medical and Dental Practitioners Medical and Dental Practitioners Related subjects: ASSAULT LOCATIO CONDUCTIO OPERIS The contract: The legal relationship between a medical practitioner and a patient is created by contract. The practitioner undertakes to render professional services and the patient undertakes (normally) to pay for services rendered. Registration: No person is entitled to practise the profession of a medical practitioner or other health profession unless he or she is registered in terms of the Health Professions Act 56 of 1974. Health Professions Act 56 of 1974 s 17(1) No remuneration is recoverable in respect of any act especially pertaining to the profession of a registered person when such act is performed by a person who is not authorised under the Act to perform such act for gain. Health Professions Act 56 of 1974 s 59(1) Payment: In a claim for payment, the practitioner must allege and prove: (a) (b) (c) (d)
the contract; performance of the mandate; the agreed remuneration or the usual charges; that a detailed account was furnished to the defendant within a reasonable period. Health Professions Act 56 of 1974 s 53(2)
Determination of the reasonableness of fees: If the fee to be charged exceeds that usually charged for such service, the practitioner must inform the patient in advance of the intended fee and the usual fee. Health Professions Act 56 of 1974 s 53(1) A patient who disputes the fee may apply to the Medical Council for a determination of the fee, which determination shall be final. Health Professions Act 56 of 1974 s 53(3)
[Page 241] Negligence: It is an implied term of the contract that the medical practitioner who undertakes the treatment of the patient will exercise the reasonable skill and care of a practitioner in her or his field. In deciding what is reasonable, the evidence of qualified physicians is of the greatest assistance; however, what is reasonable under the circumstances is a matter for the court to decide. Buls v Tsatsarolakis 1976 (2) SA 891 (T) Van Wyk v Lewis 1924 AD 438 Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) Streicher v Van Vuuren [2000] 4 All SA 306 (A) Should the practitioner fail in her or his duty and the patient suffer damages in consequence thereof, the practitioner is bound to compensate the patient for the damages caused by the breach of contract. Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A) Mukheiber v Raath [1999] 3 All SA 490 (A); 1999 (3) SA 1065 (SCA) In order to succeed in a claim for damages, the patient will have to allege and prove: (a) the contract; (b) negligent breach thereof; (c) causation; (d) damages. Blyth v Van den Heever 1980 (1) SA 191 (A) Administrator, Natal v Edouard 1990 (3) SA 581 (A) The mere fact that a medical treatment was unsuccessful or not as successful as it might have been, or that the treatment administered did not have the desired effect, does not, on its own, necessarily justify the inference of lack of diligence, skill or care on the part of the practitioner. Castell v De Greef 1993 (3) SA 501 (C) at 509F–J; 1994 (4) SA 408 (C) at 416 Duty to disclose: Whether a practitioner should disclose to a patient the dangers or risks involved in a medical procedure depends on the circumstances of the case. A mere failure to warn the patient does not necessarily constitute negligence. Richter v Estate Hammann 1976 (3) SA 226 (C) A medical practitioner is obliged to warn a patient consenting to treatment of any material risk inherent in such treatment. A risk is material if, in the circumstances of the case: (a) a reasonable person in the patient’s position would, if warned of the risk, be likely to attach significance to it; or (b) the practitioner is or should reasonably be aware that the particular patient would, if warned of the risk, be likely to attach significance to it. Castell v De Greef 1994 (4) SA 408 (C) at 426F–H Assault: It was an accepted practice for a patient to rely on assault as a cause of action if a practitioner treated her or him without her or hisconsent or informed consent. It is no longer advisable to plead in this way Broude v McIntosh 1998 (2) SA 555 (SCA) at 562–563; 1998 (3) SA 60 (SCA) at 67–68 In any event, defences to such a claim would include the inability of the patient to consent due to an emergency situation. Stofberg v Elliott 1923 CPD 148 Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T) [Page 242] Third parties: A medical practitioner may have a duty of care towards a non-patient and a negligent breach of that duty may lead to an action for damages. Magware v Minister of Health NO 1981 (4) SA 472 (Z) Minister van Polisie v Ewels 1975 (3) SA 590 (A) PRECEDENT Claim – for damages 1. Defendant is a medical practitioner and orthopaedic surgeon of [place]. 2.
On [date], the parties entered into an oral agreement at [place] in terms of which defendant undertook to perform surgery on plaintiff’s [for example, left knee for the removal of the patella]. 3. It was a term of the agreement that defendant would perform the surgery with such professional skill as is reasonable for a specialist orthopaedic surgeon. 4. Despite the agreement, defendant carried out the surgery negligently in one or more of the following respects: [detail]. 5. As a result of defendant’s negligence, plaintiff experienced pain and suffering, a loss of earnings, both in the past and in future, and had to undergo further medical treatment with resultant medical costs, and will have to undergo further medical treatment in future. [Detail]. 6. In consequence of the above, plaintiff suffered damages in the sum of [amount], made up and calculated as follows: [detail]. Pleadings/Amlers Precedents of Pleadings/M/Mental Incapacity Mental Incapacity The validity of a jural act depends on the ability of a party thereto to bring to bear on that act the necessary consenting mind. The acts of a person destitute of reason or intelligence are void. A party who wishes to rely on mental incapacity must raise the issue distinctly in the pleadings. Pheasant v Warne 1922 AD 481 Kotze NO v Santam Insurance Ltd 1994 (1) SA 237 (C) at 242 The onus rests on the person raising the issue. The inquiry into a party’s state of mind is delicate and difficult. It involves establishing whether the person concerned was, at the relevant time, capable of managing the particular affair because her or his mind was such that he or she could not understand and appreciate the jural act which he or she purported to execute. Tregea v Godart 1939 AD 16 Theron v AA Life Assurance Association Ltd 1995 (4) SA 361 (A) at 374–375 Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman NO [1997] 3 All SA 391 (A); 1997 (4) SA 302 (A) Mental incapacity can be the result of a natural affliction or of intoxication. Intoxication must be such as to render the party non compos mentis and not merely more easily persuadable or more willing to conclude the jural act. Van Metzinger v Badenhorst 1953 (3) SA 291 (T) A party lacking mental capacity must be represented by a curator ad litem. The appointment of a curator ad litem is regulated by Uniform rule 57. [Page 243] PRECEDENTS Claim – to set aside a contract on ground of intoxication 1. On [date] at [place], plaintiff signed a written document, Annexure “A” hereto, purporting to be an agreement in terms of which plaintiff sold to defendant a certain motor vehicle for the sum of [amount]. On that date, defendant took delivery of the said motor vehicle.
2.
3. At all material times, plaintiff was under the influence of intoxicating liquor to such an extent that he was deprived of his reasoning faculties and not aware of the nature and contents of the document to which he affixed his signature, nor was he aware of the fact that defendant had taken delivery of the said motor vehicle. 4. Plaintiff was at no time agreeable to selling his said motor vehicle to defendant and, had he been aware of the nature and contents of the document aforesaid, he would not have signed it. WHEREFORE plaintiff claims: (a) (b)
An order declaring the said agreement null and void. Return of the said motor vehicle.
Plea – of intoxication to a claim under a contract 1. Defendant admits having executed the alleged agreement but avers that, at the time of the said agreement, he was so intoxicated that he was incapable of comprehending its contents or its meaning and effect. 2. In the premises, defendant alleges that the said agreement is of no force or effect. Claim – to set aside an agreement on the grounds of insanity 1. On [date] at [place], plaintiff affixed his signature to a document (a copy of which is annexed hereto) purporting to be an agreement of sale in terms of which plaintiff sold to defendant a certain motor vehicle belonging to plaintiff for the sum of [amount] and authorising defendant to take possession of the motor vehicle from [name] in whose possession it then was. 2. At the time of the signing of the document, plaintiff was not of sound mind and was, as a result thereof, wholly incapable of understanding and appreciating the nature and contents of the document which he signed. [State medical reasons.] 3. The value of the motor vehicle is [amount]. 4. Plaintiff has not received any portion of the purchase price. WHEREFORE plaintiff claims: (a) (b)
An order declaring the said purported agreement of sale null and void. Return of his said motor vehicle; alternatively, payment of the sum of [amount].
Plea – of insanity 1. Defendant admits having signed the said document, Annexure “A”. 2. At the time of his signing the said document, defendant was not in his sound and sober senses, but was mentally incapable of entering into any agreement whatsoever and was not capable of appreciating the nature and contents of the said document. [Provide medical reason.] 3. In the premises, the said purported agreement was void ab initio and defendant is not bound by its terms. [Page 244] Pleadings/Amlers Precedents of Pleadings/M/Misrepresentation Misrepresentation See : FRAUD, INNOCENT MISREPRESENTATION, NEGLIGENT MISREPRESENTATION Pleadings/Amlers Precedents of Pleadings/M/Mistakes Mistakes Related subjects: CONDICTIO INDEBITI CONTRACT FRAUD INNOCENT MISREPRESENTATION NEGLIGENT MISREPRESENTATION Mutual mistake: A mutual mistake exists where each party to the alleged contract was mistaken as to the other party’s intention. An example of a mutual mistake is where the parties use an ambiguous word in their contract and each party attaches a different meaning to that word. One party accordingly does not realise that her or his promise is misunderstood by the other party. The party wishing to rely on a contract concluded under such circumstances must allege and prove that the parties were, in fact, in agreement. This is part and parcel of the onus of proving the contract between the parties. Diamond v Kernick 1947 (3) SA 69 (A)
Common mistake: Where parties reach an agreement which is based on a common assumption of a present or past fact and that assumption is incorrect, the contract will be void. Osman v Standard Bank National Credit Corp Ltd 1985 (2) SA 378 (C) at 386 However, a party cannot vitiate a contract based on a mistaken motive relating to an existing fact, even if the mistake is common, unless the contract is made dependent on the motive or unless the requirements for a misrepresentation are present. Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA 264 (SCA) The party wishing to rely on the voidness of the contract must allege and prove that: (a) the contract was based on a common assumption; (b) the assumption was incorrect; (c) the subject-matter of the assumption was vital to the transaction – ie, had either party been aware of the true position, the transaction would not have been entered into. Dickinson Motors (Pty) Ltd v Oberholzer 1952 (1) SA 443 (A) Luzon Investments (Pty) Ltd v Strand Municipality 1990 (1) SA 215 (C) at 228 Krapohl v Oranje Koöperasie Bpk 1990 (3) SA 848 (A) at 865 Unilateral error: It is factually, but not finally, presumed that a person who signs a document knows what it contains. Glen Comeragh (Pty) Ltd v Colibri (Pty) Ltd 1979 (3) SA 210 (T) Du Toit v Atkinson’s Motors Bpk 1985 (2) SA 893 (A) Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers [2001] 2 All SA 646 (NC); 2001 (3) SA 110 (NC) [Page 245] It is for the party alleging a unilateral error to allege and prove the facts necessary to avoid the contract. National & Overseas Distributors Corp (Pty) Ltd v Potato Board 1958 (2) SA 473 (A) George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) Lake NNO v Caithness 1997 (1) SA 667 (E) at 672 ABSA Bank Ltd v The Master NNO [1998] 3 All SA 189 (N); 1998 (4) SA 15 (N) Apart from the error, it must also be alleged and proved that the error was iustus. An error is said to be iustus if it was caused by the misrepresentation of the other party. Innocent misrepresentation will suffice as will the silence of one party which misleads the other party. Du Toit v Atkinson’s Motors Bpk 1985 (2) SA 893 (A) Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd 1986 (1) SA 303 (A) Hlobo v Multilateral Motor Vehicle Accidents Fund [2001] 1 All SA 322 (A); 2001 (2) SA 59 (SCA) Kentz (Pty) Ltd v Power [2002] 1 All SA 605 (W) The test is whether the party whose actual intention did not conform to the expressed common intention led the other party, as a reasonable person, to believe that the declared intention represented the actual intention. The inquiry entails determining whether there was misrepresentation as to intention; who made that representation; who was the misled party; and whether a reasonable person would have been so misled. Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A) Prins v ABSA Bank Ltd [1997] 1 All SA 486 (C); 1998 (3) SA 904 (C) An incidental mistake – ie, a mistake relating to the reasoning or motivation behind the agreement only – is not iustus. Diedericks v Minister of Lands 1964 (1) SA 49 (N) Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA 264 (SCA) A unilateral error caused by a misrepresentation renders the agreement voidable and not void. Trollip v Jordaan 1961 (1) SA 238 (A) PRECEDENTS Claim – based on common mistake 1. On [date] at [place], the parties entered into an oral agreement of sale in terms of which plaintiff purchased from defendant a motor vehicle [registration number] for [amount]. Plaintiff duly paid the purchase price on [date] and took delivery of the vehicle on [date] at [place]. The contract was entered into on the common assumption that the motor vehicle was a [year] model. The motor vehicle is not what was assumed by the parties but is, in fact, a [year] model.
2. 3. 4.
5. There is a material difference between the market value of a [year] model and a [year] model of approximately [amount]. 6. The agreement is accordingly void as a result of the common mistake between the parties when they entered into the agreement. 7. Plaintiff tenders return of the motor vehicle against repayment of the purchase price. [Page 246] Plea – of mutual mistake 1. Defendant admits the agreement in terms of which he sold to plaintiff the stated quantity of “maize”. 2. Defendant denies that the “maize” sold to plaintiff was grade 1 maize. 3. Defendant by selling “maize” intended to sell grade 2 maize and not grade 1 maize. 4. In so far as plaintiff may have been under the bona fide belief that the “maize” sold was grade 1 maize, defendant alleges that the agreement which referred to “maize” simpliciter was entered into as the result of a mutual mistake. 5. Defendant, therefore, pleads that the alleged agreement is of no legal force and effect. Plea – of unilateral mistake 1. Defendant admits that the document relied on by plaintiff was signed by him, but defendant pleads that he is not bound by the terms of the document because he signed it in error. 2. Defendant pleads that, in his dealings with plaintiff, he was acting at all times on behalf of a disclosed principal, one [name]. 3. Plaintiff handed the document to defendant on the assumption that it contained the terms of the agreement reached between plaintiff and defendant acting in his aforesaid capacity only. 4. When signing the document, defendant qualified his signature to indicate that he was signing in a representative capacity. 5. Defendant was unaware of, and plaintiff negligently failed to disclose to defendant, the fact that the document contained a clause binding the signatory as surety of his principal. 6. Defendant never intended to bind himself as surety or to create a personal liability by signing the document. Pleadings/Amlers Precedents of Pleadings/M/Mora Mora Related subject: CONTRACT CONTRACT: CANCELLATION OF INTEREST Mora creditoris : A creditor may be in default if the contract requires the co-operation of the creditor for performance by the debtor. Default arises automatically where the contract contains a prescribed time for performance by the debtor and, by implication, for the creditor’s co-operation. Default may also arise where the debtor calls on the creditor for the required co-operation and the creditor fails to supply it within a reasonable time. Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens; Qwa Qwa Regeringsdiens v Martin Harris & Seuns OVS (Edms) Bpk [2000] 2 All SA 72 (A); 2000 (3) SA 339 (SCA) Mora debitoris : A debtor is said to be in mora if the debtor is in default with performance. The principles are set out below. Mora ex re : A party to a contract is in mora ex re if the contract stipulates a time for performance and the debtor fails to perform within the time limit. Laws v Rutherford 1924 AD 261
Mora ex persona : The debtor is in mora ex persona if the contract stipulates no time for performance but the creditor makes a demand on the debtor which: (a) is clear and unequivocal; Ponisammy v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A) Kragga Kamma Estates CC v Flanagan 1995 (2) SA 367 (A) Cf Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A); 2001 (2) SA 284 (SCA) [Page 247] (b)
provides a fixed date, which date is reasonable, for performance; and Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A)
(c) if applicable, contains an offer by the creditor to perform reciprocal obligations simultaneously. Hammer v Klein 1951 (2) SA 101 (A) Linton v Corser 1952 (3) SA 685 (A) Nel v Cloete 1972 (2) SA 150 (A) Right to cancel: The fact that a debtor is in mora does not entitle the creditor to cancel the contract. The creditor must, in addition, have an accrued right to cancel the contract. One of the following alternatives must be present: (a)
The contract must have a cancellation clause (lex commissoria) entitling one party to cancel if the other is in mora. Venter v Venter 1949 (1) SA 768 (A) It must be alleged and proved that the contractual provisions of the cancellation clause have been complied with. Van Zyl v Rossouw 1976 (1) SA 773 (NC) Graham NO v Trackstar Trading 363 (Pty) Ltd [2003] 1 All SA 181 (SE) at para 58
(b)
The contract must have a tacit cancellation term. This is the case when time is of the essence of the contract. It must, therefore, be alleged that there is a tacit term which entitles the creditor to cancel if the debtor fails to perform on time. Greenfield Manufacturers Temba (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A)
(c) A notice of intention to rescind can create a right to rescind. A further notice rescinding the contract in terms of the first notice is required, unless it is incorporated into the demand. Microutsicos v Swart 1949 (3) SA 715 (A) Nel v Cloete 1972 (2) SA 150 (A) The notice must also provide for a reasonable time to perform. Microutsicos v Swart 1949 (3) SA 715 (A) (d)
The other party is unable to perform at the time performance is due or within a reasonable time thereafter. Ponisammy v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A)
Cancellation: An effective cancellation must be alleged and proved. This involves an unequivocal notice of rescission brought to the notice of the other party to the contract. Swart v Vosloo 1965 (1) SA 100 (A) Miller & Miller v Dickinson 1971 (3) SA 581 (A) Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A); 2001 (2) SA 284 (SCA) Reasonable time: A creditor wishing to rely on the lapse of a reasonable time must establish what that period of time was. Fluxman v Brittain 1941 AD 273 Cf Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A); 1997 (2) SA 337 (A) at 352–353 [Page 248] PRECEDENTS Claim – for cancellation where no lex commissoria in contract 1. On [date] at [place], the parties entered into an oral agreement in terms of which defendant sold to plaintiff a [describe] motor vehicle [registration number] for the purchase price of [amount]. It was a material term of the agreement that delivery was to be effected on [date].
2.
3. Defendant failed to deliver the vehicle on due date and has not delivered it since, in spite of the fact that plaintiff paid the price in full on [date]. In consequence, defendant has breached the terms of the agreement.
4.
5. On [date] at [place], plaintiff demanded delivery of the vehicle on or before [date] and gave notice to defendant that, should defendant fail to comply with the demand, plaintiff would cancel the agreement. A copy of the demand is annexed hereto as Annexure “A”. The time given to defendant to perform was a reasonable period. Defendant failed to comply with the demand. Plaintiff duly cancelled the agreement on [date] per letter, annexed hereto as Annexure “B”.
6. 7. 8.
Claim – for cancellation where lex commissoria in contract 1. On [date], the parties entered into a written agreement of sale in terms of which plaintiff sold to defendant a dwelling house situate at [address]. A copy of the agreement is attached hereto and marked “A”. In terms of [clause], plaintiff was entitled to cancel the agreement in the event of breach of contract. Defendant breached the agreement by not providing guarantees as stipulated in [clause] on or before [date].
2. 3.
4. Plaintiff gave defendant due notice as required by [clause] to rectify his breach but, despite the fact that [number] days have elapsed since the giving of notice, defendant has failed to rectify his breach. 5. In the premises, plaintiff was entitled to cancel the agreement, which he did by notice to defendant dated [date]; alternatively, plaintiff hereby cancels the agreement. Pleadings/Amlers Precedents of Pleadings/M/Motor Vehicle Accidents Motor Vehicle Accidents Related subjects:
DAMAGES: DELICTUAL LEX AQUILIA WORKMEN’S COMPENSATION
Statutes: Claims for the payment of compensation for damages as a result of bodily injuries or death caused by motor vehicle accidents are regulated by statute. Claims which arose prior to 1 May 1986 fell to be considered in terms of the provisions of the Compulsory Motor Vehicle Insurance Act 56 of 1972 Repealed Act Act 56 of 1972 has been repealed by s 19 of Repealed Act Act 84 of 1986 has been repealed by s 27 of Act 56 of 1996 and its regulations. The provisions of the Motor Vehicle Accidents Act 84 of 1986 Repealed Act Act 84 of 1986 has been repealed by s 27 of Act 56 of 1996 and its regulations applied from 1 May 1986 until they were suspended by the agreement contained in the schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 Repealed Act Act 93 of 1989 has been repealed by s 27 of Act 56 of 1996 which came into operation on 1 May 1989. Since 1 May 1997, such claims have been regulated by the Road Accidents [Page 249] Fund Act 56 of 1996, which repealed both the 1986 and the 1989 Acts. In spite of the repeal, the provisions of each Act apply in respect of incidents that took place during their lifetime.
Road Accidents Fund Act 56 of 1996 s 28 Multilateral Motor Vehicle Accidents Fund v Marambana [1996] 3 All SA 8 (A); 1996 (4) SA 48 (A) Cromhout v Multilateral Motor Vehicle Accidents Fund; Santam Ltd v Williams [1997] 4 All SA 491 (A); 1998 (1) SA 563 (SCA) In this note, the emphasis is on the provisions of Act 56 of 1996. For practical purposes, the differences between these statutes are not always of any moment. Plaintiff: The plaintiff is referred to in these statutes as a “third party”. A third party is a person who has suffered loss or damage as a result of any bodily injury to her- or himself, or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle. Road Accidents Fund Act 56 of 1996 s 17(1) If a child is injured, the parent may sue, in her or his own name, for the medical expenses incurred and also on behalf of the child in respect of its bodily injuries. The child may also sue for both heads of damages, in its own name and duly assisted by its guardian. Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A) A plaintiff may rely on more than one cause of action flowing from the same event – for example, a claim for personal injuries and one for a loss of support as result of the death of a breadwinner in the same accident. Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) If the plaintiff is a black widow, married by custom to the deceased, the availability of a certificate issued in terms of section 31 of the Black Laws Amendment Act 76 of 1963 is a condition precedent to the claim and must be pleaded. Finlay v Kutoane 1993 (4) SA 675 (W) Cf Road Accident Fund v Mongalo; Nkabinde v Road Accident Fund [2003] 1 All SA 72 (SCA) Defendant: The action must be instituted against the Road Accidents Fund, a body with legal personality, or against the relevant agent appointed by the Fund. Road Accidents Fund Act 56 of 1996 s 17 Road Accident Fund v Hansa [2002] 1 All SA 143 (A); 2001 (4) SA 1204 (SCA) Only if the Fund or its agent is unable to pay the plaintiff may the driver or owner of the vehicle concerned be held liable to the plaintiff. Road Accidents Fund Act 56 of 1996 s 21 Jurisdiction: An action to enforce a claim against the Fund or an agent may be brought in any competent court within whose area of jurisdiction the incident that caused the injury or death took place. Road Accidents Fund Act 56 of 1996 s 15(2) Limitation of damages: Damages recoverable are limited by section 18. In essence, it limits the amount of damages claimable by a person who was being conveyed for reward in the motor vehicle, or who was being conveyed in the course of the business of the owner of that motor vehicle or, in the case of an employee of the driver or owner of that motor vehicle, in the course of employment, or for the purposes of a lift club where that motor vehicle is a motor car. [Page 250] Exclusion of liability: Section 19 excludes liability in certain cases, namely: (a) where the driver or owner of the vehicle did not cause the damage wrongfully and negligently; (b) where the loss or damage suffered was incurred whilst the person was being conveyed for reward on a motorcycle; (c)
where the person who suffered the injuries was being conveyed in the motor vehicle and is a member of the household or is responsible in law for the maintenance of the driver of the motor vehicle concerned and was being conveyed in or on the motor vehicle.
The onus in respect of (a) rests on the plaintiff, and the defendant has to show that the plaintiff falls within exceptions (b) or (c). Bray v Protea Assurance Co Ltd 1990 (1) SA 776 (T) at 780 Dodd v Multilateral Motor Vehicle Accidents Fund [1997] 1 All SA 68 (A); 1997 (2) SA 763 (A) Liability: The liability of the Fund is Aquilian and it is necessary for the plaintiff to make allegations relating to wrongfulness, negligence and causation. See: DAMAGES: DELICTUAL, LEX AQUILIA, NEGLIGENCE It is further necessary to allege and prove that the loss suffered was caused by or arose out of the driving of the vehicle. Protea Assurance Co Ltd v Matinise 1978 (1) SA 963 (A) Mokoele v National Employers’ General Insurance Co Ltd 1984 (1) SA 27 (T) Miller v Road Accident Fund [1999] 4 All SA 560 (W)
Presumptions: Section 20 creates certain presumptions regarding the driving of a motor vehicle. If the vehicle is propelled by any mechanical, animal or human power or by gravity or momentum, it is deemed to be driven by the person in control of it. A person who has placed or left the vehicle at any place is deemed to be driving that vehicle while it moves from that place as a result of gravity or while it is stationary at that place or at a place to which it moved from the first-mentioned place as a result of gravity. Khoza v Netherlands Insurance Co of SA Ltd 1969 (3) SA 590 (W) It is also presumed that a motor vehicle which has been placed or left at any place was so placed or left by its owner. Motor vehicle: A motor vehicle, as defined, must have caused the incident that gave rise to the damage. Road Accidents Fund Act 56 of 1996 s 1 sv “motor vehicle” Chauke v Santam Ltd 1997 (1) SA 178 (A) Norris v Road Accident Fund [2001] 4 All SA 321 (A) Mutual & Federal Insurance Co Ltd v Day [2001] 4 All SA 6 (SCA); 2001 (3) SA 775 (SCA) Damages: Loss or damage must have been suffered as the result of a bodily injury to the third party or of the death or any bodily injury to any other person. The provisions of Uniform rule 18(10) and (11) must be stressed. See : DAMAGES: DELICTUAL The prior demand: The particulars of claim must also contain an averment that the claim for compensation, as required, was sent to the defendant and that the prescribed period of 120 days has lapsed. Road Accidents Fund Act 56 of 1996 s 24 John v Road Accident Fund [1999] 4 All SA 355 (T); 2000 (1) SA 459 (T) [Page 251] The form must comply in substance with the requirements of the Act and regulations. Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A) SA Eagle Insurance Co Ltd v Pretorius [1998] 1 All SA 131 (A); 1998 (2) SA 656 (SCA) SA Eagle Insurance Co Ltd v Van der Merwe NO [1998] 2 All SA 527 (A); 1998 (2) SA 1091 (SCA) Non-compliance must be specifically pleaded by the defendant. Nkisimane v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 439 If the Fund or the agent does not, within sixty days from the date on which the claim was sent or delivered, object to its validity, the claim is deemed to be valid in all respects. Road Accidents Fund Act 56 of 1996 s 24(5) Cf Malokoane v Multilateral Motor Vehicle Accidents Fund [1998] 4 All SA 486 (A); 1999 (1) SA 544 (A) Plea: The following pleas are fairly standard: (a)
(b) (c)
a plea of prescription; Road Accidents Fund Act 56 of 1996 s 23 Moloi v Road Accident Fund [2000] 4 All SA 576 (SCA); 2001 (3) SA 546 (SCA) denial of negligence; contributory negligence; See : CONTRIBUTORY NEGLIGENCE
(d) the joinder or conditional joinder of another. Hanekom v Multilateral Motor Vehicle Accidents Fund (De Lange, Third Party) [1997] 4 All SA 691 (T); 1998 (1) SA 634 (T) PRECEDENTS Claim – against Road Accidents Fund for damages that arose before the Act 56 of 1996 1. The plaintiff is [describe]. 2. The defendant is the Road Accidents Fund, a legal person incorporated in terms of the Road Accidents Fund Act 56 of 1996, with its principal place of business at [describe]. 3. In terms of section 2(2) of Act 56 of 1996, the defendant took over all the rights and obligations of the Multilateral Motor Vehicle Accidents Fund which ceased to exist as from 1 May 1997. 4. The claim herein set out was, prior to 1 May 1997, the responsibility of the Multilateral Motor Vehicle Accidents Fund pursuant to the provisions of the regulations promulgated in terms of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989
Repealed Act Act 93 of 1989 has been repealed by s 27 of Act 56 of 1996 5. On [date] and at [place], a motor vehicle collision occurred between a motor vehicle with registration number [detail], driven by one AB (the first insured driver), and a motor vehicle with registration number [detail], driven by one CD (the second insured driver). As a result, the plaintiff, who was a pedestrian, was injured when the two vehicles collided with her.
6.
7. The collision was caused by the sole negligence of the first insured driver, who was negligent in one or more of the following respects: (a) he made a right-hand turn in the face of oncoming traffic at a stage when it was dangerous or inopportune to do so; (b)
he failed to keep a proper lookout;
[Page 252] (c) he drove too fast under the prevailing traffic conditions; (d) he failed to apply the brakes of the vehicle timeously or at all. 8. In the alternative to paragraph 7, the collision was caused by the sole negligence of the second insured driver, who was negligent in one or more of the following respects: [detail]. 9. In the further alternative to paragraphs 7 and 8, the collision was caused by the negligence of both said drivers. As a result, the plaintiff sustained the following bodily injuries: [detail].
10.
11. Particulars of the nature and extent of these injuries are set out in the medico-legal report of Dr QR, which report is annexed hereto. 12. As a result of these injuries sustained by the plaintiff, she: (a) Was hospitalised. [detail]. (b) Had to undergo medical treatment. [detail]. (c) Will have to undergo further medical treatment. [detail]. (d) Suffered a loss of income. [detail]. (e) Will suffer a loss of income in future. [detail]. (f) Suffered a loss of amenities of life. [detail]. (g) Will suffer a further loss of amenities of life. [detail]. (h) Experienced pain and suffering. (i) Will experience further pain and suffering [detail]. (j) Is disfigured. [detail]
(The particulars appear from the annexed report of Dr QR.) As a further result, the plaintiff suffered damages in the amount of [Rx], calculated as follows: (a) (b) (c) (d) (e) (f) (g)
13.
Non-provincial-hospital expenses. Future non-provincial-hospital expenses. Medical expenses. Future medical expenses. Loss of earnings. Future loss of earnings. General damages for pain, suffering, loss of amenities of life and disfigurement.
14. The plaintiff has complied with the provisions of Act 56 of 1996 relating to time notices and time periods and the prescribed period has elapsed. WHEREFORE the plaintiff claims: (a) (b) (c)
Payment of [Rx]. Interest thereon at the prescribed rate from 14 days after the date of judgment. Costs.
Claim – against Road Accidents Fund 1. The plaintiff is [describe]. 2. The defendant is the Road Accidents Fund, a legal person incorporated in terms of the Road Accidents Fund Act, 56 of 1996, with its principal place of business at [describe]. 3. On [date] and at [place], a motor vehicle collision occurred between a motor vehicle with registration number [detail], driven by one AB (the first insured driver), and a motor vehicle with registration number [detail], driven by one CD (the second insured driver). 4. As a result, the plaintiff, who was a passenger of the second insured driver, was injured when the two vehicles collided. 5. The collision was caused by the sole negligence of the first insured driver, who was negligent in one or more of the following respects: [detail]. 6. In the alternative to paragraph 5, the collision was caused by the sole negligence of the second insured driver, who was negligent in one or more of the following respects: [detail]. [Page 253] 7. In the further alternative to paragraphs 7 and 8, the collision was caused by the negligence of both said drivers. As a result, the plaintiff sustained the following bodily injuries: [detail].
8.
9. Particulars of the nature and extent of these injuries are set out in the medico-legal report of Dr QR, which report is annexed hereto.
10. As a result of these injuries sustained by the plaintiff, she: [as before]. 11. As a further result, the plaintiff suffered damages in the amount of [Rx], calculated as follows: [as before]. 12. In the event of its being found that the collision was due to the sole negligence of the second insured driver, the plaintiff’s claim is limited to R25 000,00 and excludes any claim for general damages in terms of section 18(1) of Act 56 of 1996. 13. The plaintiff has complied with the provisions of Act 56 of 1996 relating to time notices and time periods and the prescribed period has elapsed. WHEREFORE the plaintiff claims: (a) Payment of [Rx], alternatively, R25 000,00. (b) Interest thereon at the prescribed rate from 14 days after the date of judgment. (c) Costs. Claim – against Road Accidents Fund and third party The plaintiff is [describe].
1.
2. The first defendant is the Road Accidents Fund, a legal person incorporated in terms of the Road Accidents Fund Act 56 of 1996, with its principal place of business at [describe]. 3. The second defendant is CD [detail]. 4. On [date] and at [place], a motor vehicle collision occurred between a motor vehicle with registration number [detail], driven by one AB (the first insured driver), and a motor vehicle with registration number [detail], driven by the second defendant. 5. As a result, the plaintiff, who was a passenger of the second defendant, was injured when the two vehicles collided. 6. The collision was caused by the sole negligence of the first insured driver, who was negligent in one or more of the following respects: [detail]. 7. In the alternative to paragraph 5, the collision was caused by the sole negligence of the second insured driver, who was negligent in one or more of the following respects: [detail]. 8. In the further alternative to paragraphs 7 and 8, the collision was caused by the negligence of both said drivers. As a result, the plaintiff sustained the following bodily injuries: [detail].
9.
10. Particulars of the nature and extent of these injuries are set out in the medico-legal report of Dr QR, which report is annexed hereto. 11. As a result of these injuries sustained by the plaintiff, she: [as before]. 12. As a further result, the plaintiff suffered damages in the amount of [Rx], calculated as follows: [as before]. 13. In the event of its being found that the collision was due to the sole negligence of the second defendant, the plaintiff’s claim against the first defendant is limited to R25 000,00 and excludes any claim for general damages in terms of section 18(1) of Act 56 of 1996 and the second defendant is liable for any shortfall. 14. The plaintiff has complied with the provisions of Act 56 of 1996 relating to time notices and time periods and the prescribed period has elapsed.
WHEREFORE the plaintiff claims: (a) (b)
Against first defendant, payment of [Rx]; alternatively, payment of R25 000,00. Against second defendant, in the event of judgment against first defendant of R25 000,00, payment of [Rx– R25 000,00].
(c) Interest thereon at the prescribed rate from 14 days after the date of judgment. (d) Costs. [Page 254] Claim – against agent of Road Accidents Fund 1. The plaintiff is [describe]. 2. The defendant is [describe], a duly appointed agent of the Road Accidents Fund, appointed in terms of section 8 of the Road Accidents Fund Act 56 of 1996, with its principal place of business at [describe]. [As before.] Claim – general Plaintiff is [name], an adult male machine operator who resides at [address] and who was born on [date].
1.
2. Defendant is [name] Insurance Company Limited, a company duly incorporated with limited liability according to the company laws of the Republic of South Africa which has its principal place of business within the area of jurisdiction of this honourable court at [address]. 3. At all times material hereto and more particularly on [date], defendant was an appointed agent within the meaning of the Road Accidents Act 56 of 1996. 4. On [date] at [place], vehicle X, which was being driven by [name], collided with plaintiff who was a pedestrian. 5. The aforesaid collision was caused exclusively by the negligence of the driver of the vehicle who was negligent in one or more of the following respects: [detail]. As a result of the collision, plaintiff sustained the following bodily injuries: [detail].
6.
7. As a result of the injuries sustained in the collision, plaintiff has suffered damages in the amount of [amount] which is calculated as follows: (a) hospital expenses – [amount] (b) estimated future medical expenses – [amount] (c) loss of earnings – [amount] (d) general damages inclusive of loss of earning capacity, pain and suffering, loss of amenities of life and permanent disability – [amount] 8. The nature and extent of the injuries described in paragraph 6 above are set out in a medico-legal report dated [date] drawn by an orthopaedic surgeon [name]. The report is annexed hereto and marked “A”. 9. As a result of the injuries sustained in the collision, plaintiff: (a) experienced pain and suffering;
(b) suffered a loss of amenities of life; (c) suffered a 15% loss of earning capacity; (d) has been disfigured and disabled. 10. The nature, effect and duration of the pain and suffering, loss of amenities of life, loss of earning capacity, disfigurement and disability are set out in Annexure “A” hereto. 11.
(a)
The sum of [amount] in respect of hospital expenses has been calculated in the manner set out in Annexure “B” hereto. (b)
Estimated future medical expenses are calculated as follows: Surgery [for example, to the cervical spine] – [amount] Provision for conservative therapy over [for example, 15 years, at [Rx] per annum] – [amount] [total]
(c) The sum of [amount] in respect of loss of earnings has been calculated over a period of [state period] from [date] to [date] at a weekly wage of [amount]. (d)
The amount claimed in respect of general damages, which is inclusive of loss of earnings capacity, pain and suffering, loss of amenities of life, disfigurement and permanent disability, is a global figure. It is not reasonably practicable to apportion to each of these subheadings of damages a specified portion of the amount claimed.
[Page 255] Due notice, as prescribed, has been given to defendant and the prescribed period has since elapsed.
12.
13. In the premises, defendant is liable to compensate plaintiff in the aforesaid sum [amount] which amount or any portion thereof defendant has failed to pay. WHEREFORE plaintiff prays for judgment as follows: (a) (b)
Payment of the amount [Rx]. Interest on the amount claimed at the rate of [percentage] per annum, calculated 14 days from date of judgment to date of payment.
Claim – limited by section 18(1)(a) of Act 56 of 1996 At the time of the accident aforesaid: 1. The plaintiff was a passenger in the aforementioned vehicle and was being conveyed on the said vehicle in the course of the business of the owner of the said motor vehicle, namely [name of owner]. 2. Alternatively to paragraph 1, plaintiff was being conveyed in the course of his employment as servant of the owner of the said vehicle, namely [name of owner]. Plea – of contributory negligence 1. Defendant denies each and every allegation therein contained as if herein so set out and, in particular, denies that the driver was negligent either as alleged or at all. 2. In the event of its being held by the above honourable court that the driver was negligent, which is still denied, then and in that event defendant denies that his negligence was the cause of the collision. The collision was caused by the negligence of plaintiff, who was negligent in one or more of the following respects: (a)
he failed to keep a proper lookout; (b) (c)
he failed to apply his brakes timeously or at all; he failed to exercise proper or adequate control over his vehicle.
3. In the event of its being held by the above honourable court that the driver was negligent and that his negligence was a cause of the collision, all of which is still denied, then and in that event defendant avers that plaintiff was also negligent and that his negligence contributed to the collision. Particulars of plaintiff’s negligence are set out in the preceding subparagraph. Plea – of contributory negligence – seatbelt First defendant denies each and every allegation therein contained as if herein so set out and denied.
1.
2. First defendant avers that the aforesaid collision occurred as a result of an inevitable accident and in circumstances free of negligence on the part of the driver of motor vehicle [registration number]. 3. In the alternative to paragraphs 1 and 2 above and in the event of its being held by the above honourable court that the driver of the said motor vehicle was negligent, which is still denied, then and in that event first defendant pleads that: (a) plaintiff at all material times negligently failed to make use of a seatbelt which was available for use by her in motor vehicle [registration number] and that she reasonably ought to have made use of the seatbelt; (b) the aforesaid negligent omission by plaintiff was a cause of or contributed to the extent of the injuries which she sustained in the aforementioned collision. Counterclaim – conditional counterclaim against second plaintiff 1. The parties in reconvention are referred to as in convention. 2. This counterclaim is against second plaintiff and is conditional upon defendant’s defence to first plaintiff ’s action failing. [Page 256] 3. At approximately [time] on [date] and on the main road [location], motor vehicle [registration number] driven by second plaintiff overturned whilst the mechanical horse and trailer [registration numbers] were in the process of overtaking the said motor vehicle. 4. In the event of its being held by the above honourable court that: (a) the driver of the insured vehicles was negligent, (b) his negligence contributed to the collision, (c) second plaintiff sustained bodily injuries in the collision, (d) first plaintiff suffered damages as a result of the said injuries, (e) defendant is liable for the said damages, defendant avers that: (i) the said collision was occasioned partly by the negligence of second plaintiff, who was negligent as is set out in defendants’ plea; (ii) second plaintiff is a joint wrongdoer in terms of the provisions of Act 34 of 1956;
(iii) second plaintiff is obliged to make a contribution to defendant in respect of any amount which defendant may pay to first plaintiff in respect of the said damages; second plaintiff disputes his liability for a contribution.
(iv)
WHEREFORE defendant prays: (a) An order declaring that second plaintiff is obliged to contribute to any amount which defendant is obliged to pay first plaintiff. (b)
An order determining the amount of the contribution.
Special plea – prescription 1. Plaintiff ’s claim arose as a result of a motor vehicle collision, which occurred on [date]. 2. Plaintiff ’s summons was served on defendant herein on [date]. 3. Plaintiff ’s claim, in so far as it relates to paragraph [paragraph number] of the particulars of claim, prescribed prior to the issue of summons in terms of the provisions of [set out statutory provision.] WHEREFORE defendant prays that that portion of plaintiff ’s claim which prescribed as set out, above, be dismissed with costs. Pleadings/Amlers Precedents of Pleadings/N/Negligence Negligence Related subjects:
DAMAGES LEX AQUILIA MOTOR VEHICLE ACCIDENTS
General: Negligence is usually a requirement for delictual liability and that is the focus of this head. Onus: The plaintiff must allege and prove that the defendant was negligent. Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T) It is not sufficient to allege negligence alone. The particular grounds of negligence must be detailed. Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C) SA Fish Oil Producers’ Association (Pty) Ltd v Shipwrights & Engineers Holdings Ltd 1958 (1) SA 687 (C) If a plaintiff relies on a breach of duty of care, her or she must set out the facts that could or should have been foreseen by the defendant. Whitney Erf Thirteen (Pty) Ltd v Loth Lorien Waste Paper Dealers 1978 (3) SA 832 (W) Minister of Defence v Mkhatswa [1997] 3 All SA 376 (W) Beurain h/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921 (O) [Page 257] Nature of onus: The onus is on the plaintiff to establish that a reasonable person (diligens paterfamilias) in the position of the defendant: (i) would foresee the reasonable possibility of the conduct’s (whether an act or omission) injuring another’s person or property, and causing that person patrimonial loss; (ii) would take reasonable steps to guard against such occurrence, and (iii) that the defendant failed to take such reasonable steps. Kruger v Coetzee 1966 (2) SA 428 (A) Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) Kruger v Carlton Paper of SA (Pty) Ltd [2002] 2 All SA 351 (A); 2002 (2) SA 335 (SCA) Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA); 2002 (6) SA 431 (SCA) Whether a reasonable person would have taken steps to guard against foreseeable harm involves a value judgement. Four useful considerations are: the degree or extent of the risk created; the gravity of the possible consequences; the utility of the actor’s conduct; and the burden of eliminating the risk.
City Council of Pretoria v De Jager [1997] 1 All SA 635 (SCA); 1997 (2) SA 46 (SCA) Cape Metropolitan Council v Graham [2001] 1 All SA 215 (A); 2001 (1) SA 1197 (SCA) Res ipsa loquitur : The so-called doctrine of res ipsa loquitur applies where a plaintiff proves facts from which an inference of negligence may, in the absence of an explanation, be drawn. It is then for the defendant to displace this prima facie inference by an explanation. There is no onus on the defendant to establish the correctness of the explanation. This does not mean that the defendant can rely on mere theories or hypothetical suggestions. Arthur v Bezuidenhout & Mieny 1962 (2) SA 566 (A) Madyosi v SA Eagle Insurance Co Ltd 1989 (3) SA 178 (C) at 188; 1990 (3) SA 442 (A) Macleod v Rens [1997] 1 All SA 143 (E); 1997 (3) SA 1039 (E) Molefe v Mahaeng [1998] 4 All SA 423 (A); 1999 (1) SA 562 (SCA) Swartz v Delport [2002] 2 All SA 309 (A) Negligence of the plaintiff: If the plaintiff establishes that the defendant was negligent, the defendant bears the onus of alleging and proving negligence on the part of the plaintiff before an apportionment of damages can take place. See : CONTRIBUTORY NEGLIGENCE Presumptions of negligence: If there is a statutory presumption of negligence against the defendant such that the plaintiff need not prove negligence, it is, as a general rule, not necessary for the plaintiff to allege negligence, provided that facts are alleged that show the applicability of the presumption. South African Railways & Harbours v Du Preez 1953 (1) SA 81 (C) Regard should, however, be had to the discussion under VELD FIRES where, under similar circumstances, another approach is adopted. Imperitia culpae adnumeratur : If a skilled person’s diligence is to be determined, the measure against which it is to be tested is the general level of skill [Page 258] and diligence possessed and exercised at the time by members of the branch of the profession to which the practitioner belongs. Van Wyk v Lewis 1924 AD 438 Durr v ABSA Bank Ltd [1997] 3 All SA 1 (A); 1997 (3) SA 448 (SCA) Thoroughbred Breeders’ Association of South Africa v Price Waterhouse [2001] 4 All SA 161 (A); 2001 (4) SA 551 (SCA) Meaning of gross negligence: See MV Stella Tignas: Transnet Ltd t/a Portnet v Owners of the MV Stella Tignas 2003 (2) SA 473 (SCA). PRECEDENTS See : LEX AQUILIA, MOTOR VEHICLE ACCIDENTS Claim – pure economic loss [From Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd [1996] 1 All SA 383 (T) at 385a–386h; 1996 (2) SA 393 (T) at 396C–398C.] 1. For a number of years prior to 5 September 1990 there existed between the plaintiff and the defendant a business relationship in terms of which the plaintiff sold and delivered steel to the defendant from time to time. 2. The defendant at all times complied with its obligations to the plaintiff relating to the payment of the purchase price in respect of the said sales, and the defendant accordingly established a favourable credit rating with the plaintiff, as a result of which the plaintiff supplied steel to the defendant on favourable terms. 3. At all material times during the existence of the aforesaid business relationship, the defendant’s registered name was A & W Engineering (Pty) Ltd, and it traded as A & W Engineering. 4. On 5 September 1990 the defendant entered into an agreement with one C on behalf of a company to be incorporated in terms of which: 4.1 the defendant sold its business to C in his stated capacity, and a copy of the deed of sale and annexures is annexed hereto; 4.2 4.3
the defendant agreed to change its name so that “A & W Engineering” did not form part of its name; C, in his stated capacity was entitled to use the words “A & W Engineering” as part of its name, and to trade under that name. 5.
Pursuant to the said agreement and after its conclusion: 5.1 C did not incorporate a new company, but caused a change of name to be effected in respect of an existing company to A and W Engineering (Pty) Ltd (“the purchaser”);
5.2 the purchaser, with the knowledge and consent of the defendant, assumed the rights and obligations which would have devolved upon the newly incorporated company in terms of the said agreement; 5.3 5.4
the defendant changed its name to its present name; the purchaser continued to conduct the business which had previously belonged to the defendant and, pursuant thereto, purchased steel from the plaintiff;
5.5 the plaintiff continued to sell steel to the purchaser on the same credit terms and conditions that had previously applied in respect of its sales of steel to the defendant in the bona fide belief that it was in fact still selling the steel to the defendant; 5.6 orders to the plaintiff for further supplies of steel were initiated by the same individuals who had initiated orders prior to 5 September 1990; 5.7
there were no indications that the defendant’s business had been sold or relocated, and deliveries of steel continued to be effected by the plaintiff at the same address as prior to the sale;
[Page 259] 5.8
the plaintiff continued not to charge general sales tax on steel supplied by it to the purchaser, on the strength of the original exemption certificate which was furnished to it by defendant prior to 5 September 1990, the plaintiff not having been advised of any new or other certificate in respect of the purchaser;
5.9 the managing director of the defendant was employed as a manager by the purchaser; 5.10 the defendant and the purchaser did not advertise the sale in terms of section 34 of the Insolvency Act 24 of 1936. At all material times hereto: 6.1
6.2
6.
the purchaser was a credit risk, and the plaintiff would not have sold steel to it, or would not have sold steel to it on the same favourable credit terms and conditions on which it had sold steel to the defendant, had it been aware that the business had been sold by the defendant to the purchaser; the plaintiff ran a significant credit risk by continuing to sell steel to the purchaser on the same favourable credit terms and conditions on which it had sold steel to the defendant;
6.3 the defendant was aware or ought to have been aware of the facts set out above. 7. In the premises: 7.1 the defendant had a duty in law to disclose to the plaintiff that it had sold the business to the purchaser; 7.2 the defendant breached the said duty by failing to make the said disclosure, such failure in itself being negligent; 7.3
the defendant’s failure to so disclose was accordingly wrongful and unlawful.
8. The plaintiff has suffered damages as a result of the defendant’s unlawful conduct in the amount of [Rx], calculated as follows: 8.1 the plaintiff supplied steel on favourable credit terms to the purchaser; 8.2 the purchaser failed to pay an amount of [Rx] which was owing to the plaintiff pursuant to steel sold to it by the plaintiff on credit;
8.3 the purchaser has been wound up at the instance of the defendant; 8.4 the plaintiff will not recover the amount from the purchaser in liquidation; 8.5 had the defendant not breached its said duty, the plaintiff would either not have sold the steel to the purchaser, or would have sold it to the purchaser on credit terms that would have prevented the said loss. Pleadings/Amlers Precedents of Pleadings/N/Negligent Misrepresentation Negligent Misrepresentation Related subjects: FRAUD INNOCENT MISREPRESENTATION Extra-contractual misstatement: A negligent misstatement made in an extra-contractual context or in a precontractual setting may give rise to a claim for damages under the actio legis Aquiliae (see : LEX AQUILIA). The test for wrongfulness in both instances is the same. ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA); 2003 (1) SA 176 (SCA) The plaintiff must allege and prove: (a) a representation or statement that (i) was false; Kern Trust (Edms) Bpk v Hurter 1981 (3) SA 607 (C) at 618 (ii) was wrongful – that is, that the defendant had a legal duty towards the plaintiff not to make a misrepresentation or misstatement; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C) at 726 [Page 260] (iii) was made negligently – for example, that the defendant failed to take reasonable care in establishing the correctness of the representation; and (iv) caused the plaintiff patrimonial loss (provided that the damages are not too remote); International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) (b)
the extent of damages suffered. Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) Cf Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (SCA) See : DAMAGES: DELICTUAL
Negligent misrepresentation giving rise to a contract: A party wishing to avoid a contract or to claim damages because of negligent misrepresentation that gave rise to a contract must allege and prove: (a)
(b) (c)
that there was a representation Schmidt v Dwyer 1959 (3) SA 896 (C) Kern Trust (Edms) Bpk v Hurter 1981 (3) SA 607 (C) that such representation was false, that the representation was made by the defendant (or the defendant’s agent); Karabus Motors (1959) Ltd v Van Eck 1962 (1) SA 451 (C)
(d) that the representation was material – that is, would have influenced a reasonable person to enter into the contract; Faulkner v Freeman 1985 (3) SA 555 (C) Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A) (e)
that the representation was intended to induce the person to whom it was made to enter into the transaction; Novick v Comair Holdings Ltd 1979 (2) SA 116 (W) at 150 (f) that the representation did, in fact, induce the contract; Novick v Comair Holdings Ltd 1979 (2) SA 116 (W) Cockroft v Baxter 1955 (4) SA 93 (C) Hulett v Hulett 1992 (4) SA 291 (A) at 210–211 (g)
if damages are claimed, the quantum thereof.
Circumstances determine the vital questions of unlawfulness and causation. Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 570 Silence as misrepresentation: The question is one of wrongfulness, similar to that of omissions in the general context of delict. The duty to speak depends on community convictions. It is not the norm that one contracting party has to inform the other about everything known by the former. Parties are expected to speak when the information falls within their exclusive knowledge and the information is such that the duty to communicate would have been mutually recognised by honest persons. ABSA Bank Ltd v Fouche [2002] 4 All SA 246 (SCA); 2003 (1) SA 176 (SCA) McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C) Relief: The relief claimable is: in the case of a sale, the relief available under the aedilitian remedies; Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A) See : LATENT DEFECTS [Page 261]
(i)
(ii)
cancellation of the contract and restitution; Probert v Baker 1983 (3) SA 229 (D) damages without the cancellation of the contract; or cancellation and damages.
(iii) (iv)
PRECEDENT Claim – for damages as result of negligent misrepresentation During [state period], a certain [A] was desirous of purchasing goods from plaintiff on credit.
1.
2. Defendant by letter dated [date] represented to plaintiff that [A] was then in a sound financial position and might safely be trusted to purchase goods on credit up to an amount of [amount]. 3. Defendant was, at all material times, the banker of [A] and provided the report at the request and behest of [A]. 4. Defendant knew that plaintiff would act on the assumption that the report is factually correct and owed a duty of care towards plaintiff to provide correct information. 5. The report was material and was made with the intention of inducing plaintiff to act thereon. 6. Plaintiff, relying on the truth thereof, supplied goods to [A] on credit to an amount of [Rx]. 7. The representation was false in that [A] was then not in a sound financial position and could not safely be trusted with goods on credit to the sum of [amount] but was in insolvent circumstances and unable to pay plaintiff any amount 8. Defendant was negligent in making the representation because it did not make proper inquiries as to the financial position of its client. 9. As a consequence of defendant’s representation, plaintiff has suffered damages in an amount of [Rx] calculated as follows:
[detail]. Pleadings/Amlers Precedents of Pleadings/N/Negotiorum Gestio (Unauthorised Administration) Negotiorum Gestio (Unauthorised Administration) [This text was originally written by Mr Justice DH Van Zyl.] Related subject: CONDICTIO INDEBITI Definition: Negotiorum gestio (“management of affairs”) is the voluntary management by one person (the gestor) of the affairs of another (the dominus) without the consent or knowledge of the latter. Negotiorum gestio does not create a consensual obligation but nevertheless gives rise to reciprocal rights and duties. Virtually any act or activity that amounts to the conduct, administration or management of another’s affairs may constitute negotiorum gestio. Examples are: Amod Salie v Ragoon 1903 TS 100 (repairing of a leased building; preservation of goods or protection of property) Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) (payment of a debt) [Page 262] Essentials: The requisites for a claim arising from negotiorum gestio are the following: (a) Management of the affairs of another. The affairs managed by the gestor must be those of another. Turkstra v Massyn 1959 (1) SA 40 (T) at 47 (b)
Dominus unaware of management of affairs. The dominus must be ignorant of the fact that her or his affairs are being managed. Williams’ Estate v Molenschoot & Schep (Pty) Ltd 1939 CPD 360 at 369 Turkstra v Massyn 1959 (1) SA 40 (T) at 47 North West Arts Council v Sekhabi [1996] 3 All SA 361 (B) A dominus, who is aware of the management of her or his affairs and does nothing about it, is regarded as having tacitly authorised it.
(c)
Animus negotia aliena gerendi. The intention to manage the affairs of another is perhaps the most significant requisite for a claim based on negotiorum gestio. This includes the intention to claim reimbursement for expenses necessarily or usefully incurred by the gestor. Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T) at 437 Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) at 383 Maritime Motors (Pty) Ltd v Von Steiger 2001 (2) SA 584 (SE)
(d) Utiliter coeptum. The management of affairs should be conducted in a reasonable way (utiliter coeptum), at least at the commencement of the gestio. The result of this is that a claim will arise even if the gestio is ultimately unsuccessful. A gestor who employed an unreasonable method does not have a claim for disbursements. The actions: The actions arising from negotiorum gestio are the actio negotiorum gestorum contraria and the actio negotiorum gestorum directa. The former is the action of the gestor for the recovery of the necessary or useful expenses or disbursements made, or the damages suffered by her or him, during the course of the gestio. The latter is available to the dominus for purposes of exacting compliance by the gestor with her or his duties in respect of the gestio. In cases where the requirements for a proper claim based on negotiorum gestio are not present but a claim arising from unjustified enrichment may be instituted by the gestor, the action is sometimes referred to as the actio negotiorum gestorum utilis or the “extended” actio negotiorum gestorum. ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C) Relief claimable by the gestor : The rights of the gestor include: (a) the right to be reimbursed for necessary and useful expenses; Klug & Klug v Penkin 1932 CPD 401 at 404 New Club Garage v Milborrow & Son 1931 GWL 86 at 99–100 (b) the right to claim damages for lost interest or income; Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) at 387 (c)
(d)
the right to be released from obligations incurred during the course of the gestio; New Club Garage v Milborrow & Son 1931 GWL 86 at 100
the right to exercise a lien in respect of the property of the dominus in her or his possession pending satisfaction of the claim. New Club Garage v Milborrow & Son 1931 GWL 86 [Page 263] Relief claimable by the dominus : The duties of the gestor, which may be enforced by the dominus, are: (a)
to complete the negotiorum gestio; Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd 1968 (1) SA 571 (A) at 580
(b) to render an account of the management; McEwen NO v Khader 1969 (4) SA 559 (N) at 562 (c)
to deliver that which he or she has received from or which has otherwise accrued as a result of the gestio; Grant’s Farming Co Ltd v Attwell 9 HCG 91
(d) to make proper, diligent and reasonable performance of the gestio, failing which he or she may incur liability for loss and damage resulting from her or his fault, including liability for omissions. The standard of liability attaching to the gestor is the “ordinary diligence” required of “a reasonably prudent person under the circumstances”. Boyce NO v Bloem 1960 (3) SA 855 (T) at 866 Negotiorum gestio and unjustified enrichment: If the requirements of animus negotia aliena gerendi or utiliter coeptum are not present, the gestor may still have a claim in the form of the “extended” actio negotiorum gestorum (or actio negotiorum gestorum utilis) by virtue of the unjustified enrichment of the dominus. ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C) There are four main instances in which the gestor’s claim is limited to the extent of the unjustified enrichment of the dominus. They are: (a) where the gestor has managed the affairs of a minor; Van Rensburg v Straughan 1914 AD 317 at 329–330 (b)
where the gestor has knowingly managed another’s affairs with the intention of benefiting himself alone (sui lucri causa); Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T) at 438 Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C)
(c) where the gestor manages the affairs of another in the mistaken but bona fide belief that they are his own; Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) (d)
where the affairs are managed contrary to the express wishes of the dominus. Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T) at 438 B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) at 295
PRECEDENTS Claim – for repayment of debt paid 1. At all relevant times, defendant was indebted to [name] in the amount of [Rx]. 2. On [date] at [place], plaintiff paid to [name] the sum of [amount] on defendant’s account. [Page 264] 3. In so paying, the plaintiff had the bona fide intention of benefiting defendant, who was unaware of the payment, and in fact benefited defendant inasmuch as his debt to [name] became discharged. 4. Plaintiff intended at all times to be recompensed in respect of the payment made. Claim – where payment is made in plaintiff ’s own interest On [date] at [place], plaintiff, t/a [name], ordered certain goods from [name].
1.
2. Delivery of the goods was refused by [name] by virtue of the fact that defendant, who had sold the aforesaid business to plaintiff, and while trading as [name], failed to pay his indebtedness to [name] in the sum of [amount]. 3. In order to ensure the continuation of supply and to minimise his loss, plaintiff paid to [name] the sum of [amount]. 4. In so doing, plaintiff advanced the affairs of defendant inasmuch as his indebtedness to [name] was discharged. As a result, defendant was unjustly enriched at the expense of plaintiff in the sum of [amount].
5.
Claim – for account against gestor 1. During the period [date] to [date], defendant as negotiorum gestor managed the affairs of plaintiff by taking over the management of plaintiff’s business known as [name] at [place]. In so doing, defendant sold various items held in stock in the said business.
2.
3. Despite demand, defendant has failed to render an account of his management of the business, or to pay to plaintiff the profits realised from his trading. WHEREFORE plaintiff claims: (a) An order for a statement and debatement of account by defendant in respect of his management of plaintiff’s affairs. (b) Payment to plaintiff of such amount found to be due to him after payment to defendant of all reasonable expenses incurred by him during his management of plaintiff’s affairs. Pleadings/Amlers Precedents of Pleadings/N/Novation Novation Related subject:
COMPROMISE
Novation and compromise: A contract of novation is a contract that extinguishes an existing obligation and, at the same time, replaces it with a fresh obligation. Acacia Mines Ltd v Boshoff 1958 (4) SA 330 (A) Tauber v Von Abo 1984 (4) SA 482 (E) Weltmans Custom Office Furniture (Proprietary) Limited (in liquidation) v Whistlers CC [1997] 3 All SA 467 (C) It presupposes the existence of a valid contract between the parties. A void debt or invalid contract can, therefore, not be novated. Gibson v Van der Walt 1952 (1) SA 262 (A) Acacia Mines Ltd v Boshoff 1958 (4) SA 330 (A) The validity of a compromise, on the other hand, is not dependent upon the validity of the compromised obligation. Onus: The party alleging the novation must allege and prove it. An intention to novate is not presumed. [Page 265] The intention to novate must be proved either by an express declaration of the parties or by way of necessary inference from all the circumstances of the case (including the conduct of the parties). Electric Process Engraving & Stereo Co v Irwin 1940 AD 220 French v Sterling Finance Corp (Pty) Ltd 1961 (4) SA 732 (A) Lieberman v Santam Ltd 2000 (4) SA 321 (SCA) An agreement which merely confirms the original obligation does not amount to a novation, neither does the provision of a cheque or the acknowledgement of a debt. Estate Liebenberg v Standard Bank of SA Ltd 1927 AD 502 SA Breweries Ltd v Ribeiro t/a Doc’s Liquor Merchants [1999] 4 All SA 627 (W); 2000 (1) SA 803 (W) An agreement to grant an extension of time is normally more in the nature of a pactum de non petendo and it is unlikely that such extension will amount to a novation. Estate Liebenberg v Standard Bank of SA Ltd 1927 AD 502 Optima Fertilizers (Pty) Ltd v Turner 1968 (4) SA 29 (D)
PRECEDENT Plea – of extinction of obligation 1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff granted to defendant an option to purchase his property at [location] for a sum of [amount]. A copy of the agreement is attached hereto and marked “A”. 2. On [date] at [place], the parties novated the aforesaid agreement by agreeing in writing that plaintiff would be granted the right of pre-emption to purchase the said property if and when defendant decided to sell it at a price equivalent to that offered by the highest other offeror but at a maximum price of [amount]. A copy of this agreement is attached hereto and marked “B”. 3. Defendant denies, therefore, that plaintiff was entitled to exercise the option by accepting the offer contained in Annexure “A”. Pleadings/Amlers Precedents of Pleadings/N/Nuisance Nuisance Cause of action: A person who is in occupation of a piece of land commits a nuisance by creating (or allowing) a state of affairs on the land whereby the owner or occupier of other land is unreasonably or unfairly and materially disturbed or annoyed or interfered with. Bloemfontein Town Council v Richter 1938 AD 195 Van der Merwe v Carnarvon Municipality 1948 (3) SA 613 (C) Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 (3) SA 896 (T) East London Western Districts Farmers’ Association v Minister of Education & Development Aid 1989 (2) SA 63 (A) As to the test for determining whether a disturbance constitutes an actionable nuisance, see: De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) Gien v Gien 1979 (2) SA 1113 (T) Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 (3) SA 159 (T) Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 (3) SA 896 (T) [Page 266] The test is an objective one. The standard applied is not that of a perverse, particular or overscrupulous person but that of the normal person of sound and liberal tastes and habits. Prinsloo v Shaw 1938 AD 570 Purely aesthetic considerations are irrelevant in determining whether an act amounts to a nuisance. Dorland v Smits [2002] 3 All SA 691 (C); 2002 (5) SA 374 (C) Some discomfort, inconvenience or annoyance emanating from the use of neighbouring property must be endured. De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) The infringement of the right to reasonable enjoyment must be persistent and continual. Rademeyer v Western Districts Council [1998] 2 All SA 547 (SE); 1998 (3) SA 1011 (SE) Plaintiff: The plaintiff will be the owner or occupier of land whose rights of enjoyment are infringed. No relief will be afforded a plaintiff whose occupation of the property affected by the nuisance is unlawful. Amod v Andrews Bakery (Pty) Ltd 1965 (2) SA 433 (T) A municipality may sue in respect of a nuisance affecting its inhabitants generally. Municipality of Stellenbosch v Levinsohn 1911 CPD 303 Defendant: The defendant will be the owner or occupier of the property from which the nuisance emanates, or the person causing the nuisance. An owner or occupier who knowingly allows an actionable nuisance to be committed by third parties on her or his land may be interdicted from allowing the property to be so used. Porter v Cape Town City Council 1961 (4) SA 278 (C) Flax v Murphy 1991 (4) SA 58 (W) “Allow”, in this context, implies knowledge of and consent to the act of the third party. Porter v Cape Town City Council 1961 (4) SA 278 (C) Moller v SA Railways & Harbours 1969 (3) SA 374 (N) A person who buys land on which there is an existing nuisance may be interdicted from allowing that nuisance to continue, if reasonable steps can be taken to prevent its continuation. Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) Negligence: Where the plaintiff claims abatement of the nuisance by a final interdict, it is necessary to allege and prove a clear right which is infringed or is in real danger of being infringed. Gien v Gien 1979 (2) SA 1113 (T)
Amod v Andrews Bakery (Pty) Ltd 1965 (2) SA 433 (T) Proof of negligence is not necessary. Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) Relief: Damages will not be awarded for inconvenience, discomfort or annoyance. Wynberg Municipality v Dreyer 1920 AD 439 at 452 Actual damages must be proved. Turkstra Ltd v Richards 1926 TPD 276 An interdict remains an appropriate remedy. Cf Chapmans Peak Hotel (Pty) Ltd v Jab and Annalene Restaurants CC t/a O’Hagans [2001] 4 All SA 415 (C) [Page 267] Defences: The following defences are available: (a) The act was done in the due and reasonable exercise of the defendant’s property rights. Malherbe v Ceres Municipality 1951 (4) SA 510 (A) It is not clear whether the onus rests on defendant. This defence may be met by pleading and proving a malicious motive (animus vicino nocendi). Kirsh v Pincus 1927 TPD 199 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 107–109 Gien v Gien 1979 (2) SA 1113 (T) at 1121 (b) No reasonably practicable steps could have been taken to prevent the disturbance. The onus rests on the defendant. Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 (3) SA 896 (T) (c)
The act was authorised by statute and could not be done without causing the disturbance or prejudice complained of. Union Government v Sykes 1913 AD 156 Reddy v Durban Corp 1939 AD 293 Johannesburg City Council v Vucinovich 1940 AD 365 The defendant bears the onus to plead and establish that the interference was impossible to avoid and that such interference was the inevitable result of the exercise of the defendant’s statutory powers. Moller v SA Railways & Harbours 1969 (3) SA 374 (N) See : STATUTORY AUTHORITY
(d)
(e)
The defendant has, through prescription, obtained the right to perform the act. Salisbury Municipality v Jooala 1911 AD 178 See : PRESCRIPTION The plaintiff delayed so long in instituting the proceedings that the enforcement of an interdict would cause great inequity and would amount to unconscionable conduct. Zuurbekom Ltd v Union Corp Ltd 1947 (1) SA 514 (A)
PRECEDENTS Claim – for interdict based on a nuisance Plaintiff is the owner and occupier of [give description]. Defendant is the owner (or occupier) of [give description].
1. 2.
3. Certain oak trees grow on defendant’s property, the branches of which overhang the roof of plaintiff’s dwelling house. 4. These overhanging branches are a nuisance in that the leaves therefrom drop into and block the guttering of plaintiff’s house with the result that rainwater cannot flow through the gutters and the walls of plaintiff’s house have consequently become damp and damaged by the stagnant rainwater. 5. Despite demand by plaintiff to defendant to abate the said nuisance, he refuses to do so.
WHEREFORE plaintiff claims: (a)
An order directing defendant to abate the said nuisance by chopping off the branches or in some other effective manner to prevent the leaves from dropping onto plaintiff’s guttering and shingles.
[Page 268] (b)
An interdict against defendant to prevent the nuisance from recurring in future. [Based on Malherbe v Ceres Municipality 1951 (4) SA 510 (A). In casu, a prior demand is essential because plaintiff is in law entitled to remove the offending trees.]
Claim – interdicting noise 1. Plaintiff is the lessee and occupier of [give description]. 2. Defendant is occupying the adjoining property [give description] and is conducting excavating activities thereon. In the course of its activities, defendant uses certain compressors and jackhammers that cause a noise.
3.
4. Defendant is thereby unreasonably and materially disturbing plaintiff in his use and occupation of the leased property in that plaintiff is unable to conduct his profession thereon during ordinary business hours. WHEREFORE plaintiff claims: An interdict preventing defendant from using jackhammers and compressors during office hours in excavating. [Based on Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 (3) SA 159 (T).] Plea – to a claim based on nuisance 1. Defendant admits having erected on his premises a factory for the purpose of manufacturing certain [detail] and that, in the process of such manufacture, there are times when offensive odours are caused and that these do on occasions escape from the precincts of defendant’s factory in spite of all reasonable steps’ having been taken to have them contained within the factory. Defendant denies, however, that these odours cause a nuisance to plaintiff.
2.
3. Alternatively, and should this honourable court find that the odours do constitute a nuisance to plaintiff, defendant pleads that he cannot avoid the odours in the course of his manufacturing business and that they were and are so caused by defendant in the reasonable exercise by him of his proprietary rights in the land on which his factory is established, having particular regard to: (a) the fact that the property is zoned for manufacturing noxious substances; and (b) the fact that the manufacturing takes place in compliance with the provisions of the Atmospheric Pollution Prevention Act 45 of 1965 (as amended from time to time). Pleadings/Amlers Precedents of Pleadings/O/Options Options A party wishing to rely on an exercised option must allege and prove the following: (a) A valid option – that is, an offer contained in an agreement which, upon acceptance, would give rise to a valid contract. Venter v Birchholtz 1972 (1) SA 276 (A) Van Jaarsveld v Ackermann 1975 (2) SA 753 (A) Aris Enterprises (Finance) (Pty) Ltd v Waterberg Koelkamers (Pty) Ltd 1977 (2) SA 425 (A) Kennedy v Botes 1979 (3) SA 836 (A) (b)
That the option was properly exercised. The exercise must comply with the ordinary rules relating to the acceptance of an offer. SA Yster & Staal Industriële Korp Bpk v Koschade 1983 (4) SA 837 (T) Ficksburg Transport (Edms) Bpk v Rautenbach 1986 (2) SA 88 (O)
[Page 269] It must also comply with the formalities prescribed in the option for its exercise. Inrybelange (Edms) Bpk v Pretorius 1966 (2) SA 416 (A) Kahn v Raatz 1976 (4) SA 543 (A) Ficksburg Transport (Edms) Bpk v Rautenbach 1988 (1) SA 318 (A) (c)
That the option was still open for acceptance. Cf Mittermeier v Skema Engineering (Pty) Ltd 1984 (1) SA 121 (A)
(d) That the option was granted, or ceded, to that party. Options are generally capable of being ceded, unless there is a term to the contrary in the option or if the grantee is a dilectus personae. Dettmann v Goldfain 1975 (3) SA 385 (A) Breach of the option: If the grantor of an option repudiates it, the following possibilities exist: (a)
Prior to the exercise of the option, the grantee may interdict a transaction or transfer in order to maintain the status quo in order to enable the grantee to claim delivery once the option has been exercised. Before exercise of the option, the grantee may not claim performance. Krauze v Van Wyk 1986 (1) SA 158 (A)
(b) The grantee may accept the repudiation of the option and claim damages and must then allege and prove: (i) the repudiation and its acceptance; (ii) that, as a matter of probability, the option would have been exercised – in other words, that there is a causal connection between the repudiation and the damages; and damages. Sommer v Wilding 1984 (3) SA 647 (A)
(iii)
(c) The grantee may, after the exercise of the option, claim delivery from a third party who, with knowledge of the option, took transfer of the subject-matter of the option. Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A) PRECEDENTS Plea – on exercised option 1. On [date] at [place], defendant gave to [name] a written option to purchase [item] for the sum of [amount]. A copy of the option is annexed hereto and marked “A”. 2. On [date], the said [name] in writing ceded the option to plaintiff. A copy of the cession is annexed hereto and marked “B”. 3. On [date] at [place] and whilst the option was in full force and effect, plaintiff duly exercised it by notifying defendant in writing thereof. A copy of the exercise of the option is annexed hereto and marked “C”. In spite of his tender of payment, defendant refuses to deliver the said [item] to plaintiff. WHEREFORE, tendering as aforesaid, plaintiff claims: An order directing defendant to deliver the said [item] to plaintiff. [Page 270] Pleadings/Amlers Precedents of Pleadings/O/Ownership Ownership Related subjects: ACTIO AD EXHIBENDUM ESTOPPEL SALE VINDICATION
4.
Onus: A party who relies on ownership in an object must allege and prove such ownership. Transfer of ownership of corporeal movable property requires delivery – ie, transfer of possession of the property by the owner to the transferee – coupled with a real agreement between the parties. The constituent elements of this agreement are the intention of the owner to transfer ownership and the intention of the transferee to acquire it. Transfer of possession can be either actual or constructive and an agent can act for either the owner or the transferee or both. Info Plus v Scheelke [1998] 2 All SA 509 (SCA); 1998 (3) SA 184 (SCA) ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC [2003] 1 All SA 401 (SCA); 2003 (1) SA 401 (SCA) Delivery may be by way of: (a)
traditio brevi manu; Info Plus v Scheelke [1998] 2 All SA 509 (SCA); 1998 (3) SA 184 (SCA)
(b) traditio longa manu; Eskom v Rollomatic Engineering (Edms) Bpk 1992 (2) SA 725 (A) (c)
constitutum possessorium; Bank Windhoek Bpk v Rajie 1994 (1) SA 115 (A)
(d) symbolic delivery; Botha v Mazeka 1981 (3) SA 191 (A) (e)
attornment Caledon & Suid-Westelike Distrikte Eksekuteurs-Kamer Bpk v Wentzel 1972 (1) SA 270 (A) Air-kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980 (3) SA 917 (A)
Reliance may be placed on the factual presumption of ownership arising from possession. The onus lies on the party who seeks to rebut the presumption of ownership arising from the possession of a thing. Zandberg v Van Zyl 1910 AD at 302 Ruskin v Thiergen 1962 (3) SA 737 (A) Hefer v Van Greuning 1979 (4) SA 952 (A) at 959 Unless the matter is raised by the other party on the pleadings, a purchaser who has paid the price need not prove that a predecessor in title was a true owner or that ownership was acquired from a true owner. Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A) at 937 Ownership in immovable property can only be proved by producing the title deeds or the register of the registrar of deeds (or an extract or affidavit authorised by statute). Gemeenskapsontwikkelingsraad v Williams (1) 1977 (2) SA 692 (W) Cf Pick ’n Pay Stores Ltd v Teazers Comedy and Revue CC [2000] 2 All SA 604 (W); 2000 (3) SA 645) (W) [Page 271] Pleadings/Amlers Precedents of Pleadings/P/Parties Parties Related subjects:
CITATION LOCUS STANDI
Pleadings/Amlers Precedents of Pleadings/P/Partnerships Partnerships Related subjects: ACCOUNTS CITATION JOINT OWNERSHIP The contract: A party who relies on a partnership contract must allege and prove a contract with the following essentials: (a) each party must undertake to bring into the partnership money, labour or skill; (b) a business is to be carried on for the joint benefit of all the parties; and
(c) the common object of making a profit. Bester v Van Niekerk 1960 (2) SA 779 (A) Purdon v Muller 1961 (2) SA 211 (A) Pezzutto v Dreyer 1992 (3) SA 379 (A) The contract may be express or implied. An example of the latter is a universal partnership between spouses. Mühlmann v Mühlmann 1984 (3) SA 102 (A) Citation: The citation of partners is regulated by Uniform rule 14 and Magistrates’ Courts rule 54. See : CITATION Liability: The following rules apply: (a) The liability of partners is joint and several. Bester v Van Niekerk 1960 (2) SA 779 (A) (b)
During the existence of the partnership, creditors must sue the partnership and not the individual partners. Execution must first proceed against the partnership assets. The same judgment will entitle execution against individual partners if the partnership assets are insufficient. Muller v Pienaar 1968 (3) SA 195 (A) Standard Bank of SA Ltd v Pearson 1961 (3) SA 721 (E) Herbst v Solo Boumateriaal 1993 (1) SA 397 (T)
(c) As soon as the partnership is dissolved, action for payment of the full debt may be instituted against any one or more of the partners. Lee v Maraisdrif (Edms) Bpk 1976 (2) SA 536 (A) (d) A partnership, which was dissolved after the accrual of the cause of action but before the issue of summons, may be sued in its name as at the date of accrual, and the action continues against the persons alleged by the plaintiff or stated by the partnership to have been partners, as if sued individually. Kirsch Industries Ltd v Vosloo & Lindeque 1982 (3) SA 479 (W) (e)
In spite of its dissolution, a partnership is deemed to remain in existence, as far as creditors are concerned, until their claims have been discharged and, as far as partners are concerned, for purposes of liquidation and distribution of the assets. Van der Merwe v Sekretaris van Binnelandse Inkomste 1977 (1) SA 462 (A) at 472 Spie Batignolles SA v Van Niekerk 1980 (2) SA 441 (NC)
[Page 272] Actio pro socio : The rules of the action between partners are these: (a)
(b)
(c)
During the existence of the partnership, action may be instituted by a partner against a co-partner for specific performance in terms of the partnership agreement and fulfilment of obligations arising out of the partnership agreement and business. Where the partnership agreement provides for or the parties subsequently agree upon the dissolution of the partnership and the manner in which the partnership is to be liquidated and wound up, specific performance in those terms may be claimed. Where neither the partnership agreement nor the subsequent agreement between the partners provides for the dissolution of the partnership and the manner in which the partnership is to be liquidated and wound up, this action may, in general and subject to any stipulation for the duration of the partnership or any other relevant stipulation, be brought by a partner in order to have a partnership liquidated and wound up. The court may appoint a liquidator to realise the partnership assets for the purpose of liquidating the partnership debts and in order to distribute the balance of the assets or their proceeds among the partners.
(d) Where a partnership has been dissolved, a partner may claim, against a co-partner, distribution of any undistributed partnership assets. Robson v Theron 1978 (1) SA 841 (A) Van Onselen NO v e Kgengwenyane 1997 (2) SA 423 (BSC) It follows that partners are not, as regards partnership dealings, considered debtor and creditor inter se until the partnership is wound up or until there is a binding settlement of accounts. One partner has no right of action against another for the balance owing to her or him until after final settlement of accounts. A partner must, therefore, allege a winding up or a settlement of accounts before he or she can sue for moneys due. Pataka v Keefe 1947 (2) SA 962 (A) Ferreira v Fouche 1949 (1) SA 67 (T)
Narayanasamy v Venkatrathnam 1979 (3) SA 1360 (D) Loots v Nieuwenhuizen 1997 (1) SA 361 (T) If a liquidator has been appointed, a partner’s right to claim delivery of partnership property from another partner comes to an end. Van Tonder v Davids 1975 (3) SA 616 (C) Anonymous partner: An anonymous partner is not liable for partnership debts. SACCA Ltd v Olivier 1954 (3) SA 136 (T) In order to qualify as such, the name of this partner may not be disclosed to the world at large and he or she may not participate in the partnership’s business. Mmabatho Food Corp (Pty) Ltd v Fourie 1985 (1) SA 318 (T) PRECEDENTS Claim – for account 1. From [date] until [date], the parties carried on a business as general dealers in partnership at [place]. 2. The aforesaid partnership was dissolved by oral agreement on the latter date. [Page 273] 3. During the currency of the partnership, defendant acted as the sole manager of the partnership business, conducted all the partnership transactions and was in sole control thereof. 4. Plaintiff had no share in the management and control of the business, its transactions or assets. 5. Despite his obligations to do so, defendant has failed to render to plaintiff an account of the partnership’s transactions for the period aforesaid. WHEREFORE plaintiff claims: (a) An order directing defendant to render to plaintiff an account of all partnership transactions for the period [date] to [date] duly supported by proper vouchers. (b) (c)
A debate of such account. Payment to plaintiff of any amounts found to be owing to plaintiff.
Claim – for dissolution of partnership 1. On [date] at [place], the parties entered into a written agreement of partnership. A copy of the aforesaid agreement is attached hereto and marked “A”. 2. The partnership was formed for the express purpose of erecting a certain block of flats at [address] and thereafter selling it. 3. The block of flats was erected and was sold on [date] for a selling price of [amount]. 4. In the premises, the purpose for which the partnership was created, ceased to exist. 5. Plaintiff called upon defendant to agree to dissolution of the partnership and for the appointment of a liquidator but defendant refused to do so. WHEREFORE plaintiff claims: (a) An order dissolving the partnership. (b) An order appointing a liquidator with authority to realise the whole of the partnership assets, to liquidate the liabilities of the partnership, to prepare a final account and to pay to plaintiff half the nett profits made by the partnership.
Claim – for appointment of a liquidator 1. On [date] at [place], the parties entered into a written partnership agreement. A copy is attached hereto and marked “A”. 2. In terms of the agreement the parties have since [date] and to date hereof been trading as partners under the style of [name] at [address]. Defendant breached the partnership agreement in that he [specify].
3.
4. The aforesaid breach of contract was a material one and plaintiff was entitled by virtue thereof to cancel the agreement. 5. By letter dated [date], plaintiff cancelled the agreement of partnership. 6. Defendant refused to agree to the appointment of a liquidator or in any way to assist in the liquidation of the partnership. WHEREFORE plaintiff claims: (a) An order confirming the dissolution of the partnership. (b) An order appointing a liquidator with authority to realise the whole of the partnership assets, to liquidate the liabilities of the partnership, to prepare a final account and to pay to the parties whatever is owing to them by virtue of the partnership agreement. Claim – for dissolution in terms of the agreement 1. On [date] at [place], the parties entered into an oral agreement of partnership in terms of which they traded under the style of [name] at [address] from [date] to the date hereof. 2. Relations between plaintiff and defendant have become strained to such an extent that it is no longer possible to continue the partnership profitably by virtue of: [detail]. [Page 274] 3. It was an express term of the agreement between the parties that, upon dissolution of the partnership, the affairs of the partnership would be liquidated in the following way: [detail]. 4. Despite demand, defendant refused to agree to dissolve the partnership or to give effect to the aforesaid provisions relating to liquidation. 5. Plaintiff hereby tenders to carry out his obligations in terms of the agreement relating to the dissolution and liquidation of the partnership. WHEREFORE plaintiff claims: (a) An order dissolving the partnership. (b) An order directing defendant to [state relief sought]. Claim – in respect of a universal partnership between spouses 1. The parties were married to each other out of community of property by antenuptial contract at [place] on [date]. 2. During the subsistence of the marriage, the parties commenced for their joint benefit a retail grocer business at [address] and entered into a tacit partnership agreement. 3. Defendant paid into the said business the initial sum of [amount] and thereafter both he and plaintiff contributed in equal shares their labour, services and skill to the business. Neither received a salary from the
said business but, from time to time, each one, by mutual agreement, drew money from the profits of the business for his or her benefit and for the purposes of the common household. 4. No express agreement as to the division of the profits of the business was arrived at between the parties, but plaintiff avers that, in the premises, it was tacitly agreed that the profits would be divided in equal shares. The marriage between the parties was dissolved by this honourable court on [date]. At all material times, defendant was and still is in possession of all the books of account of the partnership.
5. 6.
7. Defendant denies the existence of the partnership and has refused to render to plaintiff an account of the said business. WHEREFORE plaintiff claims: (a)
An order declaring that a partnership existed between plaintiff and defendant in equal shares in respect of the said grocery business.
(b) An order dissolving the partnership as from [date]. (c) An order appointing a liquidator [and so on]. Pleadings/Amlers Precedents of Pleadings/P/Passing-off Passing-off Related subjects: TRADE MARKS UNLAWFUL COMPETITION Cause of action: A passing-off action protects the goodwill or reputation of a trader’s business, merchandise or services against a false representation by a competitor to the effect that the business, merchandise or service of the competitor is that of the plaintiff or that it is associated with the plaintiff. It also provides protection against deception as to trade source or trade connection. Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A); 1998 (3) SA 947 (SCA) [Page 275] Passing-off is a species of the broader delict of unlawful competition. Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T) at 1138 Jurisdiction: The ordinary principles relating to delictual claims apply. Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A); 1998 (3) SA 947 (SCA) Parties: The goodwill must be that of the plaintiff. A distributor of goods manufactured by another is not entitled to protection where the get-up is distinctive of the manufacturer’s business and reputation. Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd 1975 (4) SA 626 (W) Salusa (Pty) Ltd v Eagle International Traders 1979 (4) SA 697 (C) A plaintiff who has ceased to carry on business must show that her or his business or goods retain the reputation or a residual renown. If this onus is discharged, a defendant relying on the abandonment of this right must prove such abandonment. Polakow Bros (Pty) Ltd v Gershlowitz 1976 (1) SA 863 (SE) An instigator or accomplice is likewise liable. Omega Louis Brandt et Frere SA v African Textile Distributors 1982 (1) SA 951 (T) Trade mark infringement and passing-off: The distinction between these two actions is dealt with under TRADE MARKS. Misrepresentation: The plaintiff must allege and prove a misrepresentation by the defendant. The test applied to determine whether a misrepresentation amounts to passing-off is whether there is a reasonable likelihood that members of the public may be confused into believing that the business of one person is, or is connected with, that of another. Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) Such representation must be false and unauthorised. The typical case of passing-off is where the defendant uses, adopts or imitates the trade name or get-up of the plaintiff’s business, goods or services.
Policansky Bros Ltd v L & H Policansky 1935 AD 89 Truck & Car Co Ltd v Kar-N-Truk Auctions 1954 (4) SA 552 (A) Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) Die Bergkelder v Delheim Wines (Pty) Ltd 1980 (3) SA 1171 (C) Reputation or goodwill: It is necessary to allege and prove that the trade name, trade mark, get-up or service mark was known in the market and that the plaintiff’s goods, business or service acquired a public reputation or became distinctive from other, similar goods, businesses or services. Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A); 1998 (3) SA 947 (SCA) at para [16] SC Johnson & Son Inc v Klensan (Pty) Ltd t/a Markrite 1982 (4) SA 579 (T) Pepsico Inc v United Tobacco Co Ltd 1988 (2) SA 334 (W) Daimler Chrysler Aktiengesellschaft v Afinta Motor Corporation (Pty) Ltd [2001] 2 All SA 219 (T) Consequently, where a trader uses a word in its ordinary meaning in connection with her or his goods or business, or uses a trade or service mark or trade name which is a descriptive term, it must be proved that, through use, such word acquired a secondary meaning and designates the plaintiff’s goods, services or business. Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) at 938 [Page 276] Where, however, a trader uses a fancy or invented name, it is difficult to avoid an inference of passing-off if a rival uses that name. Truck & Car Co Ltd v Hirschmann 1954 (2) SA 117 (E) The same principles apply where the plaintiff seeks to protect the get-up of her or his goods. Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) Die Bergkelder v Delheim Wines (Pty) Ltd 1980 (3) SA 1171 (C) Calculated to deceive or confuse: It is necessary to allege and prove that the defendant’s get-up or trade name was calculated or likely to deceive or confuse the ordinary customer and, thus, to cause confusion and damage to the goodwill of the plaintiff’s business by, for example, diverting customers from the plaintiff’s business or products to that of the defendant. Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A) Confusion itself is not enough: it is essential that a causal connection between the representation and the confusion be established. Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) It is not necessary for a trader seeking relief to prove that anyone has actually been deceived or confused, but a plaintiff who fails to prove actual confusion or deception runs a risk of failing to establish the likelihood of confusion. Rizla International BV v L Suzman Distributors (Pty) Ltd [1996] 2 All SA 414 (C); 1996 (2) SA 527 (C) Common field of activity: Absence of proof of a common field of activity is not necessarily fatal to a plaintiff’s claim; it is merely a factor which the court takes into account when considering whether the defendant’s conduct is likely to lead to confusion between the parties’ goods or business. Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) Philip Morris Inc v Marlboro Shirt Co SA Ltd 1991 (2) SA 720 (A) Intention to deceive: The plaintiff need not show that the defendant intended to deceive. Evidence of such intention may, however, indicate that the defendant considered that the plaintiff’s trade mark, get-up or trade name had acquired the requisite reputation. A court may then more readily find that the likelihood of deception or confusion has been established. Moreover, there is a practical justification for holding that a deliberate copier did not fail to achieve her or his object in passing-off. Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (SCA); 2001 (3) SA 884 (SCA) Interdict: The plaintiff may claim an interdict prohibiting the defendant from using, adopting or imitating the trade name, trade or service mark or get-up. Kenitex Africa (Pty) Ltd v Coverite (Pty) Ltd 1967 (3) SA 307 (W) Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1992 (2) SA 489 (A) In a claim for an interdict, it is not necessary to allege and prove either intention to deceive or negligence on the part of the defendant. Kenitex Africa (Pty) Ltd v Coverite (Pty) Ltd 1967 (3) SA 307 (W) See : INJURIOUS FALSEHOODS [Page 277] It is also not necessary to prove actual prejudice. The probability of prejudice’s resulting from the defendant’s persisting in the conduct complained of is sufficient. Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) It follows that it is no defence to a claim for an interdict to plead ignorance that the practice complained of was calculated to deceive.
Damages: The plaintiff may recover damages for any loss suffered by means of the actio legis Aquiliae. Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) Cf Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (A); 1997 (4) SA 399 (SCA) Such loss may result from either a diversion of custom from the business of the aggrieved party or injury to the business reputation. Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T) Account of profits: A claim for an account of profits is not competent. See : ACCOUNTS An interim order may be granted directing the keeping of an account of sales by the defendant in order to enable the plaintiff to assess, at a later stage, the damages suffered. John Waddington Ltd v Arthur E Harris (Pty) Ltd 1968 (1) SA 38 (T) Delivery-up: The plaintiff may be entitled to prevent further passing-off by claiming, as ancillary relief, an order for the handing over of the goods in question, so that the offending mark or name may be removed or destroyed, or the handing over, for destruction, of containers or advertising material bearing the offending mark or name. Jafta v Minister of Law & Order 1991 (2) SA 286 (A) Alternative causes of action: A passing-off action is often brought as an alternative to a trade-mark-infringement action. An act of passing-off may also overlap with other types of unlawful competition, such as contravention of a statutory provision, as in section 7 of the Merchandise Marks Act 17 of 1941 or the Counterfeit Goods Act 37 of 1997. Where that is the case, plaintiff may base her or his case in the alternative on a contravention of the relevant statute. Berman Bros (Pty) Ltd v Sodastream Ltd 1986 (3) SA 209 (A) Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A) A get-up may also constitute an original artistic work protected in terms of the Copyright Act 98 of 1978. If it does, the plaintiff may base the claim on passing-off, infringement of copyright or both and may claim the remedies provided for in the Copyright Act. See : COPYRIGHT For character merchandising, see Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T) Federation Internationale de Football v Bartlett 1994 (4) SA 722 (T) SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons [2003] 1 All SA 274 (SCA) [Page 278] Nevertheless, it is not legitimate to use some general notion of unlawful competition to create an ersatz passing-off with requirements (in the alternative) less exacting than those required by the common law. Some of the restraints that the common law places on the passing-off action are important in preventing the creation of impermissible monopolies. Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A) at 453 Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (A); 2001 (3) SA 884 (SCA) Doctrine of unclean hands: A plaintiff whose own get-up contains a material, false representation may not be entitled to protection from passing-off. Zyp Products Co Ltd v Ziman Bros Ltd 1926 TPD 224 This doctrine of unclean hands is applicable only if there was fraud, dishonesty or mala fides on the part of the plaintiff. Volkskas Bpk v Barclays Bank (DC & O) 1952 (3) SA 343 (A) Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd 1976 (4) SA 218 (T) A related principle is that passing-off cannot be used to protect a false reputation or a misapprehension. Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A); 1998 (3) SA 947 (SCA) Market-survey evidence: In order to prove reputation, a party may rely on market-survey evidence, provided the survey is properly structured. McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd [1996] 4 All SA 1 (A); 1997 (1) SA 1 (A) PRECEDENTS Interdict – passing-off 1. Since or about [date], plaintiff has made continuous and extensive use of a distinctive get-up in relation to toilet soap in South Africa. 2. The aforesaid distinctive get-up consists of a white wrapper upon which is printed a device comprising the mark ACME printed in a distinctive style of lettering. Annexed hereto as Annexure “A” is an example of plaintiff’s aforesaid distinctive get-up. 3.
As a consequence of plaintiff’s aforesaid continuous and extensive use of the distinctive get-up, plaintiff has built up a substantial reputation therein, such that members of the public associate toilet soap, in relation to which the distinctive get-up is used, as toilet soap emanating from plaintiff or as being connected in the course of trade with plaintiff. [or] The said get-up has become and is identified in the minds of the public with soap manufactured and supplied by plaintiff, and purchasers and traders, when purchasing soap in the said getup, do so in the belief that it emanates from and is supplied by plaintiff. 4. Since about [date], defendant has been selling toilet soap in relation to which a get-up is being used comprising a pink wrapper upon which the word ACNE is used in a distinctive style of lettering (hereinafter referred to as “the offending get-up”). Annexed hereto as Annexure “B” is an example of the offending get-up. 5. The offending get-up is confusingly or deceptively similar to plaintiff’s aforesaid distinctive get-up. 6. The aforesaid conduct of defendant is not authorised by plaintiff. [Page 279] 7. The aforesaid conduct of defendant is calculated to confuse or deceive people into believing that defendant’s products are those of plaintiff or are connected in the course of trade with plaintiff. 8. In the premises, defendant is wrongfully passing-off its products as and for those of plaintiff. 9. Plaintiff apprehends on reasonable grounds that defendant will not desist with its aforesaid unlawful conduct unless restrained by an order of court. WHEREFORE plaintiff claims: An interdict restraining defendant from passing-off its soap as that of plaintiff or as being connected in the course of trade with plaintiff, by using, in regard thereto, the offending get-up or any get-up which is confusingly or deceptively similar to plaintiff’s distinctive get-up. Pleadings/Amlers Precedents of Pleadings/P/Patents Patents Statute: Patents are governed by the Patents Act 57 of 1978. Only patent infringement proceedings are by way of action and, for that reason, this title is limited to a discussion thereof. Jurisdiction: The court of the commissioner of patents is the only tribunal that has jurisdiction in the first instance to hear and decide proceedings relating to any matter under the Act. Patents Act 57 of 1978 s 18 Precismeca Ltd v Melco Mining Supplies (Pty) Ltd 2003 (1) SA 664 (SCA) The commissioner has, in connection with any proceedings before her or him, the same powers and jurisdiction as a single judge has in a civil action. Patents Act 57 of 1978 s 17(1) Save as otherwise provided by the Act, the procedure followed in proceedings before the commissioner must, as far as practicable, be in accordance with the law governing procedure in civil cases in the Transvaal High Court, and, in default thereof and where no relevant provision is made in the Act, the commissioner must act in the manner and on the principles as are best fitted to ensure substantial justice and to give effect to and carry out the objects and provisions of the Act. Patents Act 57 of 1978 s 19(1) Any decision or order of the commissioner has the same effect as, and, for all purposes, is deemed to be a decision or order of, the Transvaal High Court. Patents Act 57 of 1978 s 19(2) Patent regulation 76 In view of the nature of the court of the commissioner, its proceedings cannot be reviewed. Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) Territorial jurisdiction: Patent infringement is a statutory delict and the court of the commissioner has jurisdiction in respect of South African patents and acts of infringement committed in South Africa. Cf Schlumberger Logelco Inc v Coflexip SA 2000 (3) SA 861 (SCA) Plaintiff: An infringement action can be instituted by:
(a) the patentee; or Patents Act 57 of 1978 s 65(1) (b)
a licensee of right (but only after having called upon the patentee to do so, in which event the patentee must be joined as a defendant). Patents Act 57 of 1978 s 53(3) Clifford Harris (Pty) Ltd v SGB Building Equipment (Pty) Ltd 1980 (2) SA 141 (T)
[Page 280] Intervention as plaintiff: Notice must be given to every licensee under the patent in question whose name is recorded in the register and any such licensee is entitled to join as co-plaintiff and to recover any damages suffered as a result of the infringement. Patents Act 57 of 1978 s 65(5) Likewise, a joint patentee who institutes infringement proceedings must give notice thereof to every other joint patentee, who may intervene as co-plaintiffs and recover damages. Patents Act 57 of 1978 s 49(4) Defendant: Any person who, during the duration of the patent, makes, uses, exercises, disposes or offers to dispose of or imports the invention infringes the patent. Patents Act 57 of 1978 s 45(1) However, the sale of a patented article by or on behalf of a patentee or a licensee gives the purchaser the right to use, offer to dispose and dispose of that article. Patents Act 57 of 1978 s 45(2) The patent: The plaintiff must allege and prove that the patent has been granted (not merely applied for) and that it was at all relevant times in existence. Continental Linen Co (Pty) Ltd v Kenpet Agency (Pty) Ltd 1986 (4) SA 703 (T) It is practice, though unnecessary, to allege that the patent is valid. There is a presumption that a registered patent is valid. Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 629 It is practice, but not essential, to attach a copy of the complete specification to the particulars of claim. Phillips Estate (Pvt) Ltd v Braunstein 1964 (3) SA 818 (SR) The patent can be proved by means of a certificate purporting to be signed by the registrar of patents. Patents Act 57 of 1978 s 73(1) Infringement: The plaintiff must allege and prove that the defendant has infringed one or more of the claims of the patent. The practice in this regard is to plead one or more particular instances of infringement which will be the subject of the evidence. In an action for infringement of a patent, the court’s first step is one of interpretation. It has to ascertain the nature and scope of the invention claimed, by construing the claims in question so as to determine the invention’s essential constituent elements or integers. Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) Sappi Fine Papers (Pty) Ltd v ICI Canada Inc 1992 (3) SA 306 (A) A determination of the question of whether there is infringement turns on a comparison between the article or process involved in the alleged infringement and the words of the claims of the patent. Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A) Nampak Products Ltd v Man-Dirk (Pty) Ltd [1999] 2 All SA 543 (SCA); 1999 (3) SA 708 (SCA) If the “pith and marrow” of the invention claimed are taken, it amounts to infringement. Frank & Hirsch (Pty) Ltd v Rodi & Wienenberger AG 1960 (3) SA 747 (A) Aktiebolaget Hässle v Triomed (Pty) Ltd [2002] 4 All SA 138 (SCA); 2003 (1) SA 155 (SCA) [Page 281] The onus rests on the plaintiff to prove that all the essential integers of a claim have been taken. Selero (Pty) Ltd v Chauvier 1982 (2) SA 208 (T) Where the invention for which a patent is granted is a process of obtaining a new product, the same product produced by someone else is deemed to have been obtained by that process, unless the contrary is proved. Patents Act 57 of 1978 s 67(2) “Literal” infringement and infringement by taking the “pith and marrow” are not different causes of action and one does not plead one or the other. Relief: In an infringement action, relief may be obtained by way of: (a) (b)
an interdict;
delivery-up of any infringing product or any article or product of which the infringing product forms an inseparable part; and (c) damages. Patents Act 57 of 1978 s 65(3) Stauffer Chemicals v Monsanto Co 1988 (1) SA 805 (T) If damages are claimed, the proceedings must be instituted by way of summons. The plaintiff may claim an inquiry into the damages suffered as a result of the infringement and payment of the amount of damages found to have been so suffered. It is, then, not necessary to specify in the pleadings the amount of damages allegedly suffered or the manner in which damages are computed. Patent regulation 98 The measure of damages is delictual, and such damages can include a loss of profit in respect of those articles that the plaintiff could and would have made and sold but for the infringement. The plaintiff must prove this probability, since there is no prima facie inference that infringing sales would have gone to the plaintiff. Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd 1978 (3) SA 465 (A) In lieu of damages, the plaintiff may choose to claim an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee or sub-licensee in respect of the patent concerned. Patents Act 57 of 1978 s 65(6) Invalidity: A defendant may rely on the invalidity of a patent in two ways: (a) (b)
in the plea, as a defence; and (optionally) in a counterclaim for the revocation of the patent. Patents Act 57 of 1978 s 65(4)
There is little, if any, merit in not counterclaiming for revocation. The onus rests on the defendant to allege and prove the invalidity of the patent and each particular statutory ground of invalidity relied on must be specially and separately pleaded, and separately considered by the court. Par Excellence Colour Printing (Pty) Ltd v Ronnie Cox Graphic Supplies (Pty) Ltd 1983 (1) SA 295 (A) at 308 Although it is trite that each objection must be considered in isolation, evidence on one aspect may be relevant to another. Filta-Matix (Pty) Limited v Freudenberg [1998] 1 All SA 239 (A); 1998 (1) SA 606 (SCA) [Page 282] The attack of invalidity must, as far as possible, be directed towards the claims relied on by the plaintiff, because some relief may be granted in respect of a partially valid patent. Patents Act 57 of 1978 s 68 Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd 1983 (1) SA 709 (A) But see McKelvey v Deton Engineering (Pty) Ltd [1997] 3 All SA 569 (A); 1998 (1) SA 374 (SCA) PRECEDENTS Claim – infringement 1. First plaintiff is, and has at all material times been, the registered proprietor of patent [number 72/2519] entitled ‘Herbicide Compositions’. 2. The patent has, at all material times, been valid and subsisting. A copy of the complete specification is annexed hereto. 3. Second plaintiff is, and has at all material times been, a registered licensee under the said patent. 4. From a date unknown to plaintiffs, defendant has infringed and is infringing claims 1 to 5 of the patent. 5. In order to prove infringement, plaintiffs will rely on: (a) the importation by defendant of 100 litres of a herbicidal composition known as Genep Plus on [date]; (b) the sale by defendant of Genep Plus to [name] on [date] at [place].
6. Genep Plus is a herbicidal composition falling within the scope of claims 1 to 5 of the patent. 7. Plaintiffs apprehend on reasonable grounds that defendant will not desist from its aforesaid infringement unless restrained by an order of court. 8. The aforesaid conduct of defendant is causing plaintiffs damages, which damages plaintiffs are not presently able to quantify. WHEREFORE plaintiffs claim: (a) (b) (c)
An interdict restraining defendant from infringing the patent by importing and/or disposing of Genep Plus. Delivery-up of all the infringing Genep Plus in the possession of defendant or under its control. An inquiry into damages suffered by plaintiffs as a consequence of defendant’s infringement. [Based on the facts of Stauffer Chemical Co v Safsan Marketing 1987 (2) SA 331 (A).]
Plea – infringement 1. Defendant admits the correctness of the specification annexed but denies that the patent is valid and subsisting for the reasons set out in the counterclaim. 2. Defendant admits its importation and sale of Genep Plus as alleged but denies that Genep Plus falls within the scope of any of the claims of the patent. Defendant accordingly denies that it has infringed or is infringing the said patent. Counterclaim – invalidity Plaintiff in reconvention is defendant in convention. Defendant in reconvention is first plaintiff in convention. The parties will be referred to as in convention.
1. 2. 3.
[Page 283] 4. First plaintiff is the registered proprietor of patent [number 72/2519] entitled ‘Herbicide Compositions’. 5. The patent is invalid for one or more of the reasons set out below in the statement of particulars of invalidity. WHEREFORE defendant claims: Revocation of patent [number 72/2519]. Statement – particulars of invalidity 1. The invention claimed in claims 1 to 5 was not patentable because it was not new immediately before the priority date of the patent, since it formed part of the state of the art as made available to the public: (a) in a public lecture given by [name] at [place] on [date]; (b) in a publication entitled [name] published on [date] at [place]. 2. The invention claimed in claims 1 to 5 was not patentable because it did not involve an inventive step, since it was obvious to a person skilled in the art having regard to the state of the art immediately before the priority date of the patent. 3. The invention claimed in claim 1 covers compound X, and compound X has no herbicidal properties. 4.
The invention as exemplified in the complete specification does not lead to results and advantages set out in the complete specification because [give details]. Pleadings/Amlers Precedents of Pleadings/P/Payment Payment Related subject: BANKERS CHEQUES LOANS TENDER: IN FULL AND FINAL SETTLEMENT General: Payment is a bilateral juristic act. Vereins- und Westbank AG v Veren Investments 2002 (4) SA 421 (SCA) Onus: A plaintiff claiming payment must allege the defendant’s failure to make payment. A defendant wishing to rely on a payment, in defence, must allege and prove the fact of payment. Pillay v Krishna 1946 AD 946 at 958 Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liq) [1998] 1 All SA 413 (A); 1998 (1) SA 811 (SCA) Cheque: Payment by cheque is usually considered conditional payment, in that it is conditional upon the cheque’s being honoured, unless the risk in the method of payment is for the creditor’s account. Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A) Mannesmann Demag (Pty) Ltd v Romatex Ltd 1988 (4) SA 383 (D) Appropriation of payment: Appropriation of payments operates inter partes when the debtor intends to discharge the liability to the creditor, when more than one debt is owed by the debtor to the creditor, and when the particular payment is insufficient to discharge the total indebtedness to the creditor. Pfeiffer v First National Bank of SA Ltd [1998] 3 All SA 397 (A); 1998 (3) SA 1018 (SCA) In general, where the debtor does not appropriate the payment to any particular debt, the creditor is entitled to do so at the moment payment is made. Douglas Green Bellingham v Green t/a Greens Bottle Recyclers [1997] 4 All SA 423 (A); 1998 (1) SA 367 (SCA) [Page 284] If capital and interest are owing in respect of the same indebtedness, a payment must be credited first to the interest owing by the debtor and, there-after, if not exhausted, to the capital owing. Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liq) [1998] 1 All SA 413 (A); 1998 (1) SA 811 (SCA) An enforceable debt is extinguished before an unenforceable one and, as between enforceable debts, the more onerous debt is extinguished first. A debt secured by a deed of suretyship is classified as an onerous debt, but a surety who has bound her- or himself up to a limited amount is not discharged from liability merely upon payment by the principal debtor of an equivalent portion of the principal debt. ABSA Bank Ltd t/a Volkskas Bank v Page [2002] 1 All SA 99 (A); 2002 (1) SA 617 (SCA) Older debts are settled before more recent ones. Where none of the specific rules applies, the various debts are settled proportionally. Payment to third party: The parties may agree that payment made to a third party constitutes payment of the debt. This usually means that the agreement authorises the debtor to pay the creditor’s creditor, who is referred to as an adiectus solutionis gratia. Powell v ABSA Bank Ltd t/a Volkskas Bank [1997] 4 All SA 231 (SE); 1998 (2) SA 807 (SE) PRECEDENTS Plea – of payment Defendant admits that he owed plaintiff the sum of [Rx].
1.
2. Defendant pleads, however, that, on [date] at [place], defendant paid [Rx] to plaintiff by personally handing to him a cheque drawn on [C] bank for [Rx], which cheque was duly honoured by [C] on [date]. Pleadings/Amlers Precedents of Pleadings/P/Pleas Pleas Related subjects:
SPECIAL PLEAS REPLICATION Rules of court: Pleas in the high court and the magistrates’ court are subject to similar rules, save that, if the rules are not complied with in the high court, the plea is deemed to be an irregular step. Uniform rule 22(5) and 30 Magistrates’ Courts rule 19 The basic obligation of a defendant is to: (a) (b) (c)
admit, deny, or confess and avoid,
all the material facts alleged in the plaintiff’s claim or to state which of the facts are not admitted, and to what extent, and to state clearly and concisely all material facts on which the defendant relies. [Page 285] It does not suffice to plead the legal result without a factual basis. Uniform rule 22(2) Radebe v Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793 The duty of the pleader is to deal with all the allegations made by the plaintiff. Sterling Consumer Products (Pty) Ltd v Cohen [2000] 4 All SA 221 (W) Admission: It is not necessary for any party in any civil proceedings to prove, and it is not competent for any such party to disprove, any fact admitted on the record of such proceedings. Civil Proceedings Evidence Act 25 of 1965 s 15 Water Renovation (Pty) Ltd v Gold Fields of SA Ltd 1994 (2) SA 588 (A) at 605H An admission in a plea can also not be withdrawn or otherwise amended by an ordinary notice of intention to amend (or notice of amendment): a substantive application to court is required. It must be shown on oath that the admission was made in error and that the plaintiff will not suffer material prejudice if the amendment is granted. Bellairs v Hodnett 1978 (1) SA 1109 (A) at 1150 Van Zyl and Maritz NNO v SA Special Risks Insurance Association 1995 (2) SA 331 (SE) at 339 The defendant may admit part of the plaintiff’s claim and dispute the balance without making a tender for the admitted part. However, the plaintiff may be able to obtain judgment for the admitted part. Rumanal (Pty) Ltd v Hubner 1976 (1) SA 643 (E) Denial: A denial of an allegation made by the plaintiff must be unambiguous. FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A) at 542 It need not be particularised, unless the onus rests upon the defendant, in which event the denial must be explained. A denial does not allow a defendant to rely on another defence that is not specifically pleaded. If any explanation or qualification of a denial is necessary, it must be pleaded. Uniform rule 22(3) Madyosi v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A) If a fact is not unambiguously denied, it is deemed to be admitted. ABSA Bank Ltd v IW Blumberg and Wilkinson 1997 (3) SA 669 (SCA) at 673–674 An allegation of fact by the plaintiff in the magistrates’ court, which allegation is inconsistent with the plea, is deemed to have been denied. Magistrates’ Courts rule 19(10) It is a rule of practice in the high court, and a specific rule in the magistrates’ courts (rule 19(6)), that a bare denial of liability or a defence of general issues is not permissible. Hillman Bros Ltd v Kelly & Hingle 1926 WLD 153 Lubbe v Bosman 1948 (3) SA 909 (A) Williams v Williams 1971 (2) SA 620 (O) It is said that a plea would infringe this rule if the defendant pleads, as a conclusion of law, a denial of liability or indebtedness to the plaintiff, without reference to the factual basis from which the conclusion is drawn. Britz v Weideman 1946 OPD at 144 A defendant may explain a denial by alleging that he or she has no knowledge of the facts and, consequently, denies that fact. Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd 1985 (3) SA 410 (C) [Page 286]
A defendant may not simply state that he or she does not admit a fact. This is not regarded as a denial. Wilson v SAR&H 1981 (3) SA 1016 (C) Material facts: The high court rule requires that the material facts on which the defendant relies must be clearly and concisely stated. In addition, in the magistrates’ court, the nature of the defence must be stated. It is doubtful whether this last requirement adds much. It is not necessary to give a legal tag to the defence, but the facts as set out must place the defence clearly in one or more specific legal niches. The facts underlying different defences must be pleaded separately – ie, rolled-up defences are not permissible. Davies v Lombard 1966 (1) SA 585 (W) Confession and avoidance: See : SPECIAL PLEAS Prayers: A plea must end with a prayer. The normal prayer is for the dismissal with costs of the plaintiff ’s claim. If the plea is dilatory, the relief sought is that the plaintiff ’s claim be stayed until the occurrence of the specific event. A plea may not be used to disguise a counterclaim, although this is indirectly allowed. Examples are where a defendant prays for an apportionment of damages, the reduction of a penalty, or rectification of a contract. In all these instances, the relief sought is not relief independent from that sought by the plaintiff but is in reduction or in qualification thereof. See : PRAYERS Pleadings/Amlers Precedents of Pleadings/P/Pledges Pledges A pledge is valid and perfected if it is based on: (a) a valid principal obligation; Kilburn v Estate Kilburn 1931 AD 501 Oertel NO v Brink 1972 (3) SA 669 (W) (b) an agreement to pledge; Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A) (c)
continued possession of the pledged article by the pledgee. Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A) Edwards v Van Zyl 1951 (2) SA 93 (C)
The pledgee is bound to take good care of the pledge and is responsible for all damage or accidents. If he or she destroys the pledged article, he or she must make it good; if he or she misuses it, he or she can be compelled to give security. When the debt is paid, the pledgee must restore the thing pledged in a state no worse than that in which he or she received it. Simon NO v Mitsui & Co Ltd [1996] 3 All SA 353 (W); 1997 (2) SA 475 (W) A pactum commissorium, in the context of a pledge, is an agreement that, if the pledgor defaults, the pledgee may keep the security as her or his own property. Such an agreement is void. Graf v Buechel [2003] 2 All SA 123 (SCA) [Page 287] PRECEDENTS Claim – for return of pledged article 1. On [date] at [place], and pursuant to an oral agreement between the parties, plaintiff pledged with defendant his [state article pledged] as security for the sum of [amount] being the amount then owing by plaintiff to defendant. 2. On [date], plaintiff repaid the said sum of [amount] to defendant. 3. Defendant has refused to redeliver the said [items] to plaintiff. 4. The value of [items] is [amount]. 5. By reason of defendant’s refusal, plaintiff has been deprived of the use of the said [items] from [date] to date hereof and has suffered a loss in the sum of [amount]. [Detail]. WHEREFORE plaintiff claims:
(a) Return of the said [items]; alternatively, payment of the sum of [amount]. (b) Payment of the sum of [amount]. Claim – for damages due to negligence 1. On [date] at [place], the parties entered into an oral agreement of pledge in terms of which plaintiff pledged with defendant his motor car [registration number], then undamaged, as security for a debt of [amount] then owing by him to defendant. On [date], plaintiff duly paid the sum of [amount] and defendant returned plaintiff’s motor car to plaintiff.
2.
3. On its return, the motor car was not in the same condition as when it was pledged, as it had been damaged whilst in the care of defendant. 4. The reasonable cost of repairing the damage to the vehicle is [amount]. 5. In the premises, defendant is liable to pay to plaintiff the sum of [amount]. Pleadings/Amlers Precedents of Pleadings/P/Police Police Related subjects: ARREST AND DETENTION ASSAULT STATE LIABILITY VICARIOUS LIABILITY Statute: The South African Police Service Act 68 of 1995 circumscribed, to an extent, the liability of the police and provided for formalities before proceedings can be instituted against the State or members of the Service. South African Police Service Act 68 of 1995 s 57 This provision differed materially from that of the repealed section 32 Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 of the Police Act 7 of 1958 Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 . For the history, see Minister of Safety and Security v Molutsi 1996 (4) SA 72 (A) Baldeo v Minister of Safety and Security, RSA [1998] 1 All SA 285 (D) All this has now been replaced by the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. See : STATE LIABILITY South African Police Service Act 68 of 1995 s 57(4) [Page 288] Pleadings/Amlers Precedents of Pleadings/P/Possessors: Damages Claims by Possessors: Damages Claims by Related subjects:
EVICTION OR EJECTMENT LEX AQUILIA VINDICATION
General: The use of the term “trespass” to describe the wrongful disturbance of another’s possession has fallen into disfavour. Hefer v Van Greuning 1979 (4) SA 952 (A) The right to claim damages because of damage to property is not limited to the owner of such property. A bona fide possessor is entitled to claim damages as if he or she were the owner of the property.
Swart v Van der Vyver 1970 (1) SA 633 (A) at 647 The right of the bona fide possessor so to claim has been extended to the hire-purchase purchaser and to the legal occupier of property, which occupier is about to become the owner of the property. Vaal Transport Corp (Pty) Ltd v Van Wyk Venter 1974 (2) SA 575 (T) Smit v Saipem 1974 (4) SA 918 (A) These claims, which are claims under the lex Aquilia, entitle the plaintiff to claim patrimonial loss. The ordinary principles of the lex Aquilia are applicable. An owner of property may claim against a possessor for patrimonial damages suffered as a result of unlawful possession, even if the owner never had possession of the property. Hefer v Van Greuning 1979 (4) SA 952 (A) It appears that a lessee who has not received occupation is not entitled to claim damages resulting from unauthorised occupation of the leased premises by a third person. Dantex Investment Holdings (Pty) Ltd v Brenner NNO 1989 (1) SA 390 (A) The owner’s delictual claim for patrimonial loss caused by the unlawful occupation of her or his land is still available, even though the right to claim eviction has been curtailed by legislation. Mkangeli v Joubert [2002] 2 All SA 473 (A); 2002 (4) SA 36 (SCA) PRECEDENTS Claim – by hire-purchase purchaser 1. Plaintiff is the hire-purchaser of vehicle [identify] in terms of a hire-purchase agreement [particularise]. 2. In terms of [claim] of the agreement, the risk relating to the vehicle passed to plaintiff. 3. Defendant negligently [set out detail] damaged the vehicle by [particularise]. 4. As a result of defendant’s wrongful and negligent act, plaintiff suffered damages [detail]. Claim – by possessor [Taken from Smit v Saipem 1974 (4) SA 918 (A) at 933E–H.] 1. Plaintiff is, and at all times material to this action was, in civil possession of [describe properties]. The aforesaid erven are hereinafter referred to as “the erven”. [Page 289] 2. Plaintiff acquired civil possession of the erven on 10 February 1970, under and by virtue of three separate deeds of sale entered into on 10 February 1970, between certain third parties as sellers and plaintiff as purchaser. 3. It was an express term of the aforesaid deeds of sale that plaintiff would be given possession and occupation of the relevant erven on the date of signature of the said deeds of sale and that the risk in respect of the relevant erven would pass to plaintiff on the date of signature of the said deeds of sale. 4. During or about the month of January 1972, defendant wrongly trespassed on the erven by: (a) driving heavy earthmoving machinery over the erven; (b) damaging and/or uprooting certain trees and other indigenous plants; (c) dumping certain filling on the erven; (d) changing the contours of the erven; (e) blocking plaintiff’s access to the erven. 5.
As a result of defendant’s aforesaid wrongful conduct, plaintiff has suffered damages in an amount of [Rx], which amount defendant is, in the premises, obliged to pay but, notwithstanding due demand, fails to pay to plaintiff. Claim – by new owner 1. Plaintiff became the registered owner of [property] on 1 January 1990. 2. Defendant was in wrongful occupation of the property from 1 January 1990 to 31 December 1990. 3. Plaintiff only obtained occupation of the property on 1 January 1991. 4. Because of defendant’s wrongful occupation of the property, plaintiff suffered damages. [Detail]. [See Hefer v Van Greuning 1979 (4) SA 952 (A).] Pleadings/Amlers Precedents of Pleadings/P/Possessors: Eviction Possessors: Eviction See : EVICTION OR EJECTMENT Pleadings/Amlers Precedents of Pleadings/P/Prayers Prayers General: Every pleading must end with a prayer for the relief sought. The prayer must be formulated with precision and must be consistent with the allegations of fact that precede it. A plus petitio can be ignored. Interest: See : INTEREST Costs: Failure to include a prayer for costs does not disentitle a court from granting a costs order, if the defendant appears and opposes the relief sought. Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) at 632–633 Alternative relief: It is usual to insert a prayer for alternative relief. It is unnecessary because it does not enable a court to grant relief that is inconsistent with the factual statements and the terms of the express claim. Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) A court is, in any event, empowered to grant similar or lesser relief than the relief sought. Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272 Johannesburg City Council v Bruma Thirty-Two (Pty) Ltd 1984 (4) SA 87 (T) [Page 290] Pleadings/Amlers Precedents of Pleadings/P/Pre-emption Pre-emption Related subject:
OPTIONS
General: A right of pre-emption is similar to a right of first refusal or to a right to repurchase the object sold. It is of the essence of the right of pre-emption that the grantor undertakes not to sell the object unless the grantee has been given a reasonable opportunity to purchase it at the same price as that at which the grantor is prepared and willing to sell it to a third party. Hartsrivier Boerderye (Edms) Bpk v Van Niekerk 1964 (3) SA 702 (T) A right of pre-emption must be strictly construed as against the grantee. Owsianick v African Consol Theatres (Pty) Ltd 1967 (3) SA 310 (A) Bellairs v Hodnett 1978 (1) SA 1109 (A) The grant of a pre-emptive right does not compel the grantor to sell the object at the behest of the grantee. It merely compels the grantor to offer it for sale to the grantee if the grantor intends selling it to a third party. Interdict: The holder of a pre-emptive right may interdict the passing of transfer of the object, should the grantor sell it to a third person without allowing the grantee the opportunity of purchasing it. In such a case, the grantor must be joined as a party. Le Roux v Odendaal 1954 (4) SA 432 (N) Krauze v Van Wyk 1986 (1) SA 158 (A) Specific performance: The grantee is also entitled to claim specific performance from the grantor if the object has not yet been transferred to the third party.
Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A) Hirschowitz v Moolman 1983 (4) SA 1 (T); 1985 (3) SA 739 (A) Cf Smuts v Booyens; Markplaas (Edms) Bpk v Booyens [2001] 3 All SA 536 (A); 2001 (4) SA 15 (SCA) Exercise of right: The grantee, by exercising the right of pre-emption, concludes the contract of sale by means of a unilateral declaration of intent. He or she may then claim delivery from a third party who, with knowledge of the right, took transfer of the subject-matter of the right. Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A) PRECEDENTS Claim – to enforce right of pre-emption 1. On [date] at [place], plaintiff and first defendant, both acting personally, entered into an oral agreement in terms of which first defendant granted to plaintiff a right of pre-emption in respect of his [description] motor vehicle [registration number]. 2. In terms of the agreement, first defendant was obliged, should he decide to sell the aforesaid vehicle, to offer it first to plaintiff. 3. Despite this agreement and in breach thereof, first defendant sold the aforesaid vehicle to second defendant at the price of [amount]. [Page 291] 4. Before delivery of the vehicle to second defendant, plaintiff informed both defendants that he was willing to purchase the aforesaid vehicle at the same price as paid therefor by second defendant and tendered payment thereof. 5. In the premises, a valid and binding agreement of sale exists between plaintiff and first defendant. 6. Despite demand, first defendant has refused to recognise plaintiff’s rights to the vehicle and has delivered it to second defendant, who took delivery of the vehicle, well knowing of plaintiff’s rights. WHEREFORE plaintiff again tenders payment of the purchase price of [amount] against delivery of the vehicle to him and claims: An order that second defendant deliver to plaintiff the [description] motor vehicle [registration number]. Claim – for interdict and enforcement of pre-emptive right 1. On [date] at [place], first defendant granted to plaintiff, in terms of a written contract, the first right to purchase the property known as [address]. The parties acted personally. A copy of the agreement is annexed hereto and marked “A”. 2. On [date], first defendant, in breach of the agreement and without giving plaintiff the opportunity of exercising his right, entered into a written deed of sale with second defendant in terms of which the latter purchased the said property for [amount]. Transfer to second defendant has not yet been effected. 3. Plaintiff, on ascertaining that first defendant had entered into the deed of sale with second defendant, notified first defendant in writing that he (plaintiff) was exercising his right of pre-emption and, at the same time, tendered payment of the sum of [amount]. A copy of the exercise of the right of pre-emption is annexed hereto and marked “B”. WHEREFORE, tendering as aforesaid, plaintiff claims: (a) (b)
An order restraining first defendant from passing transfer of the said property to second defendant. An order directing first defendant to take all steps necessary to pass transfer of the property to plaintiff.
Pleadings/Amlers Precedents of Pleadings/P/Prescription: Acquisitive Prescription: Acquisitive
Statutes: The Prescription Act 68 of 1969, which came into force on 1 December 1970, applies to prescription that commenced to run from that date. If the required period expired before this Act’s commencement, the Prescription Act 18 of 1943 Repealed Act Act 18 of 1943 has been repealed by s 22 of Act 68 of 1969 applies. If the prescription period began to run under the 1943 Act and expired after its repeal, the 1943 Act applies to the period prior its repeal, and the 1969 Act applies to the remaining prescription period. Prescription Act 68 of 1969 s 5 Prescription under the 1969 Act: A party claiming acquisitive prescription of a movable or immovable object under this Act must allege and prove: (a)
civil possession – ie, possession as if he or she were the owner; Pienaar v Rabie 1983 (3) SA 126 (A) at 134 Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) Minnaar v Rautenbach [1999] 1 All SA 571 (NC)
(b) possession for an uninterrupted period of 30 years or for a period which, together with any period for which the thing was possessed by any pre-decessors in title, constitutes an uninterrupted period of 30 years; Cf Barker NO v Chadwick 1974 (1) SA 461 (D) [Page 292] (c)
that the possession was exercised openly; Cf Bisschop v Stafford 1974 (3) SA 1 (A)
(d) adverse user (this element is probably encompassed by the first element.) Prescription Act 68 of 1969 s 1 Cf Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) Procedure: Prescription must be pleaded specifically. Prescription Act 68 of 1969 s 17 The motion procedure prescribed in section 33 of the Deeds Registries Act 47 of 1937 for the registration of land acquired by, inter alia, prescription is permissive and not obligatory. Ex parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N) State land: As from 28 June 1971, State land is not capable of being acquired by any person by means of prescription. State Land Disposal Act 48 of 1961 s 3 Servitudes: The principles relating to the acquisition of servitudes by prescription are very similar to those relating to the acquisition of ownership. The obvious difference is that, instead of possession, it must be shown that the claimant has exercised the rights and powers that a person who has a right to such servitude is entitled to exercise. Prescription Act 68 of 1969 s 6 PRECEDENTS Claim – ownership 1. Since [date] to date hereof (being a period of 30 years or more), plaintiff has continuously, openly and, as if he were the owner, possessed [property] of which defendant is the registered owner. 2. At no time during the aforesaid period has plaintiff acknowledged defendant’s rights or those of his predecessors in title to and in respect of the said property. 3. In the premises, plaintiff has become the owner of [property] in terms of the provisions of section 1 of Act 68 of 1969. Claim – relating to servitude 1. Since [date] (being more than 30 years before), plaintiff has used a road from [place] to [place] running over defendant’s farm openly, continuously and as though he were entitled to do so. At no time has plaintiff acknowledged defendant’s right to prevent him from using the said road.
2.
3. In the premises, plaintiff has acquired a servitude of right of way over defendant’s property in terms of section 6 of Act 68 of 1969. Claim – for cancellation of servitude 1. Plaintiff is the owner of a farm [X] in the district of [state district]. 2. Defendant is the owner of the adjoining farm [Y]. 3. Against the title deeds of farm [X] is registered a servitude of right of way in favour of farm [Y] in the following terms: [detail]. [Page 293] 4. Defendant and his predecessors in title have not exercised the aforesaid servitude for an uninterrupted period exceeding 30 years. In the premises, plaintiff is entitled to a cancellation of the servitude in terms of section 7 of Act 68 of 1969.
5.
Pleadings/Amlers Precedents of Pleadings/P/Prescription: Extinctive Prescription: Extinctive Related subjects:
STATE LIABILITY
Statutory provisions: The Prescription Act 68 of 1969 provides in chapter III for the extinction of debts by prescription. The general provisions of the Act regarding such matters as the delay of the completion or the interruption of prescription are of application to other statutes which contain prescriptive periods, unless the words of those other statutes clearly indicate the contrary. Prescription Act 68 of 1969 s 17 President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A) Road Accident Fund v Smith NO [1998] 4 All SA 429 (A); 1999 (1) SA 92 (SCA) Moloi v Road Accident Fund [2000] 4 All SA 576 (A); 2001 (3) SA 546 (SCA) Commissioner for Customs & Excise v Standard General Ins Co Ltd 2001 (1) SA 978 (SCA) Some statutes prescribed pre-conditions in respect of prior notice and the time within which litigation against certain public authorities or organs of State must be instituted, as well as special prescriptive periods. These provisions have been replaced by the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. See : STATE LIABILITY Effect of prescription: A debt is extinguished by prescription after the lapse of the period applicable in respect of that debt. This means, inter alia, that the debt cannot be revived, even under the provisions relating to the interruption of prescription by the acknowledgement of liability, unless such acknowledgement amounts to a new undertaking. Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C) Similarly, while a prescribed debt cannot be set off against any claim, payment of a prescribed debt is regarded as valid payment of the debt and cannot be reclaimed. Prescription Act 68 of 1969 s 10(3) Procedure: A court may not, of its own motion, take notice of prescription. The proper way of raising prescription in action proceedings is by way of a plea or special plea, not by way of exception. The reason for this is that the plaintiff may have a valid answer to the allegation of prescription, which may be raised in replication. Prescription Act 68 of 1969 s 17 Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A) See : SPECIAL PLEAS A debtor (and, presumably, a creditor) is entitled to raise, by way of an action or application for a declaratory order, the question of whether the debt has become prescribed. Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A) [Page 294] The right to invoke prescription is not the sole prerogative of a defendant. It can be raised by a person, other than the debtor, who has a real interest in the claim – for example, as a surety. Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C) The debt: Prescription extinguishes a debt. Although not defined, the term “debt” refers to anything that is owed or due – ie, anything such as money, goods or services which one person is under an obligation to pay or to render to another.
Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) It includes, generally, a debt owed to the State as well as debts of statutory origin. Oertel NNO v Direkteur van Plaaslike Bestuur 1983 (1) SA 354 (A) When prescription begins to run: The party who raises prescription must allege and prove the date of the inception of the period of prescription. Gericke v Sack 1978 (1) SA 821 (A) As a general rule, prescription begins to run as soon as the debt is due. Prescription Act 68 of 1969 s 12(1) Santam Ltd v Ethwar [1999] 1 All SA 252 (A); 1999 (2) SA 244 (SCA) This means that the debt must be immediately claimable by the creditor in legal proceedings and be one in respect of which the debtor is under an obligation to perform immediately. Benson v Walters 1984 (1) SA 73 (A) at 82 Uitenhage Municipality v Molloy [1998] 1 All SA 140 (A); 1998 (2) SA 735 (SCA) A debt, whether ex contractu, ex delicto or otherwise, is not deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts giving rise to such debt, provided that a creditor who could have acquired the knowledge by exercising reasonable care is deemed to have such knowledge. Prescription Act 68 of 1969 s 12(3) Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika [2001] 1 All SA 107 (A); 2001 (1) SA 987 (SCA) Van Immerzeel & Pohl v Samancor Ltd [2001] 2 All SA 235 (A); 2001 (2) SA 90 (SCA) It is for the party raising prescription to allege and prove the date on which the creditor acquired knowledge of the debtor’s identity and the date on which the creditor acquired knowledge of the facts from which the debt arose. The word “debt” does not refer to the cause of action but, more generally, to the claim. The defendant may, in the alternative, allege and prove the date on which the creditor could, with the exercise of reasonable care, have acquired the relevant knowledge. Cf Gericke v Sack 1978 (1) SA 821 (A) Drennan Maud & Partners v Town Board of the Township of Pennington [1998] 2 All SA 571 (SCA); 1998 (3) SA 200 (SCA) Period of prescription: The general rule is that a debt prescribes after three years. Exceptions to this rule are the following: (a) debts secured by mortgage bond, judgment debts, debts in respect of taxation or levies, and debts owed to the State in respect of any share of the profits in respect of the right to mine minerals or other substances – 30 years; [Page 295] (b) (c) (d)
certain other debts owed to the State – 15 years; debts arising from a negotiable instrument or notarial contract – six years; a claim for a contribution in terms of the Apportionment of Damages Act 34 of 1956 –12 months calculated from the date of the judgment in respect of which a contribution is claimed (section 2(6)(b)).
Delay of completion of prescription: The onus is on the creditor to allege and prove that the completion of prescription was delayed under the circumstances set out in section 13. Regering van die RSA v SA Eagle Versekeringsmaatskappy Bpk 1985 (2) SA 42 (O) Typical examples are where the creditor is a minor, the debtor is outside the Republic, the debt is the object of a dispute subjected to arbitration, or where the debt is the object of a claim filed against the estate of a debtor who is deceased, insolvent or in liquidation. If one of these circumstances is present, the period of prescription will not be completed before a year has lapsed after the day on which the relevant impediment has ceased to exist. Van Staden v Venter 1992 (1) SA 552 (A) Interruption of prescription: The creditor bears the onus of alleging and proving interruption of prescription by either: (a) an express or tacit acknowledgement of liability by the debtor or her or his agent; or Prescription Act 68 of 1969 s 14 Pentz v Government of the RSA 1983 (3) SA 584 (A) Aussenkehr Farms (Pty) Ltd v Trio Transport CC [2002] 3 All SA 309 (A); 2002 (4) SA 483 (SCA) (b)
the service on the debtor of any process whereby the creditor claims payment of the debt. Prescription Act 68 of 1969 s 15
Waiver of prescription: The right to rely on prescription can be waived. De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) Amendment of pleading: In amending a pleading, the question often arises as to whether the amendment introduces another cause of action that has already been prescribed. If it does, the amendment may be refused. In view of the fact that the plaintiff may have an answer to the plea of prescription, it is under special circumstances only that an amendment can be refused on this ground. Cordier v Cordier 1984 (4) SA 524 (C) Province of the Free State v Williams NO [2000] 2 All SA 172 (A); 2000 (3) SA 65 (SCA) Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit [2000] 2 All SA 115 (A); 2000 (2) SA 789 (SCA) PRECEDENTS Defendant’s special plea 1. Plaintiff’s claim is based on a contract which was concluded on [date]. On that date, plaintiff’s claim fell due. [Page 296] 2. Plaintiff’s summons was served on defendant on [date], which is more than three years after the date on which the claim arose. 3. In the premises, plaintiff’s claim is prescribed in terms of section 11 of Act 68 of 1969. WHEREFORE defendant prays that plaintiff’s claim be dismissed with costs. Replication 1. Plaintiff admits the allegations in paragraphs 1 and 2 of defendant’s special plea, but alleges that, on [date], defendant wrote a letter to plaintiff in which he acknowledged his indebtedness to plaintiff. 2. In terms of section 14 of Act 68 of 1969, the running of prescription was interrupted by this acknowledgement. In the premises, plaintiff denies that his claim has prescribed.
3.
WHEREFORE plaintiff persists in his claim. Replication Plaintiff admits the allegations in paragraphs 1 and 2 of defendant’s special plea, but alleges that: (a) plaintiff attained his majority on [date] – that is, less than one year prior to the service of summons upon defendant; (b)
in terms of section 13 of Act 68 of 1969, the completion of prescription is delayed until one year after the date on which plaintiff ceased to be a minor.
WHEREFORE plaintiff persists in his claim. Pleadings/Amlers Precedents of Pleadings/P/Privacy Privacy See : INIURIA Pleadings/Amlers Precedents of Pleadings/P/Professional Liability Professional Liability See : The relevant discipline involved. Pleadings/Amlers Precedents of Pleadings/P/Promissory Notes Promissory Notes Related subjects:
BANKERS CHEQUES Procedure: Since a promissory note is a liquid document, the provisional sentence procedure is available. Claim against the maker: A plaintiff claiming on a promissory note must allege and prove that: (a) the plaintiff is the legal holder; (b) the defendant signed the note as promissor; (c) the note is due and payable; (d) if, in the body of the note, a place for payment is stated, presentment for payment at that place did take place; Bills of Exchange Act 34 of 1964 s 91 (e)
the note was dishonoured by non-payment. Bills of Exchange Act 34 of 1964 s 45
[Page 297] Claim against an endorser: In a claim against an endorser, it must be alleged that: (a) the plaintiff is the legal holder of the note; (b) the defendant signed it as endorser; (c) the note is due and payable; (d) the note was duly presented for payment; Bills of Exchange Act 34 of 1964 s 91 (e)
the note was dishonoured by non-payment; Bills of Exchange Act 34 of 1964 s 45
(f) notice of dishonour was given; or Bills of Exchange Act 34 of 1964 s 46 (g)
that notice of dishonour was dispensed with for a reason set out in section 48.
PRECEDENTS Claim – against promissor 1. Plaintiff is the legal holder of a promissory note signed by defendant as promissor and in terms of which defendant promised to pay to plaintiff on demand the sum of [amount] at defendant’s place of business, being [specify]. A copy of the note is annexed hereto. 2. On [date], plaintiff duly presented the note for payment at the aforesaid address, but the note was dishonoured by non-payment. 3. Notice of dishonour is dispensed with in terms of section 48(2)(c)(iii) of Act 34 of 1964. Claim – against endorser 1. Plaintiff is the legal holder of a promissory note made by one [name], in terms of which [name] promised to pay to defendant or order the sum of [amount] on demand at [place]. A copy of the note is annexed hereto. 2. Defendant duly endorsed and delivered the note to plaintiff. 3.
Plaintiff duly presented the note for payment at [place] on [date] but it was dishonoured by non-payment. Notice of dishonour was duly given to defendant on [date] at [place] by [name].
4.
Pleadings/Amlers Precedents of Pleadings/P/Provincial and Local Authorities Provincial and Local Authorities Related subjects:
CITATIONS PRESCRIPTION STATE LIABILITY
Pleadings/Amlers Precedents of Pleadings/Q/Quantity Surveyors Quantity Surveyors See the Quantity Surveying Profession Act 49 of 2000. The rights and duties of quantity surveyors are similar to those of architects (depending on the terms of the contract with the employer) and reference should be made to ARCHITECTS. [Page 298] Pleadings/Amlers Precedents of Pleadings/R/Ratification Ratification General: Ratification is the validation of a juristic act concluded on a person’s behalf by another who did not have authority to conclude such act. It is a unilateral act and, like any other expression of will, it can be express or by conduct. The purported principal acquires no rights and incurs no obligations unless and until the “principal” ratifies such act. Ratification is retroactive in effect. Vereins- und Westbank AG v Veren Investments 2002 (4) SA 421 (SCA) Ratification is not possible in respect of any act which is in conflict with the common law or a statutory provision. Mathipa v Vista University 2000 (1) SA 396 (T) An essential requirement for a valid ratification is that the principal must have intended to adopt the unauthorised act of the agent done on her or his behalf, and that the intention must be expressed with a full knowledge of all the facts or with the object of confirming the agent’s action. Smith v KwaNonqubela Town Council [1999] 4 All SA 331 (A); 1999 (4) SA 947 (SCA) Ratification cannot affect vested rights. Smith v KwaNonqubela Town Council [1999] 4 All SA 331 (A); 1999 (4) SA 947 (SCA) Pleadings/Amlers Precedents of Pleadings/R/Rectification Rectification General: The object of rectification is to have a written contract conform to the common intention of the parties. Rectification overrides the parol evidence rule. Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (SCA); 2000 (1) SA 268 (SCA) The summary of the essential allegations for rectification set out in Strydom v Coach Motors (Edms) Bpk 1975 (4) SA 838 (T) is not in all respects satisfactory and the following exposition is somewhat different. Levin v Zoutendijk 1979 (3) SA 1145 (W) Procedure: As a general rule, rectification should be sought by way of action. However, this rule is not immutable. Fourie’s Poultry Farm (Pty) Ltd v KwaNatal Food Distributors (Pty) Ltd (in liq) 1991 (4) SA 514 (N) at 527 Onus: A party who wishes to rely on rectification must claim rectification in the particulars of claim, the plea or a counterclaim; and that party also bears the onus of proof. Benjamin v Gurewitz 1973 (1) SA 418 (A) at 428 Lazarus v Gorfinkel 1988 (4) SA 123 (C) at 131 Rectification as a claim: The following facts must be alleged and proved: (a) an agreement between the parties which was reduced to writing; (b) that the written document does not correctly reflect the common intention of the parties. This requires that the common continuing intention of the parties, as it existed when the agreement was reduced to writing, be
established. The common intention can be deduced from an antecedent agreement, but this is not the only way in which it may be established; Meyer v Merchants Trust Ltd 1942 AD 244 Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (A) at 503 City Council of the City of Durban v Rumdel Construction (Pty) Ltd [1997] 3 All SA 20 (D) [Page 299] (c) an intention by both parties to reduce the agreement to writing; Meyer v Kirner 1974 (4) SA 90 (N) at 103 (d)
a mistake in drafting the document. Von Ziegler v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T) at 411 Neuhoff v York Timbers Ltd 1981 (4) SA 666 (T) at 674 The mistake may be the result of: (i) a bona fide mutual error; or (ii) an intentional act of the other party. Von Ziegler v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T) at 411 (explaining Mouton v Hanekom 1959 (3) SA 35 (A)) It is not necessary to plead the cause of the mistake; Offit Enterprises (Pty) Ltd v Knysna Development Co (Pty) Ltd 1987 (4) SA 24 (C)
(e) the actual wording of the agreement as rectified. It does not suffice to give the general import of the common intention. Levin v Zoutendijk 1979 (3) SA 1145 (W) The relief is for rectification of the agreement, with or without consequential relief. Levin v Zoutendijk 1979 (3) SA 1145 (W) Rectification as a defence: A defendant may rely on rectification as a defence without having to claim rectification. The facts necessary to establish rectification must be alleged in the plea and the court is then asked in the course of the plea to adjudicate the matter on the basis of the contract as rectified. Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A) at 824 In spite of this, it remains advisable to counterclaim for rectification in all circumstances. If rectification is sought through a counterclaim, the procedure for a claim should be adopted. Whether a defendant can dispense with a counterclaim for rectification where the contract is, in law, required to be in writing remains moot. Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A) Invalid contract: Where a contract is required by statute to be reduced to writing, rectification is possible only if the document, on its face and before rectification, complies with the provisions of the statute. Magwaza v Heenan 1979 (2) SA 1019 (A) Headermans (Vryburg) (Pty) Ltd v Ping Bai [1997] 2 All SA 371 (SCA); 1997 (3) SA 1004 (SCA) Intercontinental Exports (Pty) Ltd v Fowles [1999] 2 All SA 304 (A); 1999 (2) SA 1045 (SCA) Greathead v SA Commercial Catering & Allied Workers Union 2001 (3) SA 464 (SCA) A contract which is invalid because of vagueness may, however, be rectified in order to remove the vagueness if the underlying agreement did not suffer from the same defect. This principle applies only if the contract is not required by statute to be in writing. Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd [2002] 3 All SA 117 (A); 2002 (3) SA 346 (SCA) Non-variation clause: A non-variation clause is not a bar to a claim for rectification. Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd 1980 (4) SA 271 (T) [Page 300] PRECEDENTS Claim – for rectification of deed of sale 1. On [date] at [place], plaintiff (acting personally) and defendant (represented by one [name]) entered into a written deed of sale in terms of which plaintiff purchased from defendant the property known as plot 84 situate at [address] for the sum of [amount]. 2. Plot 84 was pointed out by the aforesaid agent to plaintiff prior to the entering of the agreement.
3. The written contract does not correctly record the agreement between the parties in that it describes the plot sold as being plot 48. 4. The incorrect description of the plot purchased by plaintiff was occasioned by a common error of the parties and the parties signed the written contract in the bona fide but mistaken belief that it recorded the true agreement between the parties. 5. Plaintiff has demanded rectification of the contract so as to conform with the common intention of the parties and has tendered against transfer into his name of plot 84 the full purchase price and also fulfilment of all his other obligations under the contract. 6. Defendant refuses to consent to a rectification of the agreement and refuses to transfer plot 84 into plaintiff’s name. WHEREFORE plaintiff, repeating his tender, claims: (a)
An order rectifying the written contract, Annexure “A”, by the substitution of the words “plot 84” for the words ”plot 48” wherever the latter occur.
(b) An order directing defendant to pass transfer into plaintiff’s name of plot 84. Pleadings/Amlers Precedents of Pleadings/R/Rei Vindicatio Rei Vindicatio See : ACTIO AD EXHIBENDUM, VINDICATION Pleadings/Amlers Precedents of Pleadings/R/Replication Replication A replication in the high court or a reply in the magistrate’s court need be filed if necessary only. It is necessary if: (a) the plaintiff wishes to admit allegations contained in the plea; or (b) the plaintiff wishes to confess and avoid allegations contained in the plea. Typically, it is used by a plaintiff to raise estoppel. Mann v Sidney Hunt Motors (Pty) Ltd 1958 (2) SA 102 (G) A replication is not necessary if the plaintiff merely wishes to place in dispute the allegations contained in the plea. The absence of a replication signifies a denial of all the allegations contained in the plea. A replication must: (a) (b) (c)
be consistent with the allegations contained in the particulars of claim; not set out a new cause of action; be in answer to, or a result of, the allegations contained in the plea.
If a plaintiff wishes to file a replication, it is not necessary to deal with all the allegations made in the plea. However, unless there is a general joinder of issue in the replication, those allegations that have not been traversed are deemed to have been admitted. Uniform rule 25 Magistrates’ Courts rule 21. [Page 301] PRECEDENTS Replication Plaintiff admits paragraphs [specify] of defendant’s plea.
1.
2. Plaintiff joins issue with defendant in respect of the other allegations contained in the plea. 3. In the alternative to paragraph 2, and in the event of this honourable court’s finding that the said [name] was not defendant’s agent, plaintiff alleges that defendant is estopped from denying that [name] was his agent because [see : ESTOPPEL]. WHEREFORE plaintiff persists in his claim. Pleadings/Amlers Precedents of Pleadings/R/Repudiation Repudiation Related subject:
CONTRACT: BREACH
Onus: The repudiation or the anticipatory breach of a contract gives rise to a right to cancel the contract. The party who asserts that the other party has repudiated the contract must allege and prove the allegation. Schlinkmann v Van der Walt 1947 (2) SA 900 (E) at 919 In order to rely on such repudiation, the innocent party must allege and prove: (a)
repudiation of a fundamental term of the contract – ie, conduct that exhibits objectively a deliberate and unequivocal intention not to be bound any longer by the contract;
(b) an election to terminate, and (c) communication of such election. Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) Van Rooyen v Minister van Openbare Werke & Gemeenskapsbou 1978 (2) SA 835 (A) Tuckers Land & Development Corp (Pty) Ltd v Hovis 1980 (1) SA 645 (A) Culverwell v Brown 1990 (1) SA 7 (A) Highveld 7 Properties (Pty) Ltd v Bailes [1999] 4 All SA 461 (A); 1999 (4) SA 1307 (A) Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (SCA); 2001 (2) SA 284 (SCA) Relief: The following relief may be sought: (a) restitution; (b) damages, which will usually be assessed as at the agreed date for performance; Novick v Benjamin 1972 (2) SA 842 (A) See : CONTRACT: DAMAGES (c) specific performance of accrued rights. Nash v Golden Dumps (Pty) Ltd 1985 (3) SA 1 (A) PRECEDENTS Claim – for damages and restitution 1. On [date] at [place], the parties entered into a written agreement, a copy of which is attached hereto and marked “A”, in terms of which plaintiff sold [item] to defendant for the sum of [amount]. [Page 302] 2. On [date], defendant informed plaintiff in writing that he was no longer interested in purchasing the said [item]. A copy of the aforesaid letter is attached hereto and marked “B”. 3. The letter constitutes a repudiation of the agreement between the parties. 4. Plaintiff elected to accept the repudiation and terminated the agreement between the parties. The election was conveyed to defendant by letter dated [date]. 5.
As a result of defendant’s aforesaid repudiation, plaintiff suffered damages in the sum of [amount] made up as follows: [detail]. 6. In terms of the agreement, plaintiff delivered to defendant three of the aforesaid [items] and defendant paid the sum of [amount] in respect of the purchase price. 7. Because of the termination of the agreement, plaintiff is entitled to return of the aforesaid [items], and tenders to set off the amount paid by defendant against any damages found by the honourable court to be proven. The value of the three [items] delivered to defendant is [amount].
8.
WHEREFORE plaintiff claims: 1. Payment of [amount] being damages. 2. Return of the three [items] delivered to defendant; alternatively, payment of [amount]. Pleadings/Amlers Precedents of Pleadings/R/Res Iudicata Res Iudicata The exceptio rei iudicatae is based on the irrebuttable presumption that a final judgment on a claim submitted to a competent court is correct. This presumption is founded on public policy, which requires that litigation should not be endless; and on the requirement of good faith, which does not permit of the same thing being demanded more than once. African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 564 Wright v Westelike Provinsie Kelders Bpk [2001] 4 All SA 581 (C); 2001 (4) SA 1165 (C) A related rule is that a party with a single cause of action is obliged to claim in one and the same action whatever remedies the law accords upon that cause. Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472 Procedure: In spite of the fact that the defence was known at common law as an exceptio, it cannot be raised by way of exception but must be raised in a plea or special plea. Unless the facts on which the defence is based are admitted, the party raising the defence must lead evidence to establish it. Lowrey v Steedman 1914 AD 532 If the defence is not specifically pleaded, it is assumed that the defence was waived. Blaikie-Johnstone v P Hollingsworth (Pty) Ltd 1974 (3) SA 392 (D) at 395 Onus: It is for the party who raises res iudicata to allege and prove all the elements underlying the defence. Hochfeld Commodities v Theron 2000 (1) SA 551 (O) at 566–567 Tradax Ocean Transportation SA v MV ‘Silvergate’ properly described as MV ‘Astyanax’ [1999] 3 All SA 175 (A); 1999 (4) SA 405 (SCA) Final judgment: The judgment or order must be a final and definitive judgment or order on the merits of the matter, and the judgment must be one of a competent court. For that reason, an order given in interim interdict [Page 303] proceedings or an order that is subject to variation or review because of changed circumstances cannot be relied on for this defence. Le Roux v Le Roux 1967 (1) SA 446 (A) at 463 African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A) CTP Ltd v Independent Newspapers Holdings Ltd 1999 (1) SA 452 (W) An absolution order is not a final order. Same parties: The judgment relied on must be a judgment given in litigation to which the present parties or their privies were parties. This requirement does not, however, apply to a judgment in rem. Le Roux v Le Roux 1967 (1) SA 446 (A) Same thing on same ground: The cause of action in both cases must be the same, and the same thing (relief) must have been claimed or may have been claimed in both cases. Goldfields Laboratories (Pty) Ltd v Pomate Engineering (Pty) Ltd 1983 (3) SA 197 (W) Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 551 Union Wine Ltd v E Snell & Co Ltd 1990 (2) SA 189 (C) National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v International Liquor Distributors (Pty) Ltd [2001] 1 All SA 417 (SCA); 2001 (2) SA 232 (SCA) Appeal: A pending appeal, even if it suspends a judgment, is no answer to a plea of res iudicata. Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) Cf Jones v Krok 1995 (1) SA 677 (A)
Issue estoppel: A party to previous litigation is not only prevented from disputing the correctness of a judgment in the sense that he or she may not again rely on the same cause of action, but he or she is also prevented from disputing an issue decided by the previous court. The rule is that, where the decision set up as res iudicata necessarily involved a judicial determination of some question of law or issue of fact, in the sense that the decision could not have been legitimately or rationally pronounced by the tribunal without, at the same time, determining that question or issue in a particular way, such determination, though not declared on the face of the recorded decision, is deemed to constitute an integral part of that decision as effectively as if it had been made so in express terms. Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 551–552 Horowitz v Brock 1988 (2) SA 160 (A) Boland Bank Bpk v Steele 1994 (1) SA 259 (T) Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) PRECEDENTS Claim – of res iudicata 1. On [date] at [place], plaintiff issued a summons against defendant for a declaratory order that defendant is liable to plaintiff for payment of any damages suffered by plaintiff as a result of [detail] in [case number]. 2. On [date], this honourable court in the said case dismissed plaintiff’s claim with costs. A copy of the order is annexed hereto. [Page 304] 3. Plaintiff’s present claim for payment of damages suffered as a result of [detail] is a claim for the same thing on the same ground against the same party. 4. Defendant accordingly pleads that plaintiff’s present claim was finally adjudicated upon by a court of competent jurisdiction. Pleadings/Amlers Precedents of Pleadings/R/Restraint of Trade Restraint of Trade Statute: Restraints of trade may be affected by the provisions of the Competition Act 89 of 1998 and be subject to the jurisdiction of the structures created by that Act. Constitutionality: On the constitutionality of a restraint of trade, see: Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain [1997] 4 All SA 650 (SE); 2001 (2) SA 853 (SE) Coetzee v Comitis [2001] 1 All SA 538 (C); 2001 (1) SA 1254 (C) Enforcement: A party wishing to enforce a restraint of trade agreement need only allege and prove the agreement and its breach by the defendant. While the relief ordinarily sought is an interdict, damages for breach of contract may also be claimed. There is a difference between a restraint of trade agreement and an agreement regulating trade, although restricting it. Nel v Drilec (Pty) Ltd 1976 (3) SA 79 (D) Hunt h/a Realty 1 Elk Estates v Dermann [1997] 4 All SA 665 (T) Invalidity: A party wishing to be absolved from a restraint of trade agreement has to allege and prove that the enforcement of the restrictive condition would be contrary to public policy. Magna Alloys & Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 893 The factual basis for this allegation must be set out. A contract in restraint of trade must protect some proprietary interest of the person who seeks to enforce it, before it will be enforced. Such interest may take the form of trade secrets or confidential information or goodwill or trade connections. This means that the restraint is enforceable unless the defendant discharges the onus of proving that, at the time the enforcement is sought, the restraint is directed solely to the restriction of fair competition with the covenantee, and that the restraint is not, at that time, reasonably necessary for the legitimate protection of the covenantee’s protectable proprietary interests, being goodwill or trade secrets. Sibex Engineering Services (Pty) Ltd v Van Wyk 1991 (2) SA 482 (T) In determining whether the agreement should be enforced, regard is had to the circumstances then present and not to when the agreement was entered into. The conflicting considerations are, on the one hand, that agreements ought to be honoured and, on the other, that everyone ought to be free to seek fulfilment in her or his business or profession and that the right to freedom of trade should be protected. Bonnet v Schofield 1989 (2) SA 156 (D) Basson v Chilwan 1993 (3) SA 742 (A) Townsend Productions (Pty) Ltd v Leech [2001] 2 All SA 255 (C); 2001 (4) SA 33 (C) Bridgestone Firestone Maxiprest Ltd v Taylor [2003] 1 All SA 299 (N)
The court may declare the whole or part of the restraint unenforceable. National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 (3) SA 1092 (T) Reeves v Marfield Insurance Brokers CC 1996 (3) SA 766 (A) [Page 305] If the restraint is too broad, it is for a plaintiff who wishes to enforce a lesser restraint to raise divisibility as an issue, at least in the replication. Sunshine Records (Pty) Ltd v Frohling 1990 (4) SA 782 (A) at 795–796 PRECEDENTS Claim – for interdict Plaintiff is an accountant carrying on his profession at [address].
1.
2. On [date], plaintiff employed defendant as an articled clerk in terms of a written agreement entered into between the parties personally. A copy of the agreement is annexed hereto. 3. In terms of the agreement, defendant agreed not to carry on, within a period of [number] years of ending his employment with plaintiff, the profession of an accountant within [number] kilometres of plaintiff’s place of practice. 4. Defendant left plaintiff’s employ on [date]. 5. During [state period], defendant commenced to carry on and has continued to carry on the profession of an accountant at [address] which is within [number] kilometres of plaintiff’s said place of practice. WHEREFORE plaintiff claims: An order restraining defendant from carrying on the profession of an accountant within [number] kilometres from plaintiff’s place of practice at [address] for the remainder of the period of [state period]. Claim – for interdict and damages 1. In terms of a written contract dated [date] entered into at [place], defendant sold to plaintiff a general dealer’s business known as [name]. The parties acted personally. A copy of the agreement is annexed hereto. 2. The agreement provides, inter alia, that defendant will not be interested, directly or indirectly, in any general dealer’s business for a period of [number] years from the date of the agreement, within a radius of [number] kilometres of the business sold. 3. It was a further term of the agreement that, in the event of defendant’s breaching the condition, he would pay to plaintiff the sum of [amount] as liquidated damages. 4. On [date], defendant commenced to carry on and is still carrying on within the prohibited area, and in breach of the condition, the business of a general dealer at [address] under the name of [name]. 5. As a consequence of such breach and in terms of the agreement, defendant is indebted to plaintiff in a sum of [amount] as liquidated damages. WHEREFORE plaintiff claims: (a) An interdict restraining defendant from carrying on or being interested, directly or indirectly, in the business of a general dealer within [number] kilometres of [place] until [date]. (b)
Payment of [amount] being damages.
Pleadings/Amlers Precedents of Pleadings/R/Retention Retention See : LIENS [Page 306]
Pleadings/Amlers Precedents of Pleadings/R/Roads Roads Related subjects: VIA NECESSITATE VETUSTAS Alternatives: In claiming a right of way over another’s property, consideration should be given to the following possibilities: (a) (b)
the enforcement of an existing registered servitude; the enforcement of an unregistered servitude to which the defendant is bound either because the defendant is a party thereto or because of the doctrine of notice;
(c) vetustas; (d) via necessitate; or (e) public roads created in terms of the provisions of the respective provincial legislation. De Beer v Coetzee 1956 (3) SA 263 (T) Coetzee v De Beer 1959 (1) SA 690 (T) Subdivision of land: If, upon the subdivision of a dominant tenement, the parties agree on a route, the owner of the subdivided portion is entitled to the use of the servitude, as defined, only and is not entitled to select an additional route over the servient tenement. Smith v Mukheibir [2001] 3 All SA 141 (SCA); 2001 (3) SA 591 (SCA) PRECEDENTS Claim – declaring a road to be a public road 1. Plaintiff is the owner of farm [X] situated at [place]. 2. Defendant owns farm [Y] situated to the south of and adjoining farm [X]. 3. For a continuous period since [date] [more than 15 years], a road has existed traversing farm [Y] between a point on the western highway and plaintiff’s farm. The road was used by the public during this period.
4.
5. The road does not traverse land proclaimed for the purpose of any law relating to the mining for precious or base minerals or precious stones or land held by any person under mining title. 6. On [date], defendant threatened to close the aforesaid road. 7. The location of the road is indicated on the annexed map. WHEREFORE plaintiff claims: An order declaring the road [location] to be a public road in terms of [state statutory provision]. Pleadings/Amlers Precedents of Pleadings/S/Sale Sale Related subjects: ALIENATION OF LAND CONTRACT LATENT DEFECTS SALE OF LAND ON INSTALMENTS WARRANTY AGAINST EVICTION The contract: A party relying on a contract of sale must allege and prove a contract in which the parties agreed:
(a) to purchase and sell; [Page 307] (b) (c)
on the thing purchased; on the price.
The general rules applicable to the pleading of contracts apply. Price: There can be no valid contract of sale unless the parties have agreed, expressly or tacitly, on a purchase price. They must either fix the amount of the price in their contract or agree on some external, objective standard that makes it possible to determine the price without further reference to them. Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) If reliance is placed on a tacit term, it is normal to state that the agreement was that the price would be the seller’s usual price. Thing sold: The object sold must be identified or identifiable from the contract. Clements v Simpson 1971 (3) SA 1 (A) Kriel v Le Roux [2000] 2 All SA 65 (SCA) Vermeulen v Goose Valley Investments (Pty) Ltd [2001] 3 All SA 350 (A); 2001 (3) SA 986 (SCA) Claim for purchase price: A seller who claims for payment of the purchase price is claiming for specific performance and must allege and prove: (a) a valid contract of sale; Horwitz v Hendricks 1928 AD 391 (b)
that the purchase price is due and payable because: the goods have been delivered in conformity with the terms of the contract; Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) at 537
(i)
(ii) of a tender, against payment, of delivery, in the particulars of claim; or (iii) the contract provides for payment on a specific date independently of the seller’s obligation to make delivery. Pienaar v Fortuin 1977 (4) SA 428 (T) The seller’s claim is then for payment or payment against delivery, and, in the event of failure to pay, for cancellation and damages. Claim for delivery: A purchaser’s claim for delivery is also a claim for specific performance and the purchaser must allege and prove: (a) a valid contract of sale; (b) that delivery is due because: (i) the purchase price has been paid; Wolpert v Steenkamp 1917 AD 493 of a tender of payment against delivery; or Robinson v Hay 1930 AD 444
(ii)
(iii) the contract provides for delivery on a specific date independently of the purchaser’s obligations. See : EXCEPTIO NON ADIMPLETI CONTRACTUS The purchaser’s claim is for delivery or delivery against payment or, in the event of failure to deliver, for cancellation and damages. Upon the breach of an obligation to deliver under a contract of sale, the ordinary measure of damages is the excess over the contract price of the goods sold of the price at which the purchaser could have replaced them in the relevant market. Desmond Isaacs Agencies (Pty) Ltd v Contemporary Displays 1971 (3) SA 286 (T)
[Page 308] PRECEDENTS Claim – for payment after delivery 1. On [date] at [place], the parties entered into an oral agreement of sale in terms of which plaintiff sold to defendant two horses at the price of [amount] payable one week after delivery. 2. On [date], plaintiff delivered the horses to defendant at [place]. 3. Despite demand, defendant has failed to pay the purchase price. Claim – for payment against delivery 1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff sold to defendant two Kruger Rands at a selling price equal to the price quoted by the [bank] for such Kruger Rands on [date], payable on delivery. A copy of the said agreement is attached hereto and marked “A”. On [date], the [bank] quoted the selling price for Kruger Rands at [amount] per coin. In the premises, the purchase price of the two Kruger Rands is [amount].
2. 3.
4. Plaintiff tendered to deliver to defendant the two Kruger Rands against payment of [amount] but defendant refused to accept delivery or to make payment. WHEREFORE plaintiff, tendering as aforesaid, claims payment of [amount]. Claim – for delivery 1. On [date] at [place], the parties entered into an oral agreement of sale in terms of which plaintiff purchased from defendant one [specify] model washing machine. In terms of the agreement between the parties, plaintiff paid the full purchase price to defendant on [date]. Despite his obligation to do so, defendant has failed to deliver the washing machine to plaintiff.
2. 3.
Pleadings/Amlers Precedents of Pleadings/S/Sale of Land on Instalment Sale of Land on Instalment Related subjects:
ALIENATION OF LAND CONTRACT SALE
Statute: The sale of land on instalment is governed by the Alienation of Land Act 68 of 1981. Scope of Act: The provisions of the Act apply to land used or intended to be used mainly for residential purposes, thus excluding, inter alia, agricultural land. Alienation of Land Act 68 of 1981 s 1 sv “land” If, in any proceedings, it is alleged that land sold is used or intended to be used mainly for residential purposes, it is presumed that the land is so used or is intended to be so used, until the contrary is proved. Alienation of Land Act 68 of 1981 s 25 Formalities: The contract must be in writing and signed by the parties or by their agents acting on their written authority. Alienation of Land Act 68 of 1981 s 2(1) [Page 309] In addition, the contract must be drawn in the official language chosen by the purchaser (section 5) and must contain a number of prescribed terms (section 6). In the event of non-compliance with either section 5 or section 6, a court may, at the instance of the purchaser in proceedings instituted within two years of the conclusion of the contract: (a)
declare the contract void ab initio;
(b) rectify the contract; (c) reduce the rate of interest to a rate the court deems just and equitable; or (d) grant alternative relief in its discretion. Alienation of Land Act 68 of 1981 s 24 Certain terms of a contract of the sale of land on instalment are of no force and effect – for instance, terms prohibiting the purchaser from accelerating the discharge of the contract or restricting the right to compensation for improvements. Alienation of Land Act 68 of 1981 s 15(1) Claim by a seller: A seller is, in the event of a breach of the contract on the part of the purchaser, not entitled to enforce any provision of the contract for acceleration (or any other penalty provision) in order to terminate the contract or to institute an action for damages, unless the seller has notified the purchaser, by letter, of the breach concerned and demanded of the purchaser that the breach be rectified, with which demand the purchaser has failed to comply. Alienation of Land Act 68 of 1981 s 19(1) Thirty days’ notice must be given and the notice must contain a description of the alleged breach of contract and an indication of the steps the seller intends to take if the breach is not rectified. Alienation of Land Act 68 of 1981 s 19(2) A seller’s claim in enforcing a contract is limited to the amounts specified in section 12(2). Claim by a purchaser: A purchaser may, at any time, claim transfer of the property against payment of the purchase price (or, in the case of a remote purchaser, the fulfilment or tender of the obligations of every prior intermediary), provided that the land is registrable at that time. Any term in the agreement limiting this right is of no force and effect. A purchaser who has paid at least 50% of the price is also entitled to demand transfer, provided the land is registrable against registration of a first mortgage bond in favour of the seller. Alienation of Land Act 68 of 1981 s 11 read with ss 17 and 18; s 27 PRECEDENTS Claim – setting aside contract 1. On [date] at [place], the parties entered into a written deed of sale in terms of which defendant sold to the plaintiff the property known as [description] in the township of [specify]. A copy of the deed of sale is attached hereto and marked “A”. [Page 310] 2. In terms of Annexure “A”, the purchase price was payable in six equal instalments, payable half-yearly, with a first instalment payable on or before [date]. 3. The land sold was intended to be used mainly for residential purposes and chapter II of Act 68 of 1981 applies to the contract. In terms of section 6 of Act 68 of 1981, the contract had to contain, inter alia, [detail].
4.
5. Annexure “A” does not contain the said particulars and, therefore, does not substantially comply with the provisions of section 6 of Act 68 of 1981. 6. Plaintiff has paid to defendant the sum of [amount]. WHEREFORE plaintiff claims: (a) (b) (c)
An order declaring the contract of sale between the parties to be null and void ab initio. Repayment to plaintiff of [amount]. Interest on the said amount at [percentage] per annum.
Claim – for cancellation
1. On [date] at [place], the parties entered into a written contract of sale in terms of which plaintiff sold to defendant his property situated at [location] within the jurisdiction of this honourable court. A copy of the deed of sale is attached hereto and marked “A”. 2. In terms of Annexure “A”, defendant was obliged to pay to the plaintiff the following instalments, namely [detail]. Plaintiff failed to pay the first instalment, which was due on [date].
3.
4. On [date], plaintiff sent by registered post to defendant’s address a notice informing him of his breach together with a demand that he rectify his breach by effecting payment of the said instalment within 30 days of the [date] [being the date on which the notice was sent]. A copy of the notice is attached hereto and marked “B”. 5. In terms of Annexure “B”, plaintiff stated that he would cancel the agreement upon failure of defendant to rectify the latter’s breach of contract. 6. Defendant failed to rectify the breach of contract within the allowed period and, on [date], plaintiff notified defendant of the cancellation of the agreement. Despite the cancellation of the agreement, defendant has failed to vacate plaintiff’s premises.
7.
WHEREFORE plaintiff claims: (a) An order declaring that the contract of sale between the parties has been cancelled properly. (b) An order evicting defendant from plaintiff’s property situate at [location]. Pleadings/Amlers Precedents of Pleadings/S/Seduction Seduction Jurisdiction: The jurisdiction of the court is determined according to the principles applicable to claims in delict. Cause of action: The action for seduction is not founded on iniuria since consent is present and, where there is consent, there can be no iniuria. The principle of volenti non fit iniuria is also not applicable to this sui generis action. Bull v Taylor 1965 (4) SA 29 (A) at 37 Card v Sparg 1984 (4) SA 667 (E) Virginity of plaintiff: The plaintiff must allege that, on the occasion of the sexual intercourse, she was a spinster. An allegation that she was, at that time, unmarried, will not suffice, because it does not imply that she was a spinster. Claassen v Van der Watt 1969 (3) SA 68 (T) [Page 311] A spinster at the time of intercourse is presumed to have been a virgin. It is, therefore, not necessary for the plaintiff to allege that she was a virgin. The onus rests on the defendant to disprove her virginity. Sager v Bezuidenhout 1980 (3) SA 1005 (O) If the defendant relies, in support of his allegation that the plaintiff was not a virgin, on an earlier act of intercourse, he should give particulars thereof. Sexual intercourse: The plaintiff must allege and prove sexual intercourse. Corroboration is not required. Mayer v Williams 1981 (3) SA 348 (A) Seduction: The plaintiff must allege that the defendant seduced her. By “seduction” is meant the “leading astray of a woman from the path of virtue” and not the means, deceitful or otherwise, by which it was achieved. Bull v Taylor 1965 (4) SA 29 (A) Once sexual intercourse is admitted or proved, it is presumed, unless the contrary is established, that she “fell as a result of the man’s seductive efforts”. Bull v Taylor 1965 (4) SA 29 (A) The action will fail if the defendant proves that the plaintiff, although a virgin, was in fact the seducer of the defendant. Van der Merwe v Nel 1929 TPD at 551 If the sexual intercourse followed a customary union or a marriage by religious rites, the plaintiff will be non-suited, unless it was falsely represented to her that the religious ceremony constituted a valid marriage or that there was a promise to enter into a legally binding marriage.
Pillai v Pillai 1963 (4) SA 838 (A) Damages: The plaintiff is entitled to damages for her loss of virginity and for the impairment of her marriage prospects. Bensimon v Barton 1919 AD 13 Bull v Taylor 1965 (4) SA 29 (A) Davel v Swanepoel 1954 (1) SA 383 (A) at 389 A seduced woman is presumed to have suffered damages as a result of her defloration. The amount of such damages depends on the circumstances of the case. Lourens v Van Biljon 1967 (1) SA 703 (T) Her subsequent marriage may have a limited effect upon the quantum. Davel v Swanepoel 1954 (1) SA 383 (A) at 389 Result of the seduction: If the plaintiff fell pregnant, she may claim, in addition to her general damages, the lyingin expenses incurred in connection with the pregnancy, birth and care of the child. She may also claim maintenance for herself for a period of confinement before and after the birth of the child, the maintenance being for the benefit of the child. She has no claim for her loss of earnings during this period. Lourens v Van Biljon 1967 (1) SA 703 (T) Card v Sparg 1984 (4) SA 667 (E) [Page 312] PRECEDENTS Claim – for damages 1. Plaintiff is [name], a major spinster of [address]. 2. On [date] at [place], defendant seduced and had sexual intercourse with plaintiff. 3. As a result of the said intercourse, the plaintiff became pregnant and, on [date], gave birth to a child, [name]. 4. As a consequence of the seduction, plaintiff suffered damages in an amount of [amount]. 5. In giving birth to the child, plaintiff incurred lying-in, medical and nursing expenses, and required maintenance during her confinement calculated as follows: (a) (b) (c)
lying-in expenses [amount]; medical and nursing expenses [amount]; maintenance for the period of confinement from [date] to [date] [amount].
Pleadings/Amlers Precedents of Pleadings/S/Set-off Set-off Related subjects:
COUNTERCLAIMS PAYMENT
Set-off: Set-off comes into operation when two parties are mutually indebted to each other and both debts are liquidated and fully due. The one debt extinguishes the other pro tanto as effectually as if payment had been made and can be regarded as a payment brevi manu. Joint Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund 1969 (2) SA 78 (T) Cf ABSA Bank Ltd v Standard Bank of SA Ltd [1997] 4 All SA 673 (A); 1998 (1) SA 242 (SCA) Set-off operates ipso facto and not only after or as a result of the plea of set-off. Great North Farms (Edms) Bpk v Ras 1972 (4) SA 7 (T) Should the creditor claim payment, the defendant must plead and prove set-off in the same way as a defence of payment. But, once set-off is established, the claim is regarded as extinguished from the moment the mutuality of the debts existed. Schierhout v Union Government (Minister of Justice) 1926 AD 286 at 290 Mahomed v Nagdee 1952 (1) SA 410 (A) AAA Brick Co (Pty) Ltd v Coetzee [1996] 1 All SA 23 (B); 1996 (3) SA 578 (B)
Liquidated debts: Only a liquidated debt can be set-off. A defendant wishing to rely on an unliquidated debt must file a claim in reconvention and pray for the postponement of judgment on the plaintiff’s claim pending the judgment on the claim in reconvention. See : COUNTERCLAIMS Essentials: A party wishing to rely on set-off must allege and prove the following: (a) (b)
the indebtedness of the plaintiff to the defendant; that the defendant’s debt is also due and legally payable; Mahomed v Nagdee 1952 (1) SA 410 (A) Schnehage v Bezuidenhout 1977 (1) SA 362 (O)
[Page 313] (c) that both debts are liquidated debts. A debt is liquidated if: (i) it is liquid in the sense that it is based on a liquid document; (ii) it is admitted; (iii) its money value has been ascertained; or (iv) it is capable of prompt ascertainment; Treasurer-General v Van Vuren 1905 TS at 582 Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 (C) Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T) Adjust Investments (Pty) Ltd v Wiid 1968 (3) SA 29 (O) (d) that the reciprocal debt was owed by the plaintiff to the defendant. Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C) An exception to this rule is that a surety or a co-principal debtor may, against the creditor, rely on the defence that the debt of the principal debtor has been discharged by set-off. Miller v Muller 1965 (4) SA 458 (C) Standard Bank of SA Ltd v SA Fire Equipment (Pty) Ltd 1984 (2) SA 693 (C) Motani Lounge (Pty) Ltd v Standard Bank of SA Ltd 1995 (2) SA 498 (W) PRECEDENTS Claim – of set-off 1. Defendant admits that he was indebted to plaintiff in the amount claimed and on the grounds stated. 2. Defendant pleads, however, that his indebtedness towards plaintiff was extinguished by set-off by virtue of the following facts: (a)
on [date] at [place], defendant sold, in terms of an oral agreement, a table to plaintiff in the sum of [amount];
(b) defendant duly delivered the said table on [date] at [place]; (c) plaintiff has not paid the purchase price which was, at all relevant times, fully due and legally payable to defendant. WHEREFORE defendant prays that plaintiff’s claim be dismissed with costs. Pleadings/Amlers Precedents of Pleadings/S/Setting Aside of Judgments Setting Aside of Judgments See : JUDGMENTS: SETTING ASIDE Pleadings/Amlers Precedents of Pleadings/S/Simulated Transactions Simulated Transactions
Related subjects: FRAUD INSOLVENCY Definition: A simulated transaction is, in essence, a dishonest transaction, in that the parties to the transaction do not intend it to have amongst them the legal effect it purports to convey. The purpose of the disguise is to deceive by concealing the real transaction. Skjelbreds Rederi AS v Hartless (Pty) Ltd 1982 (2) SA 710 (A) at 733 Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A) at 611 [Page 314] Erf 3183/1 Ladysmith (Pty) Ltd v Commissioner for Inland Revenue 1996 (3) SA 942 (A) Registrateur van Aandelebeurse v Aldum h/a Onecor Group 2002 (2) SA 767 (SCA) Onus: Proof of a transaction is prima facie evidence that the transaction was not simulated. If a party alleges that a transaction is simulated, that party must allege simulation and rebut the prima facie inference. However, the ultimate onus rests on the party alleging the contract’s non-simulated nature to prove the parties’ real intention and that the transaction is not simulated. In the end, the court must be satisfied that there is a real intention, definitely ascertainable, which differs from the simulated transaction. Zandberg v Van Zyl 1910 AD 302 at 314 Cf EBN Trading (Pty) Ltd v Commissioner for Customs and Excise [2001] 3 All SA 117 (A); 2001 (2) SA 1210 (SCA) PRECEDENTS Claim – alleging a simulated transaction Defendant admits signing the purported agreement of sale as alleged by plaintiff.
1.
2. Defendant denies, however, that the parties intended to enter into an agreement of sale and alleges that it was the parties’ intention to enter into an agreement of pledge. 3. Defendant alleges that he borrowed the sum of [amount] from plaintiff on [date] at [place] and, since he was unable to repay plaintiff and in order to protect from defendant’s other creditors the article allegedly sold, the purported sale agreement was entered into. 4. Defendant, therefore, pleads that the true agreement was one of pledge and that the sale was a simulated agreement. Pleadings/Amlers Precedents of Pleadings/S/Special Pleas Special Pleas Definition: A special plea is one which, apart from the merits, raises some special defence which is not apparent from the declaration and which either destroys or postpones the operation of the cause of action. Brown v Vlok 1925 AD 56 Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) at 760 If the defence is apparent from the declaration, it should be raised by way of exception. A special plea may be in the nature of a plea in abatement or a dilatory plea, but its nature need not be stated in either the heading of the plea or in its body. Van der Westhuizen v Smit NO 1954 (3) SA 427 (SWA) at 430 The onus rests on the defendant to prove the facts underlying the special plea. Masuku v Mdlalose [1997] 3 All SA 339 (A); 1998 (1) SA 1 (SCA) Magistrates’ courts: Rule 19(4) of the Magistrates’ Courts Rules requires that a defendant admit, deny, or confess and avoid all the material facts alleged in the particulars of claim and that he or she state clearly and concisely the nature of her or his defence and all the material facts on which it is based. No separate provision is made for special pleas. A special plea must, therefore, [Page 315] form part of the plea. It may be contained in a separate document on a separate page and it may be entitled “Special Plea” but the defendant must plead to the whole case. Pretorius v Fourie NO 1962 (2) SA 280 (O) Du Plessis v Doubells Transport (Edms) Bpk 1979 (1) SA 1046 (O) Any party may then set the special plea down for a separate hearing but is not obliged to do so. Magistrates’ Courts rule 19(12) High Court: Uniform rule 22(2) requires that a defendant admit or deny, or confess and avoid all the material facts alleged in the combined summons or the declaration, or state which of the facts are not admitted, and to what extent, and that he or she state clearly and concisely all material facts on which he or she relies. It would, therefore, seem that a defendant must plead to the merits when filing a special plea and that a defendant cannot plead specially and, if that plea is unsuccessful, at a later stage plead to the merits. David Beckett Construction (Pty) Ltd v Bristow 1987 (3) SA 275 (W)
This may cause difficulties in relation to pleading lis pendens, res iudicata and an arbitration agreement. It is suggested that it is impractical to apply the rule literally. Meyerson v Health Beverages (Pty) Ltd 1989 (4) SA 667 (C) Cf Levy v Levy 1991 (3) SA 614 (A) As a matter of practice, special pleas are normally embodied in a document separate from the plea, but there is no objection to pleading the special defence in the course of the plea. Relief: Absolution from the instance cannot be granted on a special plea. If unsuccessful, it is dismissed; if successful, the action is either dismissed or stayed, depending on the nature of the special plea. Peacock v Marley 1934 AD 1 For an unusual order, see Comcorp (Pty) Ltd v Quipmor CC 1998 (2) SA 599 (D) Precedents for special pleas are to be found under the relevant headings – for example, ARBITRATION and LIS PENDENS. Pleadings/Amlers Precedents of Pleadings/S/Specific Performance Specific Performance Related subjects: CONTRACT EXCEPTIO NON ADIMPLETI CONTRACTUS Jurisdiction: Magistrates’ courts have no jurisdiction in any matter in which specific performance is sought without an alternative claim for the payment of damages. There are three exceptions: (a) (b) (c)
the rendering of an account in respect of which the claim does not exceed R100 000; the delivery or transfer of property, whether movable or immovable, not exceeding R100 000 in value; and the delivery or transfer of property, whether movable or immovable, exceeding R100 000 in value where the consent of the parties has been obtained.
[Page 316] In all other cases, a party may not claim specific performance unless there is a claim in the alternative for damages for an amount within the jurisdiction of the court. Magistrates’ Courts Act 32 of 1944 s 46(2)(c) Weepner v Kriel 1977 (4) SA 212 (C) Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C) Morettino v Italian Design Experience CC [2000] 4 All SA 158 (W) Onus: A party wishing to claim specific performance in terms of a contract must: (a) allege and prove the terms of the contract; (b) allege and prove compliance with any antecedent or reciprocal obligations or must tender to perform them; SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3) SA 541 (D) RM Van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C) (c) allege non-performance by the defendant; (d) claim specific performance. Discretion: Although a court will, as far as possible, give effect to a plaintiff’s choice to claim specific performance, it has the discretion in a fitting case to refuse such relief and to leave it to the plaintiff to claim damages. This discretion must be exercised judicially and is not circumscribed by rules. Each case must be judged in the light of its own circumstances. The discretion is exercised with reference to the facts as they exist when performance is claimed and not as they were when the contract was concluded. Haynes v King Williams Town Municipality 1951 (2) SA 371 (A) Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T) Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 697 (C) It is for the defendant to allege and prove facts on which the court can and must exercise its discretion in her or his favour. Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A)
Alternative relief: The plaintiff may (sometimes), in the alternative, claim the objective value of the defendant’s performance in lieu of specific performance. Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D) The plaintiff may claim in the alternative: (a) an order directing the sheriff to perform all acts necessary on behalf of the defendant. This relief is usually sought in cases relating to the transfer of immovable property; or (b)
cancellation and damages on the assumption that the court may refuse specific performance or on the further assumption that the defendant may fail to comply with the court order.
The plaintiff is not obliged to follow this course and may institute a separate action once the defendant does not comply with the court order. Specific performance as an alternative: A plaintiff who has cancelled a contract but who is uncertain as to the validity of the cancellation may, as an alternative, and on a finding that the contract was not properly cancelled, claim specific performance. Jardin v Agrela 1952 (1) SA 256 (T) [Page 317] Election: An election by the plaintiff not to cancel or to cancel is final and the plaintiff may not claim relief inconsistent with this election. It is for the defendant to allege and prove an election. See : WAIVERS PRECEDENTS Claim – for specific performance 1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff purchased from the defendant a house situate at [address] for a purchase price of [amount] payable against transfer. A copy of the agreement is attached hereto and marked “A”. 2. Plaintiff has duly provided a guarantee for the payment of the purchase price as required by clause [specify] of Annexure “A”. Despite demand, defendant refuses to pass transfer to plaintiff.
3.
WHEREFORE plaintiff claims: (a) An order that defendant take all the necessary steps to pass transfer of the property to plaintiff. (b) An order that, if defendant fails within 14 days of the court’s order to take the necessary steps, the sheriff be authorised to take such steps on defendant’s behalf. Pleadings/Amlers Precedents of Pleadings/S/Spoliation Spoliation General: Relief by way of the mandament van spolie is seldom claimed in action proceedings, because of the urgency of these matter. A spoliation order is a final order and, if the factual dispute may be such that it cannot be resolved in application proceedings, action proceedings, depending on the circumstances, may be indicated. Reck v Mills 1990 (1) SA 751 (A) Jurisdiction: Magistrates’ courts have the jurisdiction to grant spoliation orders, provided the value of the spoliated goods does not exceed the value limits imposed by the Act. In the case of possession of immovables, it is not the market value that determines whether the matter falls within the jurisdiction of the court but the value of the possession. In the case of movables, the yardstick is the market value of the thing. Magistrates’ Courts Act 32 of 1944 s 30(1) Possession: The plaintiff must allege and prove that he or she was in peaceful and undisturbed possession of the property. Kgosana v Otto 1991 (2) SA 113 (W) Possession is not possession in the strict juridical sense. It suffices if the holding was with the intention of securing some benefit for the plaintiff. The causa of the plaintiff’s possession is irrelevant and it is also irrelevant whether the defendant has a stronger right or claim to possession. Actual physical possession, and not the right to possession, is protected. Yeko v Qana 1973 (4) SA 735 (A)
Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director, Dept of Education & Culture Services 1996 (4) SA 231 (C) [Page 318] Dispossession: The plaintiff must allege and prove an unlawful deprivation of possession by the defendant. “Unlawful” in this context means a dispossession without the plaintiff’s consent or without due legal process. Sillo v Naude 1929 AD 21 Ntai v Vereeniging Town Council 1953 (4) SA 579 (A) George Municipality v Vena 1989 (2) SA 263 (A) Defences: In view of the fact that the merits of the plaintiff’s possession and the defendant’s right to possession are not justiciable in proceedings for a mandament van spolie, there are no defences available that do not amount to a denial of the plaintiff’s allegations. Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W) Engling v Bosielo 1994 (2) SA 388 (B) The only exception, subject to the Constitution, is that of a statutory right to dispossess, in which event the person who invokes the defence must establish that dispossession occurred strictly within the limits of the statute. Minister of Finance v Ramos 1998 (4) SA 1096 (C) Counter-spoliation: See Abbott v Von Theleman 1997 (2) SA 848 (C) Bosman NO v Tworeck 2000 (3) SA 590 (C) Relief: The relief claimed with the mandament is restoration of possession ante omnia. Viljoen v Viljoen [2002] 2 All SA 143 (T) Where the property is destroyed, a mandament van spolie is not an appropriate remedy. Rikhotso v Northcliff Ceramics (Pty) Ltd [1996] 4 All SA 524 (W); 1997 (1) SA 526 (W) PRECEDENTS Claim – for possession The plaintiff was, on [date], in peaceful and undisturbed possession of the farm known as [name].
1.
2. On [date], defendant unlawfully deprived plaintiff of his possession by placing chains and locks on the gates leading to the said farm. WHEREFORE plaintiff claims an order that: (a) (b)
plaintiff’s possession of the farm known as [name] be restored; and defendant remove all chains and locks on the gates leading to the farm.
Pleadings/Amlers Precedents of Pleadings/S/State Liability State Liability Related subject:
CITATIONS PRESCRIPTION VICARIOUS LIABILITY
Contractual liability: Any claim which arises out of a contract lawfully entered into on behalf of the State can be adjudicated by any competent court. State Liability Act 20 of 1957 s 1 Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (Tk) [Page 319]
Government of the Province of the Eastern Cape v Frontier Safaris (Pty) Ltd [1997] 4 All SA 500 (A); 1998 (2) SA 19 (SCA) Kilian v Gauteng Provincial Legislature [1999] 1 All SA 84 (T) Hlobo v Multilateral Motor Vehicle Accidents Fund [2001] 1 All SA 322 (A); 2001 (2) SA 59 (SCA)
Delictual liability: Any competent court can also adjudicate a claim arising out of any wrong committed by any servant of the State acting in her or his capacity and in the scope of her or his authority. State Liability Act 20 of 1957 s 1 Minister van Polisie v Gamble 1979 (4) SA 759 (A) East London Western Districts Farmers’ Association v Minister of Education & Development Aid 1989 (2) SA 63 (A)
Although there is a distinction between a servant acting within the scope of her or his authority and a servant acting within the scope of her or his employment, both phrases have come to be treated as being synonymous for the purposes of determing the liability of the State. Mhlongo NO v Minister of Police 1978 (2) SA 551 (A) at 567 Masuku v Mdlalose [1997] 3 All SA 339 (A); 1998 (1) SA 1 (SCA) Citation: In any proceedings instituted against the State or a provincial government, the minister or the member of the executive council responsible for the department concerned should be cited as nominal defendant or respondent. State Liability Act 20 of 1957 s 2 Jayiya v MEC for Welfare, EC Government [2003] 2 All SA 223 (SCA) para 5 It is permissible to cite the Government of the Republic of South Africa as a party, and the President may be cited in respect of acts done by her or him in her or his official capacity, unless the act is one done pursuant to the advice of the cabinet. In this latter case, the responsible minister must be cited. See : CITATIONS Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002: This Act regulates the prescription and harmonises the periods of prescription of debts for which organs of state are liable and makes provision for notice requirements in connection with the institution of legal proceedings against certain organs of state in respect of the recovery of debts, whatever their nature. Organ of state: “Organ of state” means any national or provincial department; a municipality; any functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial constitution; the South African Maritime Safety Authority; the South African National Roads Agency Limited; and any person for whose debt one of these organs of state is liable. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 1(1) Retrospectivity: The Act does not apply to any debt which was extinguished by prescription before the Act’s date of commencement (28 November 2002). Any proceedings relating to a debt which was not extinguished by prescription before that date and in respect of which any legal proceedings were instituted before the Act’s commencement, must be continued and concluded as if the Act had not been passed. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 1(2) [Page 320] Period of prescription: Chapter III of the Prescription Act applies to these debts. This means that there is no distinction between these debts and other debts with regard to when prescription begins to run, the period of prescription, delay in completion and interruption of prescription. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 2 See : PRESCRIPTION Notice of intended legal proceedings: No legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question written notice of the intention to institute the legal proceedings in question. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 3(1) Such notice must be served on the organ of state within six months of the date on which the debt became due and must briefly set out: (a) (b)
the facts giving rise to the debt; and such particulars of such debt as are within the knowledge of the creditor. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 3(2)
Debt due: A debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt. However, a creditor must be regarded as having acquired such knowledge as soon as that knowledge could have been acquired by the exercise of reasonable care, unless the organ of state wilfully prevented the creditor from acquiring such knowledge. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 3(3)(a) Condonation: If an organ of state relies on a creditor’s failure to serve the required notice, the creditor may apply to a court having jurisdiction for condonation of such failure. The court may grant the application if it is satisfied that: (a) (b) (c)
the debt has not been extinguished by prescription; good cause exists for the creditor’s failure to serve such notice; and the organ of state is not unreasonably prejudiced by the failure. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 3(4)
PRECEDENTS Claim – absence of the requisite notice
Before pleading to the merits of the plaintiff’s claim, the defendant pleads as follows: 1. In terms of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, the plaintiff was obliged to serve the defendant (an organ of state, as defined) with written notice of the alleged collision referred to in the particulars of claim, of the facts on which defendant’s alleged liability arose and of the particulars thereof within six months of its occurrence. [Page 321] 2. Plaintiff has failed to serve any such written notice and, in the premises, no action can be founded by plaintiff based on the alleged negligence of the defendant. WHEREFORE defendant prays that plaintiff’s claims be dismissed with costs. Pleadings/Amlers Precedents of Pleadings/S/Stated Cases Stated Cases The parties to a dispute may, after proceedings have been instituted, agree on a written statement of facts in the form of a special case for the adjudication of the court. The statement must set forth: (a) (b) (c)
the facts agreed upon, the questions of law in dispute between the parties; and the parties’ contentions regarding those questions.
This statement must be divided into consecutively numbered paragraphs, and copies of all documents necessary to enable the court to decide the questions must be annexed to it. This rule does not have the effect of changing or disposing of the incidence of proof. The court may draw inferences from these facts and documents and base its decision on the questions of law in dispute on the facts and inferences. As part of its order, the court may give such directions as are necessary for the final disposal of the outstanding issues between the parties. Uniform rule 33 PRECEDENTS 1. It is common cause between the parties that on or about 10 June 1977 plaintiff was detained in terms of section 6 Repealed Act Act 83 of 1967 has been repealed by s 33 of Act 138 of 1991 of the Terrorism Act 83 of 1967 Repealed Act Act 83 of 1967 has been repealed by s 33 of Act 138 of 1991 by members of the South African Police and held in such detention until 18 July 1978. 2. It is alleged by plaintiff that: (a) on 13 June 1977, whilst so detained, plaintiff was assaulted by members of the South African Police; (b) on 27 October 1977, whilst still thus detained, plaintiff was again assaulted by members of the South African Police; (c)
at all material times referred to, the said members of the South African Police were employed by defendant and were acting within the course and scope of their employment;
(d) he suffered injuries as a result of the alleged assault and consequently suffered damages as a result of such assaults and consequent injuries. Plaintiff alleges that he has given defendant due notice in terms of section 32
3.
Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 of Act 7 of 1958 Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 , as amended. 4. Accordingly plaintiff claims damages from defendant. 5. It is common cause that plaintiff purportedly complied with section 32 Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 of Act 7 of 1958 Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 on 23 November 1978 by way of a letter. A copy of which is annexed hereto, marked “A”. 6. It is also common cause that the summons in this action was issued on 15 January 1979. 7. In a special plea defendant pleaded that plaintiff’s action is barred by virtue of the provisions of section 32 Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 of Act 7 of 1958 Repealed Act Act 7 of 1958 has been repealed by s 12 of RP 5 of 1995 , as amended. 8. In addition to defendant’s special plea, defendant pleaded over on the merits but the honourable court is not asked to adjudicate on such plea at this stage. [Page 322] 9. To defendant’s said special plea, plaintiff replied inter alia by averring the following: (a) that on or about 10 June 1977, plaintiff was detained in terms of section 6 Repealed Act Act 83 of 1967 has been repealed by s 33 of Act 138 of 1991 of the Terrorism Act 83 of 1967 Repealed Act Act 83 of 1967 has been repealed by s 33 of Act 138 of 1991 by members of the South African Police and that plaintiff was held in detention in terms of the said section until 28 July 1978; (b)
by reason of his detention, plaintiff was unable to obtain legal advice or to institute the action whilst so detained;
(c) accordingly plaintiff was prevented by superior force, namely the fact of his detention or, alternatively, the provisions of a law, namely the said section 6 Repealed Act Act 83 of 1967 has been repealed by s 33 of Act 138 of 1991 of Act 83 of 1967
Repealed Act Act 83 of 1967 has been repealed by s 33 of Act 138 of 1991 , from taking steps including the giving of notice to institute his action whilst so detained. 10. In the premises, the honourable court is requested to adjudicate on the question whether defendant’s special plea is good in law or not and to make such an order as to costs as seems just under the circumstances. [Taken from Montsisi v Minister van Polisie 1984 (1) SA 619 (A). The statutes referred to have been repealed.] Pleadings/Amlers Precedents of Pleadings/S/Statutory Provisions Statutory Provisions If a party wishes to rely on a statutory provision as part of a cause of action or defence, that party must plead the provision relied upon. Yannakou v Apollo Club 1974 (1) SA 614 (A) Bekker v Oos-Vrystaat Kaap Koöperasie Bpk [2000] 3 All SA 301 (A) However, it is not necessary in a pleading, even where the pleader relies on a particular statute or section of a statute, to refer in terms to that statute or section, provided that the case is formulated clearly. Put differently, it is sufficient if the facts from which the conclusion can be drawn are pleaded that the provisions of the statute apply. Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A); 1997 (1) SA 710 (A) A party relying in the relevant pleading on one statutory provision may not, without amendment, thereafter rely on another provision. Terblanche NO v Baxtrans CC 1998 (3) SA 912 (C) Pleadings/Amlers Precedents of Pleadings/S/Statutory Authority as a Defence to a Claim for Damages Statutory Authority as a Defence to a Claim for Damages Related subjects: DAMAGES LEX AQUILIA NEGLIGENCE General: An act which, although harmful to another person, is authorised by a statute is justified and, consequently, lawful. Union Government v Sykes 1913 AD 156 at 169 Where a statute interferes with common-law rights, loss resulting from such interference will be compensated only if it can be proved that the act authorised by the legislature was performed negligently, the implication being that reasonably practicable precautions should be taken to minimise the extent of the interference. Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 Rhodes Fruit Farms Ltd v Cape Town City Council 1968 (3) SA 514 (C) at 518 East London Western Districts Farmers’ Association v Minister of Education & Development Aid 1989 (2) SA 63 (A) [Page 323] Where a statutory exemption is pleaded, the particular section relied on need not be specified, provided the case is formulated clearly. Ketteringham v City of Cape Town 1934 AD 80 at 90 Botha v Guardian Assurance Co Ltd 1949 (2) SA 223 (G) at 227 See : STATUTORY PROVISIONS Onus: The defendant bears the onus of pleading and proving that interference was impossible to avoid and was the inevitable result of the defendant’s exercising of its statutory powers, and, hence, that the interference was justified. It is then incumbent on the plaintiff to allege (in the replication) and prove that the statutory powers were exceeded by unreasonable conduct, usually referred to as negligence. Unreasonable conduct may be of two kinds, namely a failure to select reasonably practicable measures for the exercise of the right or fault in the implementation of the measures chosen. In practice, it is often impossible to distinguish between these two kinds of conduct and it is debatable whether the second is not part and parcel of the first. Moller v SA Railways and Harbours 1969 (3) SA 374 (N) Diepsloot Residents’ and Landowners’ Association v Administrator Transvaal 1994 (3) SA 336 (A) at 345–347 Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 24–27 Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA 455 (A); 1997 (1) SA 157 (A) at 164–166 PRECEDENTS
Claim – relying on statutory authority 1. Defendant admits that it constructed a road on land immediately adjoining that of plaintiff and that a certain amount of waste material fell onto plaintiff’s farm. 2. Defendant pleads that, in terms of [specify relevant legislation], it was empowered to build a road on the said land. 3. Defendant pleads that it was inevitable and unavoidable in the building of the road that the waste material referred to above should land on plaintiff’s farm. 4. In the premises, defendant denies that the spillage of waste material as aforesaid was unlawful. Replication – relying on authority having been exceeded 1. Plaintiff admits that defendant was authorised by [ordinance] to build a road on the land adjoining plaintiff’s farm. 2. Plaintiff denies that it was inevitable that waste material should fall onto plaintiff’s land. 3. Plaintiff pleads that defendant exceeded its statutory authority and was negligent in one or more of the following respects in permitting the waste material to fall onto plaintiff’s land, namely: [detail] WHEREFORE the plaintiff persists in his claim. Pleadings/Amlers Precedents of Pleadings/S/Statutory Duty or Authority: Breach Statutory Duty or Authority: Breach General: Breach of a statutory duty may, depending on the circumstances and the interpretation of the relevant statute: (a) provide evidence of negligence in an action based on negligence; (b) create a right of action for damages irrespective of negligence; [Page 324] (c) (d)
create a right of action for damages resulting from negligent conduct; or be the element of wrongfulness necessary to found an actio legis Aquiliae. Callinicos v Burman 1963 (1) SA 489 (A) Da Silva v Coutinho 1971 (3) SA 123 (A) Simon’s Town Municipality v Dews 1993 (1) SA 191 (A) at 196
Under the present heading, we are concerned with (b) and (c). The pleadings ought to state whether the plaintiff is relying on a breach of statutory duty per se as distinct from a negligent breach of that duty. A distinction must be drawn between a mere breach of a statutory duty and a negligent breach of such duty. The former can occur without negligence – as, for instance, when, before acting, the person charged with the breach of duty took the best available advice. An averment in a pleading that the defendant breached a stated statutory duty “wrongfully, unlawfully and negligently” is, in the absence of any other indication in the pleading, not the best method of indicating that reliance is being placed on negligence as distinct from the mere breach itself of the stated statutory authority. Callinicos v Burman 1963 (1) SA 489 (A) Essentials: A party who relies on a breach of a statutory duty as a cause of action must satisfy the court that: (a) the statute, properly interpreted, gives a right of action; (b) the plaintiff is a person for whose benefit the duty was imposed; (c) the damage suffered is of the kind contemplated by the statute;
(d) the defendant’s conduct constituted a breach of the statutory duty relied upon; and (e) the breach is causally linked to the damage. Da Silva v Coutinho 1971 (3) SA 123 (A) at 140 Cf Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd [1997] 3 All SA 433 (W); 1997 (4) SA 578 (W) Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA) Items (a) and (b) are legal issues which depend on the interpretation of the statute involved. Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 Patz v Greene & Co 1907 TS 427 Concerning pleading a breach of a duty of care, see Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 24–28 Negligence (fault): As indicated, negligence may or may not, depending on the terms of the statute, be an essential element of the claim. Negligence means, in this context, the failure to exercise due and reasonable care in the performance of the duty imposed and not negligence in relation to the loss suffered. It is not necessary to foresee the loss. Da Silva v Coutinho 1971 (3) SA 123 (A) at 140 Causation: The breach need not be the sole cause of the damage, provided it contributes materially thereto. Da Silva v Coutinho 1971 (3) SA 123 (A) at 141 PRECEDENTS Claim – based on breach of a statutory duty 1. Defendant is the trustee of the insolvent estate of [name]. [Page 325] 2. The said insolvent was, at all material times, indebted to plaintiff in the sum of [amount] for rent in respect of the premises situate at [address] leased by plaintiff to the insolvent in terms of a written agreement [detail and annex copy]. 3. On [date], plaintiff filed with defendant a claim, which included a preferent claim for rent in respect of the premises in the sum of [amount]. 4. The claim was duly admitted by defendant. 5. The proceeds of the property subject to plaintiff’s legal hypothec for rent were sufficient to pay the preferent claim. 6. Upon admitting plaintiff’s claim, it became defendant’s duty to apply the proceeds of the property subject to plaintiff’s legal hypothec in satisfying the claim for rent amounting to [amount] in terms of the provisions of section 95 of Insolvency Act 24 of 1936. 7. In spite of the foregoing, defendant wrongfully, negligently and in breach of his legal duty neglected and failed to apply the proceeds for the payment of plaintiff’s claim but treated plaintiff’s claim as a concurrent claim and tendered her an amount of only [amount] in respect of her preferent claim. 8. Defendant filed a final account in the estate which was confirmed on [date]. Thereafter, defendant distributed the difference to creditors, leaving only the sum of [amount] available for payment of plaintiff’s claim in terms of the account. 9. Plaintiff alleges that, by reason of defendant’s negligent breach of duty, she sustained damages amounting to [Rx] for which defendant is, in his personal capacity, liable to her. 10. Defendant was negligent in that he: (a) failed to have regard to the provisions of section 95 of Insolvency Act 24 of 1936; (b) failed to peruse plaintiff’s claim properly;
(c) failed to act as a reasonable trustee would have acted in the circumstances. [Based on Callinicos v Burman 1963 (1) SA 489 (A).] [For a further precedent, see Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA 283 (A).] Pleadings/Amlers Precedents of Pleadings/S/Stockbrokers Stockbrokers Related subject: AGENCY General: A stockbroker is any natural person who is a member, or who is an officer or employee of a member, and who is authorised and qualified under the rules of the stock exchange concerned to be a stockbroker. A member is any person who is qualified in terms of those rules to carry on the business of buying and selling listed securities and who has been admitted as a member of a stock exchange. The Stock Exchanges Control Act 1 of 1985 restricts the power to carry on the business of a stock exchange and to carry on the business of buying and selling listed securities. Stock Exchanges Control Act 1 of 1985 s 1 and s 3(1) See, generally, Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A); 1997 (1) SA 710 (A) (There are exceptions to this generalisation but they are not important for present purposes.) Purchase of shares: The mandate of a stockbroking member who is instructed to purchase shares on behalf of a client requires that member to buy such shares at the market price at the time the order is to be executed and, thereafter, to register the shares in the client’s name. Jeffery v Pollak & Freemantle 1938 AD 1 [Page 326] The member does not act as the agent of the client since no contract is effected between the buyer or seller of the shares and the client. By purchasing the shares in terms of a mandate, the member will, on receipt of those shares, become their owner and is not under any obligation to deliver to the client the identical scrip received from the seller but only an equivalent scrip. The shares become the client’s property when the member allocates them to the client by clearly identifying the scrip in the name of the client and by keeping the scrip apart from all other scrips. R v Klisser & Rosenberg 1949 (3) SA 807 (W) at 817 S v McPherson 1972 (2) SA 348 (E) at 363 Claim for payment: A member must allege and prove: (a) that he or she is permitted to deal with scrips; Mathews v Rabinowitz 1948 (2) SA 876 (W) (b) (c)
the terms of the mandate; performance of the mandate.
Subject to exceptions, a statutory duty rests on the client to pay the purchase price of the securities in cash against an offer of delivery of the securities, or within seven business days, whichever is the shorter period. Stock Exchanges Control Act 1 of 1985 s 22 If the client fails to pay within the prescribed period, the broker must sell: (a) (b)
the securities for the account of the purchaser; and for the purchaser’s account so much of any other securities held by or to be delivered to the stockbroker in respect of any transaction in connection with securities previously entered into on behalf of the purchaser as may be necessary to realise an amount equal to the amount still owing after the sale of the relevant securities in respect of the securities purchased on behalf of the purchaser.
Sale of securities: The seller of securities is obliged to deliver them to the member within seven days of the sale. Should the seller fail to do so, the stockbroker is obliged to buy the securities for the account of the seller. Stock Exchanges Control Act 1 of 1985 s 25 Repudiation of purchase: A purchaser of securities may repudiate the transaction if the stockbroker fails to deliver the securities, provided that a written demand for delivery within 14 business days is made of the stockbroker. Stock Exchanges Control Act 1 of 1985 s 29 PRECEDENTS Claim – pursuant to a purchase of shares
1. Plaintiff is a member of the Johannesburg Stock Exchange. 2. On [date], the defendant instructed the plaintiff to purchase at the ruling price, on his behalf, the following shares, namely: [detail]. 3. On [date], plaintiff, acting in accordance with his instructions, purchased the following shares on defendant’s behalf at the prices appearing alongside each share, being the ruling price for that share on that day, namely: Share [detail] Price [detail]. [Page 327] 4. On [date], plaintiff duly informed the defendant of the purchase of the shares and offered delivery thereof to the defendant. 5. In the premises, defendant became obliged in terms of section 22(1) of Act 1 of 1985 to pay for the shares on or before [date] and he has failed to do so. 6. In terms of section 22(2), plaintiff sold the said shares at the market price reigning on [date] and obtained the following prices namely: Share [detail] Price [detail]. 7. In the premises, the plaintiff received [amount] less for the shares than he had paid for them and has suffered damages in that amount. Pleadings/Amlers Precedents of Pleadings/S/Suretyship Suretyship Related subject:
CONTRACT
Claim against surety: A plaintiff who wishes to claim on a deed of suretyship must comply with the ordinary rules relating to the pleading of contracts. The onus rests on the plaintiff to allege and prove the following: (a)
A valid contract of suretyship. Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) at 291 This involves compliance with the provisions of the General Law Amendment Act 50 of 1956 – namely, that the terms of the contract are embodied in a written document signed by or on behalf of the surety. The document must set out at least the identity of the creditor, those of the surety and the principal debtor. In addition, the nature and amount of the principal debt must be capable of ascertainment by reference to the provisions of the written document, supplemented, if necessary, by admissible extrinsic evidence. Sapirstein v Anglo African Shipping Co (SA) Ltd 1978 (4) SA 1 (A) Du Toit v Barclays Nasionale Bank Bpk 1985 (1) SA 563 (A) The terms of the deed of suretyship may be supplemented by means of the incorporation of another document, thereby complying with the statutory requirement. Industrial Development Corporation of SA (Pty) Ltd v Silver [2002] 4 All SA 316 (SCA); 2003 (1) SA 365 (SCA) The agreement may be rectified if otherwise valid prima facie. Intercontinental Exports (Pty) Ltd v Fowles [1999] 2 All SA 304 (A); 1999 (2) SA 1045 (SCA) See : RECTIFICATION
(b) That the causa debiti is one in respect of which the defendant undertook liability. If the surety renounced the exceptio non causa debiti, the onus of proving the non-existence of a causa rests on the defendant, but the plaintiff must still allege the causa. Dowson & Dobson Industrial Ltd v Van der Werf 1981 (4) SA 417 (C) at 431 The surety’s liability cannot exceed that of the principal debtor. MAN Truck & Bus (SA) (Pty) Ltd v Singh (2) 1976 (4) SA 266 (N) (c)
The indebtedness of the principal debtor – that is, the amount and that it is due. Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A) Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO 2002 (3) SA 752 (SCA)
Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) [Page 328] A surety’s liability arises from the time the principal debtor is in default, provided an enforceable claim is proved; and the debt of a surety, who is also a co-principal debtor, becomes enforceable at the same time as the principal debt. Millman NO v Masterbond Participation Bond Trust Managers (Pty) Ltd (under curatorship) [1997] 1 All SA 408 (C); 1997 (1) SA 113 (C) An admission by or judgment against the principal debtor is not binding against the surety. The creditor is not obliged to tender cession of action and security against payment of the debt by the surety, although the creditor must effect such cession if so requested by the surety. Kroon v Enschede 1909 TS 374 Defences relating to the principal debt: The surety may, in defence to the claim, rely on any defence that is or was available to the principal debtor, provided that the defence is one in rem (ie, must arise upon the obligation) and not one in personam (some personal privilege granted to the debtor). Ideal Finance Corp v Coetzer 1970 (3) SA 1 (A) Muller v Botswana Development [2002] 3 All SA 663 (SCA); 2003 (1) SA 651 (SCA) A typical example of a defence in rem is the extinction of the principal debt by prescription. Jans v Nedcor Bank Ltd [2003] 2 All SA 11 (SCA) The reason is that the obligation of a surety is an accessory obligation and its validity depends on the existence of a valid principal obligation. Defences relating to the deed of suretyship: (a)
Non-compliance with formalities: If the surety pleads non-compliance with the statutory provisions relating to formalities, the question is one of law, if non-compliance appears ex facie the document. Even if the alleged non-compliance does not appear ex facie the document, the onus will still be on the creditor to prove proper compliance. Stewart & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd 1981 (1) SA 305 (W) A typical example is where the document signed by the surety and accepted by the creditor was incomplete when delivered, having blank portions relating to essential terms. Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A) Pizani v First Consolidated Holdings (Pty) Ltd 1979 (1) SA 69 (A) Jurgens v Volkskas Bank Ltd 1993 (1) SA 214 (A)
(b) Joint suretyship intended: Where a joint suretyship was intended, the contract does not come into being until all the proposed sureties have signed the document. Nelson v Hodgetts Timbers (East London) (Pty) Ltd 1973 (3) SA 37 (A) Industrial Development Corp of SA Ltd v See Bee Holdings (Pty) Ltd 1978 (4) SA 136 (C) The intention has to be deduced from the terms of the document signed by the defendant. (c) Termination: Unless prohibited by the terms of the agreement, the surety may, by due notice, terminate her or his liability in respect of future transactions. Kalil v Standard Bank of SA Ltd 1967 (4) SA 550 (A) Morgan v Brittan Boustred Ltd 1992 (2) SA 775 (A) Tsaperas v Boland Bank Ltd [1996] 4 All SA 312 (A); 1996 (1) SA 719 (A) The onus is on the defendant to prove termination. [Page 329] (d) Variation of the suretyship: The defendant may rely on a written variation of the deed of suretyship duly signed and accepted by the creditor. Oceanair (Natal) (Pty) Ltd v Sher 1980 (1) SA 317 (D) Ferreira v SAPDC (Trading) Ltd 1983 (1) SA 235 (A) The deed may be cancelled orally, but not so varied. Visser v Theodore Sassen & Son (Pty) Ltd 1982 (2) SA 320 (C) (e)
(f)
Excussion and division: A surety may, by way of a dilatory defence, rely on the benefits of excussion and division. This must be specifically pleaded and is not available if renounced. Someone who signs as surety and co-principal debtor renounces these benefits. Gerber v Wolson 1955 (1) SA 158 (A) Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A)
Release: If the creditor acts in conflict with the agreement to the prejudice of the surety, the surety may be released. ABSA Bank Ltd v Davidson [2000] 1 All SA 355 (SCA); 2000 (1) SA 1117 (SCA) Duburoro Investments (Pty) Ltd v Bock [2002] 3 All SA 571 (W) It is for the surety to allege and prove this defence. Claim by surety against principal debtor: A surety who discharged the main debt in full has a claim against the principal debtor. The claim may be based on alternative bases: (a)
(b)
A ceded action: A surety who pays the whole of the principal debt is entitled to obtain a cession of action and securities from the creditor. He or she may then proceed against the debtor on the ceded action, in which event he or she will have to allege and prove the cession and the creditor’s case against the debtor. The right to cession is a benefit which the surety may claim against the creditor. It is a dilatory plea requiring the creditor to effect this cession pari passu with payment in full of the principal debt. African Guarantee & Indemnity Co Ltd v Thorpe 1933 AD at 330 Barlows Tractor Co (Pty) Ltd v Townsend [1996] 2 All SA 105 (A); 1996 (2) SA 869 (A) A right of recourse: The surety has a right of recourse against the principal debtor, regardless of whether the suretyship was entered into at the behest of the debtor. Rossouw & Rossouw v Hodgson 1925 AD 97
If the surety stood surety with the consent or at the request of the principal debtor, the surety’s cause of action against the principal debtor is one based on a contract of mandate, either express or implied. The plaintiff must then allege the contract and the defendant’s liability thereunder. If he or she stood surety without the defendant’s consent, the principal debtor’s liability will be on the basis of negotiorum gestio. These two causes of action can be claimed in the alternative. Turkstra v Massyn 1959 (1) SA 40 (T) See : NEGOTIORUM GESTIO The surety must first discharge the debt in toto before proceeding against the principal debtor. Proksch v Die Meester 1969 (4) SA 567 (A) ABSA Bank Ltd v Scharrighuisen [2000] 1 All SA 318 (C); 2000 (2) SA 998 (C) [Page 330] Claim by surety against co-surety: The surety who has paid the principal debt in full has a claim against the cosureties for their share of the debt. It does not matter whether the sureties bound themselves in the same document. A surety who so wishes to recover must allege and prove: (a)
full payment to the creditor of the debt secured so that the creditor does not have any further claim against the defendant in respect of that liability;
(b) that the debt was due and owing by the principal debtor; (c) that the debt was covered by the contract of suretyship. Asa Investments (Pty) Ltd v Smit 1980 (1) SA 897 (C) The surety may not claim more from any surety than that surety’s proportionate share, and a cession obtained from the creditor does not affect this rule. Gerber v Wolson 1955 (1) SA 158 (A) The contribution cannot be claimed until the extent of the ultimate burden, which the co-sureties must share, has been established. Fircone Investments (Pty) Ltd v Bank of Lisbon & SA Ltd 1982 (3) SA 700 (T) Guarantee: A guarantee may amount to either a contract of suretyship (an accessory obligation) or a primary obligation to perform under certain conditions or circumstances. List v Jungers 1979 (3) SA 106 (A) The latter type of agreement need not be in writing and the special rules relating to suretyship do not apply. Its effect depends on its terms. Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 (2) SA 827 (A) The same applies to a contract of indemnity or to an unreserved undertaking to pay the debt of another. Northern Assurance Co Ltd v Delbrook-Jones 1966 (3) SA 176 (T) Peter Cooper & Co (Previously Cooper & Ferreira) v De Vos [1998] 2 All SA 237 (E) PRECEDENTS Claim – against principal debtor and surety 1.
On [date] at [place], plaintiff entered into a written agreement with first defendant in terms of which the latter undertook to clear a certain plantation for plaintiff, in the manner set out in the agreement, and to complete the work on or before [date]. A copy of the agreement is annexed hereto and marked “A”. 2. Second and third defendants, in writing, on [date] at [place], bound themselves as sureties and co-principal debtors with first defendant for the due and punctual performance by first defendant of all his obligations under the agreement. A copy of the deed of suretyship is annexed hereto and marked “B”. First defendant commenced the work during [state period] but failed to complete it.
3.
4. The reasonable cost of completing the work is [amount] and exceeds the contract price by [amount] which amount, therefore, represents the damages suffered by plaintiff. WHEREFORE plaintiff claims against defendants jointly and severally: (a) (b)
Payment of [amount]. Interest at the rate of [percentage], calculated from date of judgment.
[Page 331] Claim – against principal debtor and surety First defendant is indebted to plaintiff [set out cause of action and amount].
1.
2. Second defendant executed a deed of suretyship on [date] at [place] in favour of plaintiff and bound himself as surety and co-principal debtor with first defendant for and in respect of first defendant’s aforesaid liability. 3. A copy of the deed of suretyship is annexed hereto and marked “A”. 4. First and second defendants failed to pay the indebtedness of first defendant. WHEREFORE plaintiff claims against defendants, jointly and severally: (a) (b)
Payment of [amount]. Interest at the rate of [percentage] from [date] to date of payment.
Claim – against surety only 1. [Set out the claim against principal debtor]. 2. Defendant bound himself in writing as surety for the due fulfilment of his obligations by the principal debtor on [date] at [place]. A copy of the deed of suretyship is annexed hereto. Defendant renounced the benefits of excussion, division and cession of action.
3.
or The principal debtor is in insolvent circumstances, is manifestly unable to meet his obligations and has no attachable assets within the jurisdiction of this honourable court. 4. The principal debtor failed to pay the amount due by him. WHEREFORE plaintiff claims against defendant (which judgment shall be joint and several with any judgment obtained against the principal debtor): (a) Payment of [amount]. (b) Interest. Claim – by surety against principal debtor
1. On [date], defendant became indebted to [name] in an amount of [amount] [set out the grounds]. 2. On [date] at [place], plaintiff bound himself as surety and co-principal debtor, on behalf of defendant, to the creditor in the sum of [amount] in the event of defendant’s failing to pay on demand. A copy of the deed of suretyship is annexed hereto and marked “A”. 3. Defendant failed to pay the sum of [amount] to the creditor. 4. On [date] at [place], plaintiff paid defendant’s indebtedness to the creditor in terms of his obligations as surety. 5. Defendant is, therefore, obliged to reimburse plaintiff with the sum of [amount]. Claim – for contribution by co-surety 1. Plaintiff and the two defendants jointly and severally became sureties and co-principal debtors for the due payment by [name] of the sum of [amount] to [name]. 2. A copy of the deed of suretyship is annexed hereto and marked “A”. 3. The principal debtor failed to pay the said sum to the creditor on due date or at all. 4. On [date], plaintiff, having been called upon by the creditor to do so, paid the full indebtedness of the principal debtor to the creditor. In the premises, each defendant is liable to plaintiff for his pro rata share of the amount so paid.
5.
WHEREFORE plaintiff claims: (a) Payment by first defendant of [amount]. (b) Payment by second defendant of [amount]. [Page 332] Plea – limitation of liability [Taken from Snaid v Volkskas Bank Ltd 1997 (1) SA 239 (W).] 1. On or about 26 May 1984 and at Johannesburg the defendant signed a written document termed “guarantee by an individual” in terms whereof the defendant bound herself as surety and co-principal debtor unto and in favour of the plaintiff for and on behalf of M. 2. In terms of the suretyship the defendant bound herself for repayment on demand of any sum or sums which the debtor owed to the plaintiff provided that the total amount to be recovered from the defendant in terms thereof would not exceed the sum of R10 000. 3. On or about 10 June 1990 and at Johannesburg the defendant effected payment to the plaintiff in the sum of R10 000 being the total amount owing by the defendant to the plaintiff in terms of the said deed of suretyship. 4. In the premises the defendant has discharged her indebtedness to the plaintiff in full arising out of the said deed of suretyship and the plaintiff is not entitled to receive any further sums from the defendant arising out of the said deed of suretyship whatsoever. Plea – release [Taken from Fry v First National Bank of South Africa Ltd 1996 (4) SA 924 (C).] 1. Second defendant is a director of third defendant and at all material times was duly authorised to represent third defendant. At all times material hereto Developments (Pty) Ltd held a current account with plaintiff’s Claremont branch
2. 3.
During 1988 and at Cape Town, plaintiff, duly represented by its Claremont branch manager, Developments (Pty) Ltd, duly represented by first and second defendants, first defendant personally, second defendant personally, and third defendant, duly represented by the second defendant, entered into a partly oral and partly written composite agreement in terms of which: 3.1 Plaintiff would lend Developments money on overdraft up to a certain limit. 3.2 First to fourth defendants would stand surety for such overdraft in the terms pleaded by plaintiff in its particulars of claim. 3.3
Plaintiff would honour the cheques or other withdrawals by Developments as ordered by any two of the signatures of first defendant or second defendant or one K.
4. In breach of the terms of paragraph 3.3 above, on 14 March 1991, plaintiff advanced Developments (Pty) Ltd the sum of R150 000 on overdraft on the instruction of first defendant only and without the knowledge or consent of second defendant or the said K. 5. The said advance on overdraft of R150 000 was accordingly not authorised and plaintiff had no authority to make the said advance. 6. Plaintiff is accordingly not entitled to claim the said amount of R150 000 or the interest which has accrued thereon (which is in excess of R13 504,94) from second or third defendants. Pleadings/Amlers Precedents of Pleadings/T/Tender: By a Defendant Tender: By a Defendant Related subjects: COMPROMISE TENDER IN FULL AND FINAL SETTLEMENT General: A defendant who wishes to compromise may tender, with or without admission of liability, payment or performance of part of what is claimed. Such a tender may be contained in the plea or may be made in accordance with the provisions of Uniform rule 34. Tender in plea: The purpose of a tender in a plea is to protect the defendant against an order as to costs since a tender made extracurially does not [Page 333] provide any protection against costs, even if the plaintiff succeeds only in respect of the same amount or an amount smaller than that tendered. In order to obtain the advantage of a prior tender, the fact of the tender must be pleaded and the tender must be repeated in the plea. The tender must be unconditional and be open to acceptance until judgment. De Beer v Rondalia Versekeringskorp van SA Bpk 1971 (3) SA 614 (O) Boland Bank Bpk v Steele 1994 (1) SA 259 (T) at 266 If a defendant pleads a tender (with or without admission of liability) for protection against an order for costs, he or she will be held to the tender and judgment will be entered for the amount of the tender, even if it is found that the defendant is not at all liable or is liable for a lesser amount. Bouwer v Stadsraad van Johannesburg 1979 (3) SA 37 (A) Swanepoel v Swanepoel [1996] 3 All SA 440 (SE) at 445 It follows from this that a tender contained in a plea has very little practical advantage and that a tender in terms of the court rule is to be preferred. The provision of rule 34(10) that prohibits the disclosure to the court of a tender in terms of the rules does not apply to an open tender pleaded. Foord v Lake NNO 1968 (4) SA 395 (W) A prior tender is not a defence to an action. Aarwater (Edms) Bpk v Venter 1982 (3) SA 974 (T) PRECEDENTS Claim – repeating a tender 1. Defendant denies liability for the claimed amount of [Rx] but admits his liability to plaintiff on the grounds stated for the lesser amount of [Ry]. 2. On [date] at [place], defendant in writing tendered payment to plaintiff of [Ry] which tender plaintiff rejected. 3.
Defendant hereby repeats the said tender unconditionally and hereby consents to judgment in the amount of [Ry]. WHEREFORE defendant, whilst repeating his tender, prays that plaintiff’s claim to the extent of [Rx–Ry] be dismissed with costs. Pleadings/Amlers Precedents of Pleadings/T/Tender: By a Plaintiff Tender: By a Plaintiff Related subject: EXCEPTIO NON ADIMPLETI CONTRACTUS Need for tender: Where a plaintiff sues on a contract and claims performance of the defendant’s obligation under the contract, and where the right to such performance is dependent upon the performance by the plaintiff of a reciprocal obligation due to the defendant, it is necessary that the plaintiff should tender performance of this obligation to the defendant in the claim. Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3) SA 541 (D) Normally, the tender should be made in the body of the relevant pleading but may be contained in, or be inferred from, the prayers. Lafrenz (Pty) Ltd v Dempers 1962 (3) SA 492 (A) [Page 334] Where a contract is to be set aside, even on the ground of fraud, the person seeking restitution from the other party must tender to restore what he or she has obtained under the contract, so that both parties may be placed in their original positions. Marks Ltd v Laughton 1920 AD 12 Bonne Fortune Beleggings Bpk v Kalahari Salt Works (Pty) Ltd 1974 (1) SA 414 (NC) Cash Converters Southern Africa (Pty) Ltd v Rosebud Western Province Franchise (Pty) Ltd [2001] 3 All SA 179 (C); 2002 (1) SA 708 (C) Simopoulos v Antoniou [2000] 4 All SA 427 (SE) Tender dispensed with: If a defendant repudiates the obligation to perform, the whole purpose of the tender falls away because the continuing repudiation amounts to a waiver of a right to a tender of performance by the plaintiff. NKP Kunsmisverspreiders (Edms) Bpk v Sentrale Kunsmis Korp (Edms) Bpk 1973 (2) SA 680 (T) The fact that restitution is no longer possible without the fault of the plaintiff does not disqualify the plaintiff from cancelling a contract. Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd [1998] 4 All SA 465 (A); 1999 (2) SA 719 (SCA) A claim for damages resulting from a breach of contract does not require a tender of restitution of the benefits received under the cancelled contract. Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd 1951 (1) SA 312 (C) Pleadings/Amlers Precedents of Pleadings/T/Tender: In “Full and Final Settlement” Tender: In “Full and Final Settlement” Related subjects:
COMPROMISE PAYMENT TENDER BY A DEFENDANT
Effect: The acceptance by a creditor of a tender made in full and final settlement may, depending on the circumstances, amount to a settlement of the debt. The reason is that the meaning of expression “in full and final settlement” depends on the context in which it is used. ABSA Bank Ltd v Van de Vyver NO [2002] 3 All SA 425 (A); 2002 (4) SA 397 (SCA) The debtor may raise the compromise as a complete answer to a claim for the balance of the alleged debt. Stieler v Kroch-Bou Aannemers Bpk [1997] 2 All SA 526 (W) This is only possible if there is an existing dispute. Karson v Minister of Public Works 1996 (1) SA 887 (E) The cases on this subject are not altogether harmonious since the distinctions between an offer of compromise, a tender and a payment are not always easy to discern or to apply in practice. Cf Andy’s Electrical v Laurie Sykes (Pty) Ltd 1979 (3) SA 341 (N) Paterson Exhibitions CC v Knights Advertising and Marketing CC 1991 (3) SA 523 (A) Onus: It is for the defendant to allege and prove the compromise. Where there is doubt, the construction unfavourable to the defendant of the tender or offer will prevail. Cecil Jacobs (Pty) Ltd v Macleod & Sons 1966 (4) SA 41 (N) at 47
[Page 335] A compromise being a contract, the offer and its acceptance must be proved. The offer of compromise (tender): As a general rule, the sending of a cheque “in full and final settlement” of a debt amounts to an offer of compromise. It carries with it the implied condition that, if the cheque is accepted (ie, banked), the claim is settled. Odendaal v Du Plessis 1918 AD 470 Burt NO v National Bank of SA Ltd 1921 AD 59 Depending on the surrounding circumstances, the sending of such a cheque may amount to a payment and not to an offer of compromise. Harris v Pieters 1920 AD 644 The fact that the defendant, together with the offer, acknowledges all or part of the debt is not, per se, inconsistent with an offer of compromise. Van Breukelen v Van Breukelen 1966 (2) SA 285 (A) Acceptance of tender: If the creditor accepts the payment, he or she thereby accepts the offer of compromise. A creditor who does not wish to compromise must return the payment tendered and sue for the full amount. Van Breukelen v Van Breukelen 1966 (2) SA 285 (A) at 289 A creditor may not retain payment “without prejudice” to her or his rights. Andy’s Electrical v Laurie Sykes (Pty) Ltd 1979 (3) SA 341 (N) The defendant will also have to show that the person who accepted the payment had authority to compromise the claim on behalf of the creditor. Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) PRECEDENTS Claim – of settlement Defendant pleads that his indebtedness to plaintiff was, at all relevant times, in dispute.
1.
2. On [date], defendant sent to plaintiff a cheque for [amount]. This cheque was marked “in full and final settlement” and constituted an offer of settlement. 3. On [date], plaintiff accepted the cheque and banked it to the credit of his own account. 4. In the premises, plaintiff accepted defendant’s offer of compromise and his claim became settled. Pleadings/Amlers Precedents of Pleadings/T/Third-party Procedure Third-party Procedure Related subject: MOTOR VEHICLE ACCIDENTS General: The purpose of the third-party procedure is to enable a litigant to avoid a multiplicity of actions concerning the same or related subject-matter. It is used principally to complement the provisions of section 2 of the Apportionment of Damages Act 34 of 1956 and permits of conditional claims. Instead of using this procedure, a party is entitled in a proper case to institute separate proceedings and to apply for a consolidation of the different proceedings. MCC Contracts (Pty) Ltd v Coertzen [1998] 4 All SA 503 (A); 1998 (4) SA 1046 (SCA) [Page 336] Procedure: A party (called a third party) who is not a party to an action may be made a party thereto by following the procedure of Uniform rule 13. The substantial portion of the notice is in the form of a particulars of claim and must state the nature and ground of the claim of the party issuing the third-party notice against the third party. Uniform rule 13(2) The relief sought against the third party is either a contribution, an indemnification or a declaratory order (sought on the basis that the question or issue in the main action is substantially the same as a question or issue which has arisen or will arise between these two parties). It should be noted that the lis is between the party issuing the notice and the third party only. There is no lis between the third party and any other party to the litigation. Geduld Lands Ltd v Uys 1980 (3) SA 335 (T) See, however, IPF Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, Third Party) 2002 (5) SA 101 (W) at 110
It follows that a third-party notice is a pleading which is independent of the main claim and of any response thereto. ABSA Bank Ltd v Boksburg Transitional Local Council (Government of the Republic of South Africa Third Party) 1997 (2) SA 415 (W) at 419 The third party may plead or except to the third-party notice as if he or she were a defendant to the action and may also, by filing a plea or any other proper pleading, contest on any ground the liability of the party issuing the notice, notwithstanding that such ground has not been raised by the latter party. The third party is not entitled to institute a claim in reconvention against any person other than the party issuing the notice. Uniform rule 13(6) A claim for damages against the third party, which claim would rise upon the success of the plaintiff’s claim, is not a claim for an indemnity under this rule. Dodd v Estate Cloete 1971 (1) SA 376 (E) PRECEDENTS Claim – for indemnity Plaintiff is [name]. Defendant is [name]. The third party is [name].
1. 2. 3.
4. On [date], plaintiff sued defendant for [amount] being estate agent’s commission in respect of the sale of defendant’s property situated at [location] to the third party. A copy of each of the summons and particulars of claim are attached hereto and marked “A”. 5. On [date] at [place], the third party in writing agreed to indemnify defendant against any claim for estate agent’s commission arising from the said sale. A copy of the indemnity is attached hereto and marked “B”. 6. On [date], defendant filed a plea to plaintiff’s particulars of claim, in which he denied that plaintiff was the effective cause of the sale. A copy of the plea is attached hereto and marked “C”. [Page 337] WHEREFORE defendant claims against the third party: An order that, in the event of plaintiff’s succeeding against defendant, the third party indemnify defendant in such amount as defendant is ordered to pay, together with the costs of defending the action. [See further: Gross v Commercial Union Assurance Co Ltd 1974 (1) SA 630 (A).] Pleadings/Amlers Precedents of Pleadings/T/Trade Marks Trade Marks Related subjects: PASSING-OFF UNLAWFUL COMPETITION Statute: The Trade Marks Act 194 of 1993 is concerned with trade marks that are registered. Unregistered marks may be protected by the principles relating to unlawful competition and, more particularly, passing-off. One object of registration is to dispense with the proof of reputation of a mark, which is necessary for passing-off. Registration of a mark under the Act is required before proceedings can be instituted for trade-mark infringement under the Act. However, the Act does not affect the rights of any person, at common law, to bring an action based on passing-off. Passing-off: Each of trade-mark infringement and passing-off should be kept in its own niche because: (a)
(b)
infringement proceedings under the Act are directed at a comparison between the registered trade mark as such and the allegedly offending mark as such, whereas, in passing-off proceedings, the comparison is between the whole get-up of the goods as marketed by the plaintiff and the whole get-up of the defendant’s goods; Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Ltd 1976 (1) SA 530 (T) The Upjohn Company v Merck 1987 (3) SA 221 (T) in the case of passing-off, the plaintiff must prove a reputation in the mark or get-up, whereas, in trade-markinfringement proceedings, the plaintiff’s reputation is irrelevant.
Jurisdiction: Trade-mark infringement is a statutory delict and the rules relating to jurisdiction in delictual actions apply. Statutory relief may be granted by a high court only.
Trade Marks Act 194 of 1993 s 34(3) A registered trade mark has effect only in the territory (country) where it is registered. The sole exception is the protection under the Paris Convention given to a well-known trade mark. Trade Marks Act 194 of 1993 s 35 McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd [1996] 4 All SA 1 (A); 1997 (1) SA 1 (A) Any high court with competent civil jurisdiction can try an infringement action. As the situs of the registry is in Pretoria, the Pretoria high court has sole jurisdiction to try any claim or counterclaim for removal, amendment or variation of, or other relief affecting any entry in, the register, unless one of these issues arises from or forms part of proceedings instituted in another high court having jurisdiction in relation to the proceedings, in which event that court will have this additional jurisdiction. PPI Makelaars v Professional Provident Society of South Africa [1997] 4 All SA 444 (A); 1998 (1) SA 595 (SCA) [Page 338] As a general rule, infringement proceedings are by way of notice of motion and not by way of action. Damages must, however, be recovered by action. Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1978 (4) SA 696 (T) The plaintiff: The plaintiff in a trade-mark-infringement action must be the registered proprietor of the trade mark. A registered user of a trade mark is entitled to call upon the proprietor to institute infringement proceedings and, if the proprietor fails or neglects to do so within two months, the registered user may institute proceedings in her or his own name but is obliged to join the proprietor as a nominal defendant. Trade Marks Act 194 of 1993 s 38(4) The defendant: An action for infringement lies against any person who, without the necessary authority, uses a mark contrary to the provisions of section 34(1). Esquire Electronics Ltd v Executive Video 1986 (2) SA 576 (A) at 590 It should be noted that section 34(1) differs in some material respects from section 44(1) Repealed Act Act 62 of 1963 has been repealed by s 71 of Act 194 of 1993 of the repealed Trade Marks Act 62 of 1963 Repealed Act Act 62 of 1963 has been repealed by s 71 of Act 194 of 1993 and that the earlier cases may not always be applicable to the new provisions. Trade mark registration: The plaintiff must allege and prove the existence of a trade-mark registration. No right of action arises prior to registration. Trade Marks Act 194 of 1993 s 33 Once registered, the owner is also entitled to damages which arose from acts performed after advertisement of the acceptance of an application for registration, which acts, if performed after registration, would amount to infringement of the registered mark. Trade Marks Act 194 of 1993 s 34(3)(c) and (d) Registration can be proved by a certificate of the registrar. Infringement of trade mark: It is for the plaintiff to allege and prove infringement of the trade mark. A trade mark can be infringed in three ways and it is necessary to distinguish between them. Infringement under section 34(1)(a): This provision represents the usual infringement case. It is also the simplest to establish. The plaintiff must allege and prove: (a) the unauthorised use; Beecham Group plc v Southern Transvaal Pharmaceutical Pricing Bureau (Pty) Ltd 1993 (1) SA 546 (A) (b) (c)
in the course of trade; in relation to goods or services in respect of which the trade mark is registered; Berman Bros (Pty) Ltd v Sodastream Ltd 1986 (3) SA 209 (A)
(d) of an identical mark or of a mark so nearly resembling it; Miele et Cie GmbH & Co v Euro Electrical (Pty) Ltd 1988 (2) SA 583 (A) National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd 2001 (3) SA 563 (SCA)
(e) as to be likely to deceive or cause confusion. Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) Cointreau et Cie SA v Pagan International 1991 (4) SA 706 (A) Abbott Laboratories v UAP Crop Care (Pty) Ltd [1999] 1 All SA 502 (C); 1999 (3) SA 624 (C) Cowbell AG v ICS Holdings Ltd [2001] 4 All SA 242 (SCA); 2001 (3) SA 941 (SCA) [Page 339] Use of a genuine mark in connection with the plaintiff’s genuine goods is not an infringement. Television Radio Centre (Pty) Ltd v Sony 1987 (2) SA 994 (A) Standard Bank of SA Ltd v United Bank Ltd 1991 (4) SA 780 (W) Infringement under section 34(1)(b): The object of this cause of action is to protect a mark against confusion if it is used in relation to similar goods or services, albeit not of the same class in which the mark is registered. The plaintiff must allege and prove: (a) (b) (c) (d) (e) (f)
the unauthorised use of a mark; which is identical or similar to the trade mark registered; in the course of trade; in relation to goods or services; which are so similar to the goods or services in respect of which the trade mark is registered; that, in such use, there exists the likelihood of deception or confusion.
Infringement under section 34(1)(c): This provision protects a registered mark, well-known in the Republic, against the taking of unfair advantage of the distinctive character or repute of the mark. The plaintiff must allege and prove: (a) the unauthorised use of a mark; (b) which is identical or similar to a registered trade mark; (c) which is well-known in the Republic; (d) in the course of trade; (e) in relation to any goods or services; (f) that the use of the infringing mark is likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the registered trade mark, even if there is no confusion or deception. Bata Ltd v Face Fashions CC 2001 (1) SA 844 (SCA) This provision does not apply to a defensive trade mark. Fault: Fault is not an element of the action and the absence of fault is also not a defence to an infringement action. Relief: The Trade Marks Act has special provisions relating to the relief to which a plaintiff is entitled. The relief ordinarily prayed for is: (a) an interdict; (b) an order for removal of the infringing mark from all material and, where the infringing mark is inseparable or incapable of being removed from the material, an order that all such material be delivered up to the proprietor; (c) (d)
damages; in lieu of damages, at the option of the proprietor, a reasonable royalty which would have been payable by a licensee for the use of the trade mark concerned.
Trade Marks Act 194 of 1993 s 34(3) and (4) [Page 340] Non-infringement: A registered trade mark is not infringed by: (a)
any bona fide use by a person of her or his own name, the name of her or his place of business, the name of any of her or his predecessors in business, or the name of any such predecessor’s place of business.
(b) the use by any person of any bona fide description or indication of the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of her or his goods or services, or the mode or time of production of the goods or the rendering of the services; (c) the bona fide use of the trade mark in relation to goods or services where it is reasonable to indicate the intended purpose of such goods, including spare parts and accessories, and such services; (d)
the importation into or the distribution, sale or offering for sale in the Republic of goods to which the trade mark has been applied by or with the consent of the proprietor thereof;
(e) the bona fide use by any person of any utilitarian features embodied in a container, shape, configuration, colour or pattern which is registered as a trade mark; (f)
the use of a trade mark in any manner in respect of or in relation to goods to be sold or otherwise traded in, or services to be performed, in any place, or in relation to goods to be exported to any market, or in any other manner in relation to which, having regard to any conditions or limitations entered in the register, the registration does not extend;
(g) the use of any identical or confusingly or deceptively similar trade mark which is registered. Paragraph (a) does not apply to the name of any juristic person whose name was registered after the date of registration of the trade mark and the use contemplated in paragraphs (a), (b) or (c) must be consistent with fair practice. Trade Marks Act 194 of 1993 s 34(2) PRECEDENTS Claim – trade mark infringement 1. Plaintiff is and has been since [date] the registered proprietor in the Republic of South Africa of the trade mark MICATEX which is registered under number 71/- in class 2 (Schedule IV) in respect of paints. The said registration is, and was at all times relevant hereto, of full force and effect.
2.
3. Since about [date], defendant has been using, in the Republic of South Africa, a mark consisting of the word MICADEK in relation to paints as a trade mark. 4. The mark MICADEK (hereinafter called “the offending mark”) so nearly resembles plaintiff’s registered trade mark number 71/- as to be likely to deceive or cause confusion. 5. The said use by defendant of the offending mark is use in relation to goods in respect of which plaintiff’s aforesaid trade mark is registered. 6. The use by defendant of the offending mark was not authorised by plaintiff. 7. The use by defendant of the offending mark is, in the premises, an infringement of the rights of plaintiff acquired by registration of trade mark number 71/-. Plaintiff has suffered damage as a result of the infringement by defendant in the sum of [amount]. [Detail].
8.
9. Plaintiff apprehends upon reasonable grounds that defendant will continue with its aforesaid unlawful infringement unless restrained by an order of court.
[Page 341] WHEREFORE plaintiff claims: (a) An order interdicting defendant from infringing plaintiff’s rights acquired by the registration of the trade mark number 71/- MICATEX by using, in relation to any goods in respect of which the said trade mark is registered, the mark MICADEK or any other mark so nearly resembling the aforesaid registered trade mark as to be likely to deceive or cause confusion. (b)
(c)
An order compelling defendant to erase the offending mark from all goods, containers, packages, labels, advertising matter and documents of whatever sort, bearing the mark MICADEK which may be in its possession or under its control. Payment of [amount] being damages. [Based, in part, on Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).]
Pleadings/Amlers Precedents of Pleadings/T/Trespass Trespass See : NUISANCE, POSSESSORS: DAMAGES CLAIMS BY Pleadings/Amlers Precedents of Pleadings/U/Undue Influence Undue Influence Related subject:
MENTAL INCAPACITY
Elements: A party to a jural act may avoid it and claim restitution on the ground that such act was the result of undue influence. Such party must then allege and prove that: (a) (b) (c)
(d) (e)
the other party acquired an influence over her or him; the influence weakened her or his resistance and made her or his will pliable; the other party used this influence in an unscrupulous manner in order to prevail upon the other to agree to the transaction; Hofer v Kevitt NO [1997] 4 All SA 620 (A); 1998 (1) SA 382 (SCA) the transaction is prejudicial; and exercising a normal free will, the plaintiff would not have entered into the transaction. Preller v Jordaan 1956 (1) SA 483 (A) Patel v Grobbelaar 1974 (1) SA 532 (A) Cf BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C)
Special relationships: The existence of a special relationship between the parties does not create any presumption of undue influence. Miller v Muller 1965 (4) SA 458 (C) at 463 Tender: Since the relief sought is restitutional, the party relying on undue influence must tender to restore anything received in terms of the transaction. PRECEDENTS Claim – for damages by client Defendant was, at all material times, a registered medical practitioner practising at [place]. Plaintiff was the registered owner of the property [describe].
1. 2.
[Page 342] 3.
On [date], plaintiff transferred the property to defendant without any consideration and the property is still registered in defendant’s name. 4. During the period when plaintiff and defendant negotiated the transfer to defendant of the property, plaintiff was physically and mentally ill and intellectually in a weak and exhausted condition. Defendant was plaintiff’s personal medical practitioner, and frequently treated plaintiff.
5.
6. Because of the relationship between plaintiff and defendant, as his doctor, plaintiff from time to time confided to defendant his anxieties and, in particular, his concern that, if he became unable to manage his property because of his age and health, his wife would not be in a position to attend to it in her own interest. 7. Defendant, on a number of occasions, advised plaintiff to cause the property to be registered in his name so that he would have control and be in a position to look after the interest of the plaintiff and of his wife. 8. Defendant repeatedly urged and influenced plaintiff to accept his advice and, as a result thereof, plaintiff signed the necessary documents prepared by defendant’s attorney for the transfer of the property to defendant. 9. Plaintiff states that, in the light of the foregoing, defendant unduly and unlawfully influenced him to sign the documents and took advantage of plaintiff ’s condition for his own benefit. 10. But for defendant’s conduct as aforesaid, plaintiff would not have signed the documents for the transfer. WHEREFORE plaintiff claims: An order compelling defendant to retransfer the property to plaintiff. Pleadings/Amlers Precedents of Pleadings/U/Unlawful Competition Unlawful Competition Related subjects: CONFIDENTIAL INFORMATION INJURIOUS FALSEHOODS PASSING-OFF RESTRAINT OF TRADE Cause of action: Competitive trading is unlawful if it involves a wrongful interference with another trader’s rights and is actionable in terms of the lex Aquilia if it directly results in loss. Schultz v Butt 1986 (3) SA 667 (A) at 678 It is worthwhile repeating that it is not legitimate to use some general notion of unlawful competition to create an ersatz passing-off with requirements less exacting than those required by the common law. Some of the restraints that the common law places on the passing-off action are important in preventing the creation of impermissible monopolies. Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A) at 453 Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (A); 2001 (3) SA 884 (SCA) There is no numerus clausus of acts that constitute unlawful competition. The best-known are: (a)
trading in contravention of an express statutory prohibition; See : STATUTORY DUTY OR AUTHORITY: BREACH
(b) fraudulent misrepresentations made by a rival trader as to her or his own business or goods; Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C) See : INJURIOUS FALSEHOODS [Page 343] (c)
the publication by a rival trader of injurious falsehoods concerning the competitor’s business; See : INJURIOUS FALSEHOODS
(d) the passing-off by a rival trader of her or his own goods or business as being that of a competitor; See : PASSING-OFF (e)
the employment of physical assaults and intimidation designed to prevent a competitor from pursuing her or his trade; (f) the unfair use of a competitor’s fruits and labour; Schultz v Butt 1986 (3) SA 667 (A) Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) (g)
the misuse of confidential information in order to advance one’s own business interests and activities at the expense of a competitor’s; Schultz v Butt 1986 (3) SA 667 (A) at 679 See : CONFIDENTIAL INFORMATION
(h) the inducement or procurement of a breach of contract: an action for damages (and, in an appropriate case, for an interdict) will lie against any person who intentionally and without justification induced or procured another to breach a contract made with any other person; Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 200 Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D) (i) the interference with character merchandising rights. Federation Internationale de Football v Bartlett 1994 (4) SA 722 (T) Cf SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons [2003] 1 All SA 274 (SCA) Wrongfulness: The test for wrongfulness is one of fairness and honesty, having regard to the boni mores and the general sense of justice in the community. Questions of public policy, such as the significance of a free market and of competition, are important. Schultz v Butt 1986 (3) SA 667 (A) at 679 and cases there cited Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134 (SCA); 1997 1 416 (SCA) Damages: For calculation and proof, see: Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (SCA); 1997 (4) SA 399 (SCA) Pleadings/Amlers Precedents of Pleadings/U/Usury Usury See : CREDIT AGREEMENTS, INTEREST, LOANS Pleadings/Amlers Precedents of Pleadings/V/Veld Fires Veld Fires The National Veld and Forest Fire Act 101 of 1998 replaced the civil liability provisions of the Forest Act 122 of 1984. [Page 344] Limitation of liability: Neither the State nor any other person is liable for any damage or loss caused by the purported exercise of any power or performance of any duty, or by the failure to exercise any power or perform any duty in terms of the Act. This immunity does not apply if the person responsible acted: (a) in bad faith, in relation to a power or duty in respect of fire rating; or (b) negligently or in bad faith, in relation to any other power or duty under the Act. National Veld and Forest Fire Act 101 of 1998 s 33 Cf Simon’s Town Municipality v Dews 1993 (1) SA 191 (A) Cf Fire Brigade Services Act 99 of 1987 s 20 Presumption of negligence: A defendant is presumed (until the contrary is proved) to have been negligent in relation to a veld fire if the plaintiff proves a loss suffered from a veld fire: (a) (b)
which the defendant caused; or which started on or spread from land owned by the defendant.
This presumption does not apply if the defendant is a member of a fire-protection association in the area where the fire occurred. National Veld and Forest Fire Act 101 of 1998 s 34(1)
The presumption does not exempt the plaintiff from the onus of proving that any act or omission by the defendant was wrongful. Before the presumption can assist a plaintiff, the plaintiff must: (a)
allege and prove a wrongful act or omission by the defendant; National Veld and Forest Fire Act 101 of 1998 s 34(2)
(b) allege negligence on the part of the defendant or someone else for whom he or she was vicariously liable; Viljoen v Smith 1997 (1) SA 309 (A) (c)
(d)
allege and prove a causal connection between the loss suffered and the defendant, such as that the defendant started the fire or that the fire emanated from the defendant’s property; Rosenthal v Mastroguiseppe [2000] 4 All SA 295 (A) allege and prove that the defendant is not a member of a fire-protection association in the area where the fire occurred. Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) at 84 Porritt v Molefe 1982 (3) SA 76 (A) Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A)
The onus is then on the defendant to prove on a balance of probabilities: (a) that it was not negligent in any of the respects alleged by the plaintiff; or (b) if its conduct did fall short of the standards required of it, that such failings would have had no effect on and, hence, would not have been relevant in relation to the harm caused. HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd [2000] 4 All SA 545 (SCA); 2001 (4) SA 814 (SCA) Prinsloo v van der Linde 1997 (3) SA 1012 (CC) Otherwise the onus is the same as in other delictual matter. Cf Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All SA 128 (SCA); 2000 (1) SA 827 (SCA) [Page 345] PRECEDENTS Claim 1. Plaintiff is the owner of the farm [describe]. 2. Defendant is the owner of the adjoining farm [describe]. 3. On [date], while defendant was making a fire break on his farm, the fire spread to plaintiff’s farm. 4. The fire was a veld fire. 5. The fire destroyed [describe] on plaintiff ’s farm, causing damages amounting to [amount] [detail]. 6. The damage was caused as a result of defendant’s negligence. [Detail grounds of negligence.] 7. Defendant is not a member of a fire-protection association. Pleadings/Amlers Precedents of Pleadings/V/Vetustas Vetustas Vetustas (immemorial usage) is a method of proving the existence of a public servitude (normally a public road). Immemorial usage gives rise to a presumption of fact that an alleged right has a lawful origin. Once the origin of the use can be established, the doctrine does not apply. Prescription, on the other hand, creates a private right through use but cannot create a right in favour of the general public. Nel v Louw 1955 (1) SA 107 (C)
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C) The rebuttable presumption that a right had a lawful origin arises if the following are alleged and proved: (a) continuous and uninterrupted use of the “right” (such as the use of a road) by the general public (or the public of a particular locality); (b) (c)
the owner did not interfere with that use; the origin of the use cannot be established. Malherbe v Van Rensburg 1970 (4) SA 78 (C) Oberholzer v Padraad van Outjo 1974 (2) SA 168 (SWA)
The onus (of rebuttal) then rests on the defendant to prove that the use had an unlawful origin. De Beer v Van der Merwe 1923 AD 378 PRECEDENTS Claim 1. Plaintiff and other members of the public have used the road between [place] and [place], as shown on the sketch map attached hereto and marked “A”, since time immemorial. 2. The road runs over the land of defendant, who, with knowledge of the aforesaid use, did not interfere. 3. In consequence, plaintiff and members of the public have a right to use the road. 4. On [date], defendant caused a fence to be erected across the road and thereby caused its closure. 5. Despite demand, defendant has refused to remove the fence. [Page 346] WHEREFORE plaintiff claims: (a) An order directing defendant to remove the said fence. (b) An order interdicting defendant from interfering in any way with the free and undisturbed use of the road by plaintiff as a member of the general public. Pleadings/Amlers Precedents of Pleadings/V/Via Necessitate Via Necessitate Related subject:
ROADS
Jurisdiction: Magistrates’ courts have jurisdiction to grant a right of way and also an interim interdict in respect of a way of necessity, pending the determination of an action to register the right of way. Magistrates’ Courts Act 32 of 1944 s 29(1)(c) Cloete v Karee-Aar Landgoed Bpk [1997] 2 All SA 700 (NC); 1997 (3) SA 30 (NC) Cause of action: A claim to a way of necessity arises if a plaintiff ’s land is so situated that the plaintiff has no reasonably sufficient access from any part of the land to the nearest public road. SA Yster & Staal Industriële Korp Bpk v Van der Merwe 1984 (3) SA 706 (A) Naudé v Ecoman Investments 1994 (2) SA 95 (T) Sanders NO v Edwards NO [2003] 1 All SA 108 (C) The right of way arises only by virtue of the grant in terms of the court order. An order of court is, therefore, essential to enable a party to enter the defendant’s property and to obtain registration of the right of way. Van Rensburg v Coetzee 1979 (4) SA 655 (A) at 671 Onus: A claimant must allege and prove: (a) the particular need and the reason why a way of necessity must traverse the defendant’s property; (b)
the width of the road claimed and the reason for that claim; (c)
a suitable route;
and tender compensation in a fixed sum. Compensation: Compensation must be determined with reference to the advantage to be gained by the plaintiff and the disadvantage to be suffered by the defendant. It must include special damages suffered. If the claim is for a road that will be used in emergency situations only, no compensation is payable. Van Rensburg v Coetzee 1979 (4) SA 655 (A) Relief: The relief sought is for the registration of a right of way over the defendant’s property against payment of compensation and costs of registration. Van Rensburg v Coetzee 1979 (4) SA 655 (A) at 681 Although it is said that the particular route should not form part of the relief claimed, a plaintiff is well advised to set out in the claim which route he or she alleges will be the most convenient. PRECEDENTS Claim – for a road without offer of compensation Plaintiff is the owner of farm [X] situate at [location]. Defendant is the owner of farm [Y] situated to the north of [X] and adjoining it.
1. 2.
[Page 347] 3. To the east of farm [Y] runs a proclaimed public road known as the eastern highway. 4. It is necessary for plaintiff, as a farmer on farm [X], in times of floods to have access to the eastern highway for himself, his servants and his visitors. 5. There is, however, in times of floods no access to or egress from the said highway, save by traversing defendant’s farm [Y]. 6. Despite repeated requests, defendant has refused to allow plaintiff to traverse his farm to reach the highway which is the nearest public road to the farm [X]. WHEREFORE plaintiff claims: An order declaring plaintiff entitled to a way of necessity over the farm [Y], in times of floods, to and from the eastern highway. Claim – for a road with offer of compensation Plaintiff is the owner of farm [name] in the district of [specify].
1.
2. Defendant is the owner of farm [name] which adjoins plaintiff ’s said farm along its northern boundary, as will more clearly appear from the map attached hereto and marked “A”. 3. The nearest public road to plaintiff ’s farm is that running from [place] to [place] and marked P–Q on Annexure “A”. No other public road is within reasonable reach of plaintiff ’s farm. The only access from plaintiff ’s farm to the said public road is over defendant’s farm.
4. 5.
6. Plaintiff requires such access for his farming activities and for personal reasons by himself, his family and others. 7. For his farming activities, it is necessary for plaintiff to use vehicles at least [number] metres wide and, therefore, a road of at least [number] metres wide is required.
8. The value of the road to plaintiff and the disadvantage to be suffered by defendant by virtue thereof is worth [amount] and plaintiff hereby tenders payment of such amount as well as payment of the cost of registration of a right of way. [Detail amount] 9. Plaintiff alleges that a suitable route for a right of way would be that between the points marked X and Y on Annexure “A”. WHEREFORE, tendering as aforesaid, plaintiff claims: (a) An order that defendant take the necessary steps to register a right of way over his farm [name] which right of way shall be [number] metres wide and over such route as the honourable court may determine. (b)
Failing compliance by defendant with the aforesaid order within such time as the honourable court may determine, an order authorising the sheriff to perform all the necessary acts on defendant’s behalf to effect registration of a right of way as aforesaid.
Pleadings/Amlers Precedents of Pleadings/V/Vicarious Liability Vicarious Liability General: A parent is not vicariously liable for the acts of a child. Godfrey v Campbell [1997] 1 All SA 395 (C); 1997 (1) SA 570 (C) Employees: An employer is liable for damage occasioned by delicts committed by an employee in the course and scope of that employee’s employment. The same principles apply to analogous cases – for instance, the liability of an owner of a vehicle for the negligence of the driver. Messina Associated Carriers v Kleinhaus [2001] 3 All SA 285 (A); 2001 (3) SA 868 (SCA) Onus: The onus rests on the plaintiff to allege and prove, in addition to the usual allegations to establish delictual liability, that the person who committed the delict was: Stadsraad van Pretoria v Pretoria Pools 1990 (1) SA 1005 (T) Cf Midway Two Engineering and Construction Services v Transnet Bpk [1998] 2 All SA 451 (A); 1998 (3) SA 17 (SCA) at 29 [Page 348] (a)
an employee of the defendant; Gibbins v Williams, Muller, Wright & Mostert Ingelyf 1987 (2) SA 82 (T)
(b) that the employee performed the delictual act in the course and scope of her or his employment; Masuku v Mdlalose [1997] 3 All SA 339 (A); 1998 (1) SA 1 (SCA) (c)
what the employee’s duties were at the relevant time. Mkize v Martens 1914 AD 382 Minister of Police v Mbilini 1983 (3) SA 705 (A) Van der Berg v Coopers & Lybrand Trust (Pty) Ltd [2001] 1 All SA 425 (A); 2001 (2) SA 242 (SCA)
Disobedience: An employee who acts in defiance of an express instruction acts outside the course and scope of her or his duties. Where subsequent negligence in completing tasks within the course and scope of the duties causes damage to one who has associated her- or himself (even innocently) with the action taken in defiance of the express instruction, the employer remains not liable. Bezuidenhout NO v Eskom [2003] 1 All SA 411 (SCA); 2003 (3) SA 83 (SCA) If the employee did something which was unauthorised and criminal, by abusing the employment position the act may have no connection with the duties of the employee. The employer will then not be liable because it is not a case of an improper execution of duties but one of not performing them at all. ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2001] 1 All SA 1 (A); 2001 (1) SA 372 (SCA) at 383 Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 (5) SA 475 (SCA) Frolic of her or his own: The employer is not liable where the employee was engaged in a frolic of her or his own or in doing something which he or she was permitted to do for her or his own purposes but not employed to do for the employer, Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A) Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) Ess Kay Electronics Pte Ltd v First National Bank of Southern Africa Ltd [2001] 1 All SA 315 (A); 2001 (1) SA 1214 (SCA) unless it was incidental to her or his employment. Viljoen v Smith 1997 (1) SA 309 (A)
The subjective intention of the employee is a relevant factor in determining whether he or she acted within the course and scope of her or his employment. Minister van Veiligheid en Sekuriteit v Japmoco 2002 (5) SA 649 (SCA) at 659 The fact that the act complained of took place while the servant was on duty does not provide prima facie proof that it was committed in the scope and course of her or his duties. Minister of Police v Mbilini 1983 (3) SA 705 (A) Obotseng v Lebone 1994 (4) SA 88 (BG) at 92 Should the plaintiff succeed in establishing facts from which it could be inferred that the employee was acting in the course and scope of her or his employment, it will be for the employer to discharge the tactical onus. However, the ultimate onus remains on the plaintiff. SAR&H v Dhlamini 1967 (2) SA 203 (D) [Page 349] A defendant who wishes to deny the employer-employee relationship should do so explicitly. FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A) Independent contractors: A principal is normally not liable for the acts of an independent contractor. Colonial Mutual Life Assurance Society Ltd v MacDonald 1931 AD 412 Midway Two Engineering & Construction Services BK v Transnet Bpk [1998] 2 All SA 451 (A); 1998 (3) SA 17 (SCA) Where the work to be performed is per se dangerous, the principal may be held liable for her or his own negligence in failing to take reasonable precautions to protect other persons, including the servants of the contractor. Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) Stein v Rising Tide Productions CC [2002] 2 All SA 22 (C); 2002 (5) SA 199 (C) In appropriate circumstances, a person may escape liability arising out of dangerous work, by delegation to a properly qualified expert. Rhodes Fruit Farms Ltd v Cape Town City Council 1968 (3) SA 514 (C) PRECEDENTS Claim – against a master for a delict committed by her or his servant 1. At all material times, one [name] was employed by defendant as a driver of defendant’s motor vehicles. 2. On [date], the said [name], while driving defendant’s motor vehicle [registration number] during the course of defendant’s business and within the scope of his authority, collided with plaintiff’s motor vehicle at [place]. The collision was caused by the negligence of the said [name] in that [See : LEX AQUILIA].
3.
4. As a result of the aforesaid collision, considerable damage was done to plaintiff‘s motor vehicle as a result of which he has suffered damage in the sum of [amount] for which defendant is, in the premises, liable. [ See : LEX AQUILIA] Plea – to the above claim 1. Defendant denies that, at the time of the said collision, [name] was acting within the course of his employment or within the scope of his authority. 2. Defendant avers that, at the time, the said [name] was using defendant’s motor vehicle for his own private purposes and without defendant’s permission or knowledge. Pleadings/Amlers Precedents of Pleadings/V/Vindication Vindication Related subjects: ACTIO AD EXHIBENDUM ESTOPPEL EVICTION OR EJECTMENT INTERPLEADERS Statutes: The right to vindicate has been curtailed substantially by social legislation which is dealt with under EVICTION OR EJECTMENT. [Page 350]
Cause of action: An owner is entitled to reclaim possession of her or his property with the rei vindicatio. The action is an action in rem. It may be advisable for a plaintiff to claim alternative relief on the assumption that the defendant may have disposed of the plaintiff ’s property prior to the institution of the action or may dispose thereof after such institution. Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) See : ACTIO AD EXHIBENDUM Essentials: A plaintiff must allege and prove: (a)
(b)
ownership of the thing (whether movable or immovable); and Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 82 Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A) that the defendant was in possession of this property at the time of the institution of the action. Graham v Ridley 1931 TPD 476 Chetty v Naidoo 1974 (3) SA 13 (A)
Wrongfulness: In view of the fact that the possession of an owner’s property by another is prima facie wrongful, it is not necessary for the plaintiff to allege or prove that the defendant’s possession is wrongful or against the wishes of the plaintiff. If these allegations are made, they do not draw any additional onus. Krugersdorp Town Council v Fortuin 1965 (2) SA 335 (T) Chetty v Naidoo 1974 (3) SA 13 (A) Singh v Santam Insurance Co Ltd [1997] 1 All SA 525 (SCA); 1997 (1) SA 291 (SCA) Relief: The relief available to a plaintiff is: (a) the return of the possession of the property or, in lieu thereof, payment of its value calculated on the day of the trial; (b)
delivery of all fruits (or payment of their value) that have accrued to the defendant if the defendant was a mala fide possessor. If the defendant was bona fide, the plaintiff may claim the delivery of the fruits (or payment of their value), provided those fruits have accrued to the defendant after litis contestatio. Mlombo v Fourie 1964 (3) SA 350 (T)
Defences: (a) (b) (c)
Denial of ownership, which creates no onus for the defendant since the plaintiff has to prove ownership. Denial of possession, which likewise draws no onus. The defendant may plead that the plaintiff ’s property was returned to the plaintiff. This defence must be specifically alleged and proved by the defendant. An allegation by a plaintiff that the defendant had failed to return the property is a surplusage and draws no onus. Groenendijk v Tractor & Excavator Spares (Pty) Ltd 1978 (1) SA 815 (A)
(d) The bona fide disposal of possession is a complete defence. Leal & Co v Williams 1906 TS 554 A disposal by the defendant with knowledge of plaintiff ’s claim to the property is, on the other hand, wrongful and provides no defence. In such an instance, a plaintiff is entitled to damages calculated on the basis of the value of the property at the date of disposal. Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) [Page 351] (e) If the defendant wishes to rely on a right to possession (for example, a right to possession by virtue of a lease), the defendant must allege and prove the right. Woerman NO v Masondo [2002] 2 All SA 53 (A); 2002 (1) SA 811 (SCA) If the plaintiff concedes this right at any stage of the proceedings, the onus is on the plaintiff to prove a valid termination of that right. Chetty v Naidoo 1974 (3) SA 13 (A) Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C) Schnehage v Bezuidenhout 1977 (1) SA 362 (O) The onus resting on the plaintiff who makes such a concession includes an onus to prove the term of the agreement that gives the right of cancellation. Chetty v Naidoo 1974 (3) SA 13 (A)
If the plaintiff alleges or concedes a right of possession (for example, by virtue of a lease) but the defendant denies that right and relies on another right of possession or on another defence, the plaintiff need no longer prove the conceded right or its termination. Chetty v Naidoo 1974 (3) SA 13 (A) From a tactical point of view, it may be advisable for a plaintiff not to concede the right in the particulars of claim but to deal with it, and with its termination, in the replication, and then only in the alternative. The duty to begin will, at least, then rest on the defendant. (f)
A defendant who wishes to rely on estoppel must allege and prove: (i) a representation by the owner, by conduct or otherwise, that the person who disposed of the property to the defendant was its owner or was entitled to dispose of it; (ii) that the representation was made negligently; Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A) that the defendant relied on the representation in obtaining the property;
(iii)
(iv) that the reliance on the representation was the cause of the defendant’s detriment. Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd 1976 (1) SA 441 (A) Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk [1996] 2 All SA 215 (A); 1996 (3) SA 273 (A) at 284 See : ESTOPPEL Interpleader: A defendant who expects to be sued by others for delivery of the same thing may issue an interpleader notice. See : INTERPLEADERS PRECEDENTS Claim – for delivery 1. Plaintiff is the owner of [property]. 2. Defendant is in possession thereof. [Page 352] 3. In the alternative to paragraph 2, and if it be found that defendant is no longer in possessiosn thereof, plaintiff alleges that: (a) defendant disposed of the property with knowledge of plaintiff ’s ownership; (b) the value of the property is [amount]. WHEREFORE plaintiff claims: (a) (b)
Delivery of the [property]. Alternatively, payment of [amount].
Plea – relying on a right of possession 1. Defendant admits that plaintiff is the owner of [item] and that defendant is in possession thereof. 2. Defendant pleads that he possesses the [item] in terms of a hire-purchase agreement entered into by the parties in writing on [date] at [place]. A copy of the agreement is annexed hereto. Replication – alleging cancellation of contract 1. Plaintiff denies that the parties have entered into a hire-purchase agreement as alleged by defendant.
2. In the alternative, plaintiff alleges that the said hire-purchase agreement is void by virtue of [detail]. 3. In the further alternative, plaintiff alleges that the hire-purchase agreement was duly cancelled by plaintiff on [date], by letter, in terms of clause [number] of the contract, due to defendant’s breach by [detail]. Plea – relying on estoppel 1. Defendant admits that he was in possession of the [item] during the period [state period]. 2. Defendant denies that plaintiff is or was the owner of the [item] during any relevant period. 3. In the alternative to paragraph 2, defendant pleads that: (a) he purchased the [item] in good faith from a second-hand dealer [name] at [place] on [date]; (b) the second-hand dealer displayed the [item] with plaintiff’s consent as part of his stock in trade; (c) plaintiff thereby negligently represented that the dealer was the owner of the [item]; (d) defendant acted on the representation by purchasing the [item] from the dealer and thereby acted to his detriment. 4. Defendant admits that he sold the [item] on [date] to [name] at [place] but pleads that he had, at that stage, no knowledge of plaintiff’s claim to ownership. Pleadings/Amlers Precedents of Pleadings/V/Volenti non fit Iniuria Volenti non fit Iniuria Related subjects: CONTRIBUTORY NEGLIGENCE LEX AQUILIA Parties: The defence of volenti non fit iniuria cannot be raised against a claim by dependants arising from the death of their breadwinner. Jameson’s Minors v Central SA Railways 1908 TS 575 It can, however, be raised against most other claims, whether under the lex Aquilia, actio iniuriarum or the actio de pauperie. [Page 353] Onus: The onus rests on the defendant to establish the defence. Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 779 Rosseau v Viljoen 1970 (3) SA 413 (C) at 417 Essentials: The defendant must allege and prove that the plaintiff: (a)
had knowledge of the risk; Alberts v Engelbrecht 1961 (2) SA 644 (T)
(b) appreciated the ambit of the risk; and Durban City Council v SA Board Mills Ltd 1961 (3) SA 397 (A) at 406–407 (c)
consented to the risk. Waring & Gillow Ltd v Sherborne 1904 TS 340 at 340–344 Malherbe v Eskom 2002 (4) SA 497 (O)
Consent: The supervening injury must be sustained in consequence of a risk falling within the ambit of the consent. Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 779 Consent can be express or implied and, if it can be shown that the plaintiff foresaw the risk of injury and had knowledge and an appreciation of the danger, consent will be implied. Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 781
It is important to note that knowledge does not necessarily imply appreciation, nor are knowledge and appreciation tantamount to consent. General: The defence is fairly difficult to establish because the “maxim has to be applied with specially careful regard to the varying facts of human affairs and human nature . . . because it is concerned with the intangible factors of will and mind”. Bowater v Rowley Regis Corp 1944 1 KB 476, quoted in Stolzenberg v Lurie 1959 (2) SA 67 (W) at 73 The fact that the plaintiff was made aware of the risk does not absolve the defendant from not acting negligently. Fredericks v Shield Insurance Co Ltd 1982 (2) SA 423 (A) Volenti and contributory negligence: The defences of contributory negligence and volenti non fit iniuria may overlap since the voluntary assumption of a risk may constitute contributory negligence. The last-mentioned defence is, by reason of the Apportionment of Damages Act 34 of 1956, only a partial defence to a claim for damages because the amount that may be awarded depends on the degree of the plaintiff’s own fault in relation to the damage caused. The volenti defence entails a subjective inquiry related to the particular plaintiff, while contributory negligence calls for an objective inquiry in conformity with the standard of the reasonable person. Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 778 PRECEDENTS Plea – of volenti Defendant admits that plaintiff was injured when he fell off scaffolding at defendant’s premises, as alleged.
1.
2. When plaintiff climbed onto the scaffolding, he was warned that it was dangerous to do so and that he should desist since the scaffolding had not yet been properly secured. [Page 354] Plaintiff was fully aware of the risks involved in climbing onto the scaffolding in that condition.
3.
4. Despite this knowledge, and whilst appreciating the risk, plaintiff nevertheless climbed onto the scaffolding and fell. 5. Defendant, therefore, pleads that plaintiff consented to be subjected to the risk of injury and that, in the premises, defendant is not liable for any loss or damage suffered by plaintiff. Pleadings/Amlers Precedents of Pleadings/V/Voluntary Associations Voluntary Associations Unincorporated association: An association which does not possess juristic personality may sue or be sued in its own name if its constitution grants it the power to litigate. Uniform rule 14(2) De Meillon v Montclair Society of the Methodist Church of SA 1979 (3) SA 1365 (D) Interim Ward S 19 Council v Premier, Western Cape Province 1998 (3) SA 1056 (C) Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council 2002 (6) SA 66 (T) An association with the object of acquiring gain which consists of more than twenty persons is illegal. Mitchell’s Plain Town Centre Merchants Association v McLeod [1996] 3 All SA 297 (A); 1996 (4) SA 159 (A) Incorporated association: An association having legal personality may sue and be sued in its own name. Whether an association has legal personality depends on the nature of the association, its constitution, its objects and activities. Morrison v Standard Building Society 1932 AD 229 Contracts: An association is a creature of its constitution and can be bound to a contract which is intra vires its constitution only. McCarthy v Constantia Property Owners’ Association [1999] 4 All SA 1 (C); 1999 (4) SA 847 (C) The association will be bound by a contract ultra vires its constitution where the other contracting party was induced to enter into such contract by the fraudulent non-disclosure of the fact that the contract would be ultra vires. Oranje Benefit Society v Central Merchant Bank Ltd 1976 (4) SA 659 (A) Delict: A voluntary association may be vicariously liable for delicts committed in its name and on its behalf. African National Congress v Lombo [1997] 1 All SA 697 (A); 1997 (3) SA 187 (A) Absence of locus standi : The party relying on the locus standi of an association must make the necessary allegations thereanent. Depending on the circumstances, lack of locus standi may be raised by way of either an exception or a special plea. Ahmadiyya AAIL (SA) v Muslim Judicial Council (Cape) 1983 (4) SA 855 (C)
Pleadings/Amlers Precedents of Pleadings/W/Waivers Waivers The effect of the waiver of a right is to extinguish that right and the concomitant obligation. Waiver is a question of fact. Laws v Rutherford 1924 AD 261 [Page 355] Onus: The onus rests on the party relying on waiver to allege and prove the waiver on a balance of probabilities. Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) Borstlap v Spangenberg 1974 (3) SA 695 (A) The onus remains on that party throughout the proceedings. In assessing the probabilities, the factual presumption that a party is not lightly deemed to have waived her or his rights should be borne in mind. Clear evidence of a waiver is required. Feinstein v Niggli 1981 (2) SA 684 (A) Procedure: The defence of waiver must be pleaded. It is only under exceptional circumstances that a court will consider the defence in the absence of a proper plea. Montesse Township & Investment Corp (Pty) Ltd v Gouws NO 1965 (4) SA 373 (A) Dale v Fun Furs (Pty) Ltd 1968 (3) SA 264 (O) Decision to abandon right: The defendant must allege and prove a decision by the plaintiff to abandon the right that is being asserted against the defendant. Road Accident Fund v Mothupi [2000] 3 All SA 181 (A); 2000 (4) SA 38 (SCA) This decision must have been conveyed to the defendant. Traub v Barclays National Bank Ltd 1983 (3) SA 619 (A) at 634 The decision to abandon can be: (a) (b)
an express abandonment of the right; or an implied abandonment. An implied abandonment is proved by conduct plainly inconsistent with an intention to enforce the right now relied on. Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) Borstlap v Spangenberg 1974 (3) SA 695 (A)
Knowledge of the right: The defendant must plead and prove that, when the alleged waiver took place, the plaintiff had full knowledge of the right, which right the plaintiff decided to abandon. Netlon Ltd v Pacnet (Pty) Ltd 1977 (3) SA 840 (A) at 873–874 Feinstein v Niggli 1981 (2) SA 684 (A) An error in making the decision to waive can vitiate the waiver only if the error is of such a nature that it would have vitiated a contract. ABSA Bank Ltd v The Master NNO [1998] 3 All SA 189 (N); 1998 (4) SA 15 (N) See : MISTAKES Election: An election generally involves a waiver: one right is waived when a party chooses to exercise another right which is inconsistent with the former. Administrator, Orange Free State v Mokopanele 1990 (3) SA 780 (A) Xenopoulos v Standard Bank of South Africa Ltd [2000] 2 All SA 494 (W); 2001 (3) SA 498 (W) In the case of an election, the defendant bears the same onus as in the case of a waiver. Feinstein v Niggli 1981 (2) SA 684 (A) ABSA Bank Ltd v The Master NNO [1998] 3 All SA 189 (N); 1998 (4) SA 15 (N) [Page 356] There is no general proposition that a party with more than one remedy at her or his disposal must elect at some given point which one to pursue and that, having elected one, he or she is assumed to have abandoned all others. Such a situation may well arise where the choice lies between two inconsistent remedies and the party commits heror himself unequivocally to one of them. Montesse Township & Investment Corp (Pty) Ltd v Gouws NO 1965 (4) SA 373 (A) Where a party to a contract has the right, on a breach of that contract, either to repudiate or abide by the contract, the election to abide by it constitutes a waiver of the right to cancel. Administrator, Orange Free State v Mokopanele 1990 (3) SA 780 (A) Delay: A delay in enforcing a right does not per se amount to a waiver. Zuurbekom Ltd v Union Corp Ltd 1947 (1) SA 514 (A) Mahabeer v Sharma NO 1985 (3) SA 730 (A)
On the other hand, failure to cancel a contract within a reasonable time after the breach may provide evidence of an election to abide by the contract. Palmer v Poulter 1983 (4) SA 11 (T) Mahabeer v Sharma NO 1983 (4) SA 421 (D) Waiver after cancellation: A debtor can rely on the waiver of a right to cancel between the date of the breach and the date of the purported cancellation. Conduct during that period which clearly manifests an election not to cancel may constitute waiver of the right to cancel. The position is different where the defendant relies on conduct subsequent to a valid cancellation. For instance, acceptance of a rental payment after the date of the cancellation of the lease agreement does not necessarily amount to a waiver of the cancellation. Desai v Mohamed 1976 (2) SA 709 (N) Pienaar v Southern Insurance Association Ltd 1983 (1) SA 917 (C) Similarly, if a purchaser cancels the sale and tenders return of the purchased goods and the seller refuses to accept the tender, the fact that the purchaser remains in possession of the goods, or even uses them, does not necessarily amount to a waiver. Thomas v Henry 1985 (3) SA 889 (A) Acceptance of waiver: It has been said that a waiver is incomplete until it is accepted by the debtor. This need not be alleged and proved by the defendant, because mere reliance on waiver implies an acceptance of the waiver. Union Free State Mining & Finance Corp Ltd v Union Free State Gold & Diamond Corp Ltd 1960 (4) SA 547 (W) Waiver not permitted: No-one can renounce a right contrary to law or a right introduced not only for her or his own benefit but in the public interest. Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719 734–735 South African Co-operative Citrus Exchange Ltd v Director-General Trade and Industry [1997] 2 All SA 321 (A); 1997 (3) SA 236 (SCA) De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) Non-variation clauses: If a contract cannot be amended due to a non-variation clause, a party may nevertheless waive any right flowing from that contract. Van As v Du Preez 1981 (3) SA 760 (T) [Page 357] The same applies where a statutory provision prevents the amendment of a contract unless certain formalities have been complied with. Venter v Birchholtz 1972 (1) SA 276 (A) PRECEDENTS Plea – of waiver Defendant admits that, in terms of the agreement between the parties, he was obliged to [specify]. At all material times, plaintiff was fully aware of his rights in terms of the agreement.
1. 2.
3. On [date] at [place], plaintiff, by implication, waived his rights to and in respect of the obligations by defendant by [specify]. Pleadings/Amlers Precedents of Pleadings/W/Warranty Against Eviction Warranty Against Eviction A purchaser has, in the following circumstances, a claim against the seller for a breach of the legally implied warranty against eviction: (a) The purchaser must have been evicted. This does not necessarily mean a physical loss but includes a case where an unassailable claim to the goods was compromised. Lammers & Lammers v Giovannoni 1955 (3) SA 385 (A) Olivier v Van der Bergh 1956 (1) SA 802 (C) Sirius Motor Corporation v Kajee [1997] 2 All SA 159 (D) (b) The purchaser must have given the seller proper notice of the proceedings, calling on the seller for assistance in defending the case Westeel Engineering (Pty) Ltd v Sidney Clow & Co Ltd 1968 (3) SA 458 (T) York & Co (Pvt) Ltd v Jones NO (2) 1962 (1) SA 72 (SR) and the purchaser must have conducted an unsuccessful virilis defensio against the claim.
York & Co (Pvt) Ltd v Jones NO (1) 1962 (1) SA 65 (SR) If no notice was given or no virilis defensio conducted, the purchaser will have to establish that the claimant’s title was unassailable. Lammers & Lammers v Giovannoni 1955 (3) SA 385 (A) Garden City Motors (Pty) Ltd v Bank of the OFS Ltd 1983 (2) SA 104 (N) Relief: An evicted purchaser may claim the purchase price and interest plus any increase in the value of the thing as at the date of eviction. Alpha Trust (Edms) Bpk v Van der Watt 1975 (3) SA 734 (A) Katzeff v City Car Sales (Pty) Ltd 1998 (2) SA 644 (C) Where the purchase price has not yet been paid, the purchaser may sue for damages. The measure is the difference between the price and the value of the thing at the date of eviction. An increase in value, which is due to circumstances that were not in the contemplation of the parties or could not reasonably have been contemplated at the time of making the contract, cannot be recovered. Watt v Standard Bank National Industrial Credit Corp 1982 (2) SA 47 (D) [Page 358] If the warranty against eviction has been excluded, the purchaser is nevertheless entitled to the repayment of the purchase price. Vrystaat Motors v Henry Blignaut (Edms) Bpk [1996] 1 All SA 249 (A); 1996 (2) SA 448 (A) Cf Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA); 2002 (6) SA 453 (SCA) Successive sales: In the case of successive sales, the warranty binds the seller to the purchaser to whom he sold and not to anyone else. Repayment of the price to the subsequent seller who was evicted, or acceptance by the seller of the obligation tomake such repayment, is equated with the seller’s (the original purchaser’s) own eviction. Olivier v Van der Bergh 1956 (1) SA 802 (C) PRECEDENTS Claim – for repayment 1. On [date] at [place], the parties entered into an oral agreement in terms of which plaintiff purchased from defendant a [describe] motor car. 2. On [date], defendant delivered the said motor car to plaintiff who, on the same date, paid to defendant the full purchase price of [amount]. 3. On [date], plaintiff was evicted by [name] who claimed to be the owner of the vehicle in case number [specify] in this honourable court. 4. On [date], plaintiff gave defendant notice of the [name] claim and requested him to assist in defending the claim. 5. Despite request, defendant failed so to assist plaintiff who, nevertheless, unsuccessfully but strenuously defended the application. In the alternative, plaintiff avers that [name]’s claim to and in respect of the motor vehicle was unassailable. On [date], the honourable court ordered that possession of the vehicle be given to [name].
6.
Pleadings/Amlers Precedents of Pleadings/W/Water Water The Water Act 54 of 1956 Repealed Act Act 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998 Act has been repealed by section 163(1) of the National Water Act 36 of 1998. Useful precedents cannot be given because the water law has become an administrative matter. For precedents, See : WATER in South African Encyclopaedia of Forms and Precedents Pleadings/Amlers Precedents of Pleadings/W/Wild Animals
Wild Animals Ownership: See : Horak NO v Smit [1999] 4 All SA 405 (T) Liability for damage: The edictum de feris provides for compensation for damage done by wild animals kept in captivity by a defendant. Whether negligence is part of the cause of action appears to be a moot point. Bristow v Lycett 1971 (4) SA 223 (RA) Zietsman v Van Tonder 1989 (2) SA 484 (T) A distinction is drawn between, on the one hand, the case of the introduction of wild animals and, on the other, the case of wild animals naturally occurring [Page 359] on a piece of land. An owner of ground who introduces a danger in the shape of wild or destructive animals or noxious plants may be liable to others for damage if the animals stray and cause damage. However, no duty rests on the owner of ground on which there are wild animals to prevent such animals from leaving that ground. Mbhele v Natal Parks, Game & Fish Preservation Board 1980 (4) SA 303 (D) A defendant can escape liability by proving that the plaintiff was a trespasser, that the damage was caused by the unlawful act of a third party, by a third party’s animal or by casus fortuitus or vis maior. Bristow v Lycett 1971 (4) SA 223 (RA) PRECEDENTS Claim – for damages Defendant is the owner of the farm [name] situated at [location]. On this farm, defendant has introduced certain wild ostriches which do not naturally occur there.
1. 2.
3. On [date], one of the ostriches escaped from defendant’s farm and attacked plaintiff causing him the following injuries: [detail]. As a result of his injuries, plaintiff suffered damages in the amount of [amount] calculated as follows:
4.
[detail]. Pleadings/Amlers Precedents of Pleadings/W/Wills Wills Disputes surrounding wills are normally not the subject of action proceedings and little is to be said on the subject in this work. Parties: In litigation concerning wills, special care should be taken to join all interested and potentially interested parties. Fakroodeen v Fakroodeen NNO 1971 (3) SA 395 (D) The Master of the High Court also has an interest and, in general, whilst he or she has to be joined, no relief is sought against the Master. Onus: A will which is prima facie regular is presumed to be valid and the onus of establishing its invalidity rests on the person challenging it. It follows from this principle that the party alleging: (a)
forgery of the will; Kunz v Swart 1924 AD 618
(b) lack of mental capacity on the part of the testator; Tregea v Godart 1939 AD 16 Geldenhuys v Borman NO 1990 (1) SA 161 (E) See : MENTAL INCAPACITY (c)
a failure to have complied with the prescribed statutory formalities; Thaker v Naran 1993 (4) SA 665 (N) Mdlulu v Delarey [1998] 1 All SA 434 (W)
carries the burden of proof. [Page 360]
Interpretation: The interpretation of a will is normally dependent on legal argument only. In such a case, application proceedings are indicated. The same applies where the admissible evidence is common cause. If the admissible evidence is not common cause, action proceedings ought to be followed. The interpretation of a will cannot be decided on exception, unless the court is satisfied that there is no admissible extrinsic evidence which may have a bearing on the interpretation of the will. Rectification: A court may rectify a will if it appears ex facie the document to be a valid will. Rectification may take place by the addition or deletion of words in order to give effect to the true intention of the testator. Ex parte Van der Spuy NO 1966 (3) SA 169 (T) Van Zyl v Esterhuyse NO 1985 (4) SA 726 (C) Welldon v Andrews 1982 (2) SA 44 (N) See : RECTIFICATION PRECEDENTS Claim 1. On [date], the late [name] (the testator) purported to execute a will, a copy of which is attached hereto and marked “A”. 2. At the time of execution of the will, the testator was not in a mental state fit to execute a valid will, in that he was at that time suffering from [specify] to such a degree that he was unable to appreciate the nature or contents of his acts. 3. The testator left no other valid will. WHEREFORE plaintiff claims: (a) (b)
An order declaring the will of the testator dated [date] to be null and void. An order declaring that the testator died intestate.
Pleadings/Amlers Precedents of Pleadings/W/Workmen’s Compensation Workmen’s Compensation Statute: The Compensation for Occupational Injuries and Diseases Act 130 of 1993 replaced the Workmen’s Compensation Act 30 of 1941 Repealed Act Act 30 of 1941 has been repealed by s 100 of Act 130 of 1993 . The general scope of the new Act does not differ much from that of the repealed Act. Its object is to provide, from a compensation fund, compensation for disablement or death caused by or resulting from occupational injuries (caused by accidents) or for occupational diseases sustained or contracted by employees in the course of their employment. Compensation is payable by either the director-general or, in the case of an employer individually liable, by that employer. The procedure to be followed in claiming is laid down in the Act and falls beyond the ambit of this work. The provisions of the Act are not applicable to all workmen or all employers but only to those falling within the scope of these terms as defined in the Act. In this note, the focus is on the impact of the Act on common-law relationships. Accident: An “occupational injury” is a personal injury sustained as a result of an “accident”. “Accident” means an accident arising out of and in the course of an employee’s employment and resulting in personal injury to, or illness or the death of the employee. Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 1 Rauff v Standard Bank Properties 2002 (6) SA 693 (W) [Page 361] Fault is not an element of the definition and an intentional wrong committed against the employee is also included. Langeberg Foods Ltd v Tokwe [1997] 3 All SA 43 (E) at 49 Right of employee to compensation: If an employee meets with an accident resulting in her or his disablement or death, such employee is or the dependants of such employee are, subject to the provisions of the Act, entitled to the benefits provided for and prescribed in the Act. Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 22(1) Liability for payment of compensation: If an employee is entitled to compensation in terms of the Act, the director-general or the individually liable employer, as the case may be, is liable for the payment of such compensation. Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 29
Substitution of compensation for other legal remedies: No action lies by an employee, or any dependant of an employee, for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee’s employer and no liability for compensation on the part of such employer arises save under the Act. Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 35(1) Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2) SA 1 (CC) Recovery of damages and compensation paid from third parties: If a third party – ie, someone other than an employer – is liable for damages caused by an occupational injury or disease in respect of which compensation is payable, (a)
the employee may claim compensation in terms of the Act and may also institute action for damages against the third party; and
(b) the director-general may institute action (or intervene in the proceedings under (a)) against the third party for the recovery of compensation that the director-general is obliged to pay in terms of the Act. In awarding damages to an employee, a court must have regard to (ie, deduct) compensation paid in terms of the Act. The amount recoverable under (b) may not exceed the full amount of damages suffered by the employee. The overriding principles are that the third party is not liable for more than the amount the employee could claim from her or him but for the Act and that the employee not entitled to double compensation. At the same time, the total liability of the third party is not reduced by virtue of this provision which merely deals with the division between the employee and the director-general of the amount payable by the third party. Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 37 Bonheim v South British Ins Co Ltd 1962 (3) SA 259 (A) Klaas v Union & SWA Insurance Co Ltd 1981 (4) SA 562 (A) at 583 Senator Versekeringsmaatskappy Bpk v Bezuidenhout 1987 (2) SA 361 (A) Where the employee was partly negligent and apportionment of damages has to take place under the Apportionment of Damages Act 34 of 1956, as between the employee and the third party, the question of whether the whole amount payable to the employee must be deducted from the damages awarded to him, and not merely the portion corresponding to the degree to which the third party was at fault, is at present a moot point. Ngcobo v Santam Insurance Co Ltd 1994 (2) SA 478 (T) Maphiri v Road Accident Fund 2002 (6) SA 383 (W) [Page 362] Notice: The workman must, in accordance with the procedure laid down, notify the director-general (or the employer individually liable) of the intention to institute proceedings against a third party and inform the director-general if he decides to abandon or settle the claim. Compliance with these requirements must be alleged in the particulars of claim. Mutual & Federal Insurance Co Ltd v Kok 1985 (2) SA 225 (TkA) PRECEDENTS Claim – by workman under MVA Act Follow precedents under MOTOR VEHICLE ACCIDENTS and add the following additional allegations: 1. Plaintiff, at the time of the collision, was (a) a workman as defined in Act 130 of 1993; (b) injured in the course of his employment with [X], an employer as defined in Act 130 of 1993. 2. Plaintiff received compensation in terms of Act 130 of 1993 for his injuries in the sum of [Ry]. 3. Defendant would have been liable to compensate plaintiff for all his damages amounting to [Rx], had it not been for the provisions of Act 130 of 1993. Plaintiff duly informed the director-general of his intention to institute these proceedings. Defendant is, therefore, liable to plaintiff in the sum of [Rx–Ry]. Pleadings/Amlers Precedents of Pleadings/Table of Cases Table of Cases A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
4. 5.
Page 1166 Roodekrans CC and others v Nedcor Bank Ltd [2001] 2 All SA 666 (W)
123
Pleadings/Amlers Precedents of Pleadings/Table of Cases/A A A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C)
135
A-Team Drankwinkel BK v Botha en ’n Ander NNO 1994 (1) SA 1 (A)
118
AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A)
106
AAA Brick Co (Pty) Ltd v Coetzee [1996] 1 All SA 23 (B); 1996 (3) SA 578 (B)
312
Aarwater (Edms) Bpk v Venter 1982 (3) SA 974 (T)
333
AB, Ex parte 1910 TPD 1332
19
Abakor v Crafcor Farming t/a Riversdale Feedlot 2000 (1) SA 973 (N)
194
Abbott v Von Theleman 1997 (2) SA 848 (C)
318
Abbott Laboratories v UAP Crop Care (Pty) Ltd [1999] 1 All SA 502 (C); 1999 (3) SA 624 (C) 338 Abraham v City of Cape Town 1995 (2) SA 319 (C)
121
Abraham v Du Plessis 1962 (3) SA 162 (T)
68
ABSA Bank Bpk v Coetzee [1998] 1 All SA 1 (SCA)
71
ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA)
5, 55
ABSA Bank Bpk v Ons Beleggings BK [2000] 3 All SA 199 (A); 2000 (4) SA 27 (SCA)
57
ABSA Bank Bpk v Saunders 1997 (2) SA 192 (NC)
56
ABSA Bank Bpk h/a Volkskas Bank v Retief [1999] 1 All SA 68 (NC); 1999 (3) SA 322 (NC) ABSA Bank Ltd v Boksburg Transitional Local Council (Government of the Republic of South Africa Third Party) 1997 (2) SA 415 (W) ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2001] 1 All SA 1 (A); 2001 (1) SA 372 (SCA) 348 ABSA Bank Ltd v Davidson [2000] 1 All SA 355 (SCA); 2000 (1) SA 1117 (SCA)
56 336
ABSA Bank Ltd v De Klerk [1998] 4 All SA 674; 1999 (1) SA 861 (W) ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA); 2003 (1) SA 176 (SCA)
329 167 223, 259, 260
ABSA Bank Ltd v IW Blumberg & Wilkinson [1997] 2 All SA 307 (A); 1997 (3) SA 669 (SCA)
56, 166, 285
ABSA Bank Ltd v Leech [2001] 4 All SA 55 (A); 2001 (4) SA 132 (SCA) ABSA Bank Ltd v Scharrighuisen [2000] 1 All SA 318 (C); 2000 (2) SA 998 (C)
86 329
ABSA Bank Ltd v Standard Bank of SA Ltd [1997] 4 All SA 673 (A); 1998 (1) SA 242 (SCA) ABSA Bank Ltd v The Master NNO [1998] 3 All SA 189 (N); 1998 (4) SA 15 (N) ABSA Bank Ltd v Van de Vyver NO [2002] 3 All SA 425 (A); 2002 (4) SA 397 (SCA) ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC [2003] 1 All SA 401 (SCA); 2003 (1) SA 401 (SCA) 270 ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C) ABSA Bank Ltd t/a Volkskas Bank v Page [2002] 1 All SA 99 (A); 2002 (1) SA 617 (SCA) ABSA Insurance Brokers (Pty) Ltd v Luttig NO [1997] 3 All SA 267 (A); 1997 (4) SA 229 (SCA) Acacia Mines Ltd v Boshoff 1958 (4) SA 330 (A) Acs v Acs 1981 (2) SA 795 (W)
56, 87, 312 245, 355 334
262, 263 284
186 264
114 Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W)
275, 276, 277
Adenia Eiendomme (Edms) Bpk v LPD Ondernemings BK [1997] 3 All SA 85 (T) Adfin (Pty) Ltd t/a Rand Trust v Fashion Shoe Centre (Pty) Ltd 1990 (4) SA 371 (C)
105, 163 123, 230
Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Ltd 1976 (1) SA 530 (T) 337
Adjust Investments (Pty) Ltd v Wiid 1968 (3) SA 29 (O)
313
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) Administrateur, Transvaal v JD van Niekerk en Genote BK 1995 (2) SA 241 (A)
206
Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A)
223
Administrator, Natal v Edouard 1990 (3) SA 581 (A)
241
Administrator, Orange Free State v Mokopanele 1990 (3) SA 780 (A) Aegis Insurance Co Ltd v Consani NO 1996 (4) SA 1 (A); [1996] 3 All SA 547 (A) Aercrete SA (Pty) Ltd v Skema Engineering Co (Pty) Ltd 1984 (4) SA 814 (D)
355, 356 202 93
Aetiology Today CC v Van Aswegen 1992 (1) SA 807 (W) Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd [2002] 3 All SA 369 (A); 2002 (4) SA 681 (SCA) African Consolidated Agencies (Pty) Ltd v Siemens Nixdorf Information Systems (Pty) Ltd 1992 (2) SA 739 (C) African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A)
222, 260
194 95
66
African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) African Guarantee & Indemnity Co Ltd v Thorpe 1933 AD 330 African Life Assurance Co Ltd v NBS Bank Ltd [2000] 1 All SA 545 (W); 2001 (1) SA 432 (W) 59 African National Congress v Inkatha Freedom Party [1999] 3 All SA 47 (W) African National Congress v Lombo [1997] 1 All SA 697 (A); 1997 (3) SA 187 (A) African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A) Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA); 2002 (6) SA 21 (SCA) Ahmadiyya AAIL (SA) v Muslim Judicial Council (Cape) 1983 (4) SA 855 (C) Aida Uitenhage CC v Singapi 1992 (4) SA 675 (E) Air-kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980 (3) SA 917 (A)
87, 88 302 329
133 354 303 289 186, 224 354 163 270
Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd [2002] 3 All SA 117 (A); 2002 (3) SA 346 (SCA) 299 Aktiebolaget Hässle v Triomed (Pty) Ltd [2002] 4 All SA 138 (SCA); 2003 (1) SA 155 (SCA) Alberts v Engelbrecht 1961 (2) SA 644 (T) Albertus v Jacobs 1975 (3) SA 836 (W) Albertyn v Kumalo 1946 WLD 529 Aldeia v Coutinho 1997 (4) SA 295 (O) Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T) Alex Carriers (Pty) Ltd v Kempston Investments (Pty) Ltd 1998 (1) SA 662 (E) Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A)
280 353 128 187 183 6, 7 64 96, 233
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1977 (4) SA 310 (T) Algoa Milling Co Ltd v Arkell & Douglas 1918 AD 145 Aliwal North Municipality v Crawford 1964 (1) SA 344 (A) Alpha Trust (Edms) Bpk v Van der Watt 1975 (3) SA 734 (A) Altech Data (Pty) Ltd v MB Technologies (Pty) Ltd 1998 (3) SA 748 (W) Alum-Phos (Pty) Ltd v Spatz [1997] 1 All SA 616 (W) Amalgamated Banks of South Africa Bpk v de Goede [1997] 2 All SA 427 (A); 1997 (4) SA 66 (SCA) 237 Amar v Amar [1999] 2 All SA 376 (W); 1999 (3) SA 604 (W) Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk 1984 (3) SA 760 (N); 1986 (1) SA 448 (A) 115, 220 Amod v Andrews Bakery (Pty) Ltd 1965 (2) SA 433 (T) Amod Salie v Ragoon 1903 TS 100 Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 (3) SA 42 (A) Andrews v Lidaks 1971 (1) SA 892 (W) Andy’s Electrical v Laurie Sykes (Pty) Ltd 1979 (3) SA 341 (N) APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) Appleton v Harnischfeger Corporation 1995 (2) SA 247 (A) Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) Arendse v Roode 1989 (1) SA 763 (C) Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) Argus Printing & Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) Argus Printing & Publishing Co Ltd v Rutland 1953 (3) SA 446 (C) Argus Printing & Publishing Co Ltd v Weichardt 1940 CPD 453 Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)
96, 101 189 37 357 32, 33 93
152
266 261 63 172 334, 335 57, 71 110 157 190 133, 135, 136 133 137 135 166
Aris Enterprises (Finance) (Pty) Ltd v Waterberg Koelkamers (Pty) Ltd 1977 (2) SA 425 (A) Arthur v Bezuidenhout & Mieny 1962 (2) SA 566 (A) Asa Investments (Pty) Ltd v Smit 1980 (1) SA 897 (C) Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N) Aspeling NO v Joubert 1919 AD 167 Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit [2000] 2 All SA 115 (A); 2000 (2) SA 789 (SCA) 295 Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A) 269, 290 Atkinson Oates Motors Ltd v Trust Bank of Africa Ltd 1977 (3) SA 188 (W) Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1978 (4) SA 696 (T) Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) Atteridgeville Town Council v Livanos t/a Livanos Brothers Electrical 1992 (1) SA 296 (A) Attorney-General, Namibia: In re Corporal Punishment by Organs of State, Ex parte 1991 (3) SA 76 (NmSC) 45 Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund v Tony Allem (Pty) Ltd 1990 (2) SA 665 (A) 51 Aussenkehr Farms (Pty) Ltd v Trio Transport CC [2002] 3 All SA 309 (A); 2002 (4) SA 483 (SCA) 67, 295
268 257 330 28, 156 7
7 338 93, 277, 343 33
Autolec Ltd v Du Plessis 1965 (2) SA 243 (O) Avis v Verseput 1943 AD 331
167 155
Pleadings/Amlers Precedents of Pleadings/Table of Cases/B B B & B Hardware Distributors (Pty) Ltd v Administrator, Cape 1989 (1) SA 957 (A) B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) Babha v Bothner & Sons Ltd 1951 (1) SA 12 (T) Badenhorst v Marks 1911 TPD 144 Badenhorst v Prinsloo 1967 (1) SA 212 (O) Badenhorst v Van Rensburg 1985 (2) SA 321 (T) Bailes v Highveld 7 Properties (Pty) Ltd [1998] 3 All SA 205 (N); 1998 (4) SA 42 (N) Baker v Probert 1985 (3) SA 429 (A) Baking Investments (Pty) Ltd v Britz 1978 (3) SA 1067 (T) Baldeo v Minister of Safety and Security, RSA [1998] 1 All SA 285 (D) Baldric Farms (Pty) Ltd v Wessels 1994 (3) SA 425 (A) Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA) Bank of Lisbon & SA Ltd v De Ornelas 1988 (3) SA 580 (A) Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A) Bank Windhoek Bpk v Rajie 1994 (1) SA 115 (A) Bankorp Ltd v Hendler 1992 (4) SA 375 (W) Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W) Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A) Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A) Baring Eiendomme BK v Roux [2001] 1 All SA 399 (SCA) Barker NO v Chadwick 1974 (1) SA 461 (D) Barkhuizen v Forbes 1998 (1) SA 140 (E) Barlow Rand Ltd v Lebos 1985 (4) SA 341 (T) Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos 1985 (4) SA 341 (T) Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Self-Arc (Pty) Ltd 1986 (4) SA 488 (T) 68 Barlows Tractor Co (Pty) Ltd v Townsend [1996] 2 All SA 105 (A); 1996 (2) SA 869 (A) Barnes v Union & SWA Insurance Co Ltd 1977 (3) SA 502 (E)
166 56, 89, 263 120 211 235 95 30 103 116 287 8 119, 120 185 109 270 56 192 174 283 163 291 155 223 48, 52
329 237
Page Barnett v Abe Swersky & Associates 1986 (4) SA 407 (C) Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd [1999] 1 All SA 285 (A); 1999 (1) SA 831 (SCA) 71, 72 Basson v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1957 (3) SA 490 (C) 51 Basson v Chilwan 1993 (3) SA 742 (A) Bata Ltd v Face Fashions CC 2001 (1) SA 844 (SCA) Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A) Beaumont v Beaumont 1987 (1) SA 967 (A)
105
304 339 260
151 Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A) Beckwith v Foundation Investment Co 1961 (4) SA 510 (A) Bedford v Uys 1971 (1) SA 549 (C) Beecham Group plc v Southern Transvaal Pharmaceutical Pricing Bureau (Pty) Ltd 1993 (1) SA 546 (A) 338 Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd [1996] 1 All SA 509 (C); 1996 (2) SA 537 (C) 99 Bekker v Oos-Vrystaat Kaap Koöperasie Bpk [2000] 3 All SA 301 (A) Bekker NO v Duvenhage 1977 (3) SA 884 (E) Bell, Van Niekerk & Van Niekerk v Oudebaaskraal (Edms) Bpk 1985 (1) SA 127 (C) Bellairs v Hodnett 1978 (1) SA 1109 (A) Benade v Boedel Alexander 1967 (1) SA 648 (O) Benede Sand Boerdery (Edms) Bpk v Virginia Munisipaliteit 1992 (4) SA 176 (A) Benjamin v Gurewitz 1973 (1) SA 418 (A) Benlou Properties (Pty) Ltd v Vector Graphics (Pty) Ltd 1993 (1) SA 179 (A) Bennett v Minister of Police 1980 (3) SA 24 (C)
238 163 189
186, 322 189 129 102, 285, 290 15 178 298 218 43, 44, 190, 191
Benoni Town Council v Minister of Agricultural Credit & Land Tenure 1978 (1) SA 978 (T) Bensimon v Barton 1919 AD 13 Benson v Robinson & Co (Pty) Ltd 1967 (1) SA 420 (A) Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) Benson v Walters 1984 (1) SA 73 (A) Bentley and another v McPherson [1999] 2 All SA 89 (E); 1999 (3) SA 854 (E) Bergkelder v Delheim Wines (Pty) Ltd 1980 (3) SA 620 (A) Bergkelder, Die v Delheim Wines (Pty) Ltd 1980 (3) SA 1171 (C) Berman v Teiman 1975 (1) SA 756 (W) Berman & Fialkov v Lumb [2002] 4 All SA 432 (C); 2003 (2) SA 677 (C) Berman Bros (Pty) Ltd v Sodastream Ltd 1986 (3) SA 209 (A) Bertelsmann v Per 1996 (2) SA 375 (T) Bester v Van Niekerk 1960 (2) SA 779 (A) Bester v Van Zyl 1972 (4) SA 580 (T) Bestuursraad van Sebokeng v M&K Trust & Finansiële Maatskappy (Edms) Bpk 1973 (3) SA 376 (A) 177 Beukes v Claassen 1986 (4) SA 495 (O) Beurain h/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921 (O) Beyleveld NO v Southern Life Association Ltd 1987 (4) SA 238 (C) Bezuidenhout v Otto 1996 (3) SA 339 (W) Bezuidenhout NO v Eskom [2003] 1 All SA 411 (SCA); 2003 (3) SA 83 (SCA) Bhyat’s Departmental Store (Pty) Ltd v Dorklerk Investments (Pty) Ltd 1975 (4) SA 881 (A) Bibi v Variawa 1965 (4) SA 675 (N) Big Dutchman (SA) (Pty) Ltd v Barclays National Bank Ltd 1979 (3) SA 267 (W)
156 311 140 316 49, 226, 294 41 69 275, 276 29 49 277, 338 126 271 219
67 256 22 95, 96 348 187 61 55
Bill Harvey’s Investment Trust (Pty) Ltd v Oranjegezicht Citrus Estates (Pty) Ltd 1958 (1) SA 479 (A) 184 Biotech Laboratories (Pty) Ltd v Beecham Group PLC [2002] 3 All SA 652 (A); 2002 (4) SA 249 (SCA) 111 Bird v Sumerville 1961 (3) SA 194 (A) 163
Bischofberger v Van Eyk 1981 (2) SA 607 (W)
189
Bisschop v Stafford 1974 (3) SA 1 (A) BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) Blaikie-Johnstone v P Hollingsworth (Pty) Ltd 1974 (3) SA 392 (D) Bloemfontein Town Council v Richter 1938 AD 195
172, 233, 234, 235 50, 166, 335 302 265
Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) Blower v Van Noorden 1909 TS 890
85 24
Blue Circle Projects (Pty) Ltd v Klerksdorp Municipality 1990 (1) SA 469 (T) Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (SCA); 2001 (3) SA 884 (SCA) 276, 278, 342 Blyth v Van den Heever 1980 (1) SA 191 (A) BMW Financial Services (SA) (Pty) Ltd v Mogotsi [1999] 4 All SA 415 (W); 1999 (3) SA 384 (W) BMW Financial Services (SA) (Pty) Ltd v Rathebe [2002] 2 All SA 571 (W); 2002 (2) SA 368 (W) BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C)
292
34
224, 241
120 120
BoE Bank Ltd v Ries [2002] 2 All SA 247 (A); 2002 (2) SA 39 (SCA) Boland Bank Bpk v Steele 1994 (1) SA 259 (T) Bonheim v South British Ins Co Ltd 1962 (3) SA 259 (A) Bonne Fortune Beleggings Bpk v Kalahari Salt Works (Pty) Ltd 1974 (1) SA 414 (NC) Bonnet v Department of Agricultural Credit & Land Tenure 1974 (3) SA 737 (T) Bonnet v Schofield 1989 (2) SA 156 (D) Boompret Investments (Pty) Ltd v Paardekraal Concession Store (Pty) Ltd 1990 (1) SA 347 (A) 169 Bopape v Moloto [1999] 4 All SA 277 (T); 2000 (1) SA 383 (T) Borcherds v Estate Naidoo 1955 (3) SA 78 (A) Borgin v De Villiers 1980 (3) SA 556 (A) Born v Born 1970 (4) SA 560 (C) Borstlap v Spangenberg 1974 (3) SA 695 (A) Boshoff v Union Government 1932 TPD 345 Boshoff v Van Zyl 1938 CPD 464 Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd 1984 (2) SA 24 (SWA) 64, 235 Bosman NO v Tworeck 2000 (3) SA 590 (C) Boswell v Union Club of SA (Durban) 1985 (2) SA 162 (D) Botes v Toti Development Co (Pty) Ltd 1978 (1) SA 205 (T) Botes v Van Deventer 1966 (3) SA 182 (A) Botha v Fick 1995 (2) SA 750 (A) Botha v Guardian Assurance Co Ltd 1949 (2) SA 223 (G)
157, 341 222 303, 333 361 334 178 304
156 15 142 20 355 169 239
318 192 87 224 66 323
Botha v Mazeka 1981 (3) SA 191 (A) 270
Botha v Potch Motors (Edms) Bpk 1963 (1) SA 279 (T)
118
Botha v Smit 1976 (4) SA 885 (A)
163
Botha v Themistocleous 1966 (1) SA 107 (T) Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A)
109
Botha NO v EM Mchunu & Co 1992 (4) SA 740 (N)
226
Bouwer v Adelford Motors (Pty) Ltd 1970 (4) SA 286 (E) Bouwer v Harding [1997] 3 All SA 415 (SE); 1997 (4) SA 1023 (SE) Bouwer v Stadsraad van Johannesburg 1979 (3) SA 37 (A)
Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd [1996] 1 All SA 383 (T); 1996 (2) SA 393 (T) 258 Bowman NO v Fidelity Bank Ltd [1997] 1 All SA 317 (A); 1997 (2) SA 35 (SCA)
51
353
86, 87
Boyce NO v Bloem 1960 (3) SA 855 (T)
263
Brand v Minister of Justice 1959 (4) SA 712 (A)
40
Bray v Protea Assurance Co Ltd 1990 (1) SA 776 (T)
250
Brayshaw v Schoeman 1960 (1) SA 625 (A) Braz v Afonso [1997] 4 All SA 428 (SCA); 1998 (1) SA 573 (SCA)
163 69
Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A)
184, 194
Brenner v Botha 1956 (3) SA 257 (T)
190
Brett v Schultz 1982 (3) SA 286 (SE) Bridgestone Firestone Maxiprest Ltd v Taylor [2003] 1 All SA 299 (N)
140 304
Brisley v Drotsky 2002 (4) SA 1 (SCA)
186
Bristow v Lycett 1971 (4) SA 223 (RA) British Kaffrarian Savings Bank Society v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1978 (3) SA 242 (E) 50 Brits v Coetzee 1967 (3) SA 570 (T)
358, 359
219
Britz v Weideman 1946 OPD 144 Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A) Broude v McIntosh 1998 (2) SA 555 (SCA); 1998 (3) SA 60 (SCA)
285 226 46, 241
Brown v Hoffman 1977 (2) SA 556 (NC)
44, 45
Brown v Vlok 1925 AD 56
314
Bruce NO v Berman 1963 (3) SA 21 (T)
51
Brudd Lines (Pty) Ltd v Badsey (1) 1973 (3) SA 972 (T)
147 66
Bull v Taylor 1965 (4) SA 29 (A) Buls v Tsatsarolakis 1976 (2) SA 891 (T) Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) 275, 276 Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) Burt NO v National Bank of SA Ltd 1921 AD 59
176
333
Bowater v Rowley Regis Corp 1944 1 KB 476
Brummer v Gorfil Brothers Investments (Pty) Ltd [1999] 2 All SA 127 (SCA); 1999 (3) SA 389 (SCA) Bruwer v Joubert 1966 (3) SA 334 (A)
49
20 61, 62, 192, 310, 311 241
307
335 Buthelezi v Poorter 1975 (4) SA 608 (W)
137
Buthelezi v South African Broadcasting Corporation [1998] 1 All SA 147 (D); 1997 (12) BCLR 1733 (D) 139 Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd [1996] 3 All SA 1 (A); 1996 (4) SA 19 (SCA) 86, 87, 226 Pleadings/Amlers Precedents of Pleadings/Table of Cases/C C C v C 1958 (3) SA 547 (SR)
191
C & T Products (Pty) Ltd v MH Goldschmidt (Pty) Ltd 1981 (3) SA 619 (C)
207
Caldeira v Ruthenberg [1999] 1 All SA 519 (A); 1999 (4) SA 37 (SCA)
167
Calder-Potts v McMillan 1956 (3) SA 360 (E)
24
Caledon & Suid-Westelike Distrikte Eksekuteurs-Kamer Bpk v Wentzel 1972 (1) SA 270 (A) 270
California Spice and Marinade (Pty) Ltd in re: Bankorp v California Spice and Marinade (Pty) Ltd; Fair O’Rama Property Investments CC; Tsaperas; and Tsaperas [1997] 4 All SA 317 (W) 79 Callender-Easby v Grahamstown Municipality 1981 (2) SA 810 (E)
175
Callinicos v Burman 1963 (1) SA 489 (A)
222, 324, 325
Cambridge Plan AG v Moore 1987 (4) SA 821 (D)
93
Cape Killarney Property Investment (Pty) Ltd v Mahamba [2001] 4 All SA 479 (A); 2001 (4) SA 1222 (SCA) 171 Cape Metropolitan Council v Graham [2001] 1 All SA 215 (A); 2001 (1) SA 1197 (SCA)
257
Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A)
81
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO [2001] 1 All SA 627 (W); 2001 (2) SA 182 (W) 105 Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO 2002 (3) SA 752 (SCA)
327
Cape Town Council v Benning 1917 AD 315
8
Cape Town Municipality v Bakkerud [2000] 3 All SA 171 (A); 2000 (3) SA 1049 (SCA)
223
Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) 274, 275, 276, 277
Card v Sparg 1984 (4) SA 667 (E)
310, 311
Carlis v McCusker 1904 TS 917
87
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
223
Carroll v Menzies 1961 (4) SA 672 (N)
19
Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A) Cash Converters Southern Africa (Pty) Ltd v Rosebud Western Province Franchise (Pty) Ltd [2001] 3 All SA 179 (C); 2002 (1) SA 708 (C) Castell v De Greef 1993 (3) SA 501 (C) Castell v De Greef 1994 (4) SA 408 (C) Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A); 1998 (3) SA 947 (SCA) 94, 274, 275, 278 Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) Cecil Jacobs (Pty) Ltd v Macleod & Sons 1966 (4) SA 41 (N) CGEE Alsthom Equipments et Enterprises Electriques v GKN Sankey (Pty) Ltd 1987 (1) SA 81 (A) 97 Chamotte (Pty) Ltd v Carl Coetzee (Pty) Ltd 1973 (1) SA 644 (A) Chapman Dyer Miles & Moorhead Inc v Highmark Investment Holdings CC [1997] 4 All SA 247 (D); 1998 (3) SA 608 (D) 49
348 334 241 241
133, 137 334
233
Chapmans Peak Hotel (Pty) Ltd v Jab and Annalene Restaurants CC t/a O’Hagans [2001] 4 All SA 415 (C) 266 Chauke v Santam Ltd 1997 (1) SA 178 (A) Chelsea West (Pty) Ltd v Roodebloem Investments (Pty) Ltd 1994 (1) SA 837 (C)
32
Chetty v Naidoo 1974 (3) SA 13 (A) Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 Christian Education SA v Minister of Education 2000 (4) SA 757 (CC)
120, 350, 351 212, 213 45
Chrysafis v Katsapas 1988 (4) SA 818 (A) Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd [2002] 2 All SA 525 (A); 2002 (2) SA 447 (SCA) Ciliza v Minister of Police 1976 (4) SA 243 (N)
250
79, 109 215
City Council of Pretoria v De Jager [1997] 1 All SA 635 (SCA); 1997 (2) SA 46 (SCA) City Council of the City of Durban v Rumdel Construction (Pty) Ltd [1997] 3 All SA 20 (D)
191 257 298
CJ Mathebula t/a Nxolwane Bottle Store v University of the North [1998] 3 All SA 477 (T) Claassen v Van der Watt 1969 (3) SA 68 (T) Clarke Brothers & Brown (1913) Ltd v Truck & Car Co Ltd 1952 (3) SA 479 (W) Clarkson NO v Gelb 1981 (1) SA 288 (W) Classen v Ann Fenwick Eiendomme Bpk 1996 (2) SA 99 (O) Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) Clegg v Groenewald 1970 (3) SA 90 (C) Clements v Simpson 1971 (3) SA 1 (A) Clifford v Commercial Union Insurance Co of SA Ltd 1998 (4) SA 150 (SCA) Clifford Harris (Pty) Ltd v SGB Building Equipment (Pty) Ltd 1980 (2) SA 141 (T) Cloete v Karee-Aar Landgoed Bpk [1997] 2 All SA 700 (NC); 1997 (3) SA 30 (NC) Cockroft v Baxter 1955 (4) SA 93 (C) Coertzen v Gerard NO 1997 (2) SA 836 (O) Coetzee v ABSA Bank Bpk 1997 (4) SA 85 (T) Coetzee v Attorneys’ Insurance Fidelity Fund [2002] 4 All SA 509 (SCA); 2003 (1) SA 1 (SCA) 203 Coetzee v Comitis [2001] 1 All SA 538 (C); 2001 (1) SA 1254 (C) Coetzee v De Beer 1959 (1) SA 690 (T) Coetzee (Sheriff, Pretoria East) v Meevis [2001] 1 All SA 10 (A); 2001 (3) SA 454 (SCA) Coetzee & Sons v Smit 1955 (2) SA 553 (A) Coetzer v Mosenthals Ltd 1963 (4) SA 22 (A) Cohen Lazar & Co v Gibbs 1922 TPD 146 Cointreau et Cie SA v Pagan International 1991 (4) SA 706 (A) Colin v De Guisti 1975 (4) SA 223 (NC) Colonial Mutual Life Assurance Society Ltd v MacDonald 1931 AD 412 Colt Motors (Edms) Bpk v Kenny 1987 (4) SA 378 (T) Columbus Joint Venture v ABSA Bank Ltd [2002] 1 All SA 105 (SCA); 2002 (1) SA 90 (SCA)
80, 168 62, 310 119 14 108 24, 25 97 29, 307 202 279 346 195, 260 156 57
304 306 239 9, 11 22 239 338 232 349 184 57
Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) Comcorp (Pty) Ltd v Quipmor CC 1998 (2) SA 599 (D) Commercial Careers College (Pvt) Ltd v Forest View (Pvt) Ltd 1979 (2) SA 402 (RA) Commercial Union Ins of SA Ltd v Lotter [1999] 1 All SA 235 (A); 1999 (2) SA 147 (SCA)
289 315 220 201
Commercial Union Trade Finance v Republic Bottlers of SA (Pty) Ltd t/a Booth’s Bottle Store 1992 (4) SA 728 (D) 69 Commissioner for Customs & Excise v Standard General Ins Co Ltd 2001 (1) SA 978 (SCA) Commissioner for Inland Revenue v Bowman NO 1990 (3) SA 311 (A) Commissioner for Inland Revenue v First National Industrial Bank Ltd 1990 (3) SA 641 (A) Commissioner for SARS v Mendes [2001] 2 All SA 316 (SE); 2001 (4) SA 934 (SE)
293 197 87, 157, 205 77
Commissioner of Customs & Excise v Bank of Lisbon International Ltd 1994 (1) SA 205 (N) Community Development Board v Mahomed NNO 1987 (2) SA 899 (A) Compagnie Interafricaine de Travaux v SA Transport Services 1991 (4) SA 217 (A) Composting Engineering (Pty) Ltd v The Taxing Master 1985 (3) SA 249 (C) Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A) Cone Textiles (Pvt) Ltd v Mather & Platt (SA) (Pty) Ltd 1981 (3) SA 565 (ZA) Conradie v Hanekom [1999] 2 All SA 525 (LCC); 1999 (4) SA 491 (LCC) Conress (Pty) Ltd v Gallic Construction (Pty) Ltd 1981 (3) SA 73 (W) Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd [2002] 1 All SA 517 (C); 2002 (2) SA 580 (C) 115 Consolidated Frame Cotton Corp Ltd v Sithole 1985 (2) SA 18 (N) Continental Illinois National Bank & Trust Co of Chicago v Greek Seamen’s Pension Fund 1989 (2) SA 515 (D) 23 Continental Linen Co (Pty) Ltd v Kenpet Agency (Pty) Ltd 1986 (4) SA 703 (T) Cook v Muller 1973 (2) SA 240 (N) Cooper NO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) Cooper NO v South African Mutual Life Assurance Society [2001] 1 All SA 355 (A); 2001 (1) SA 967 (SCA) 80 Cordier v Cordier 1984 (4) SA 524 (C) Corlett Drive Estates v Boland Bank Bpk 1979 (1) SA 863 (C) Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) Correira v Berwind 1986 (4) SA 60 (ZH) Courtis Rutherford & Sons CC v Sasfin (Pty) Ltd [1999] 3 All SA 639 (C) Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) Cowbell AG v ICS Holdings Ltd [2001] 4 All SA 242 (SCA); 2001 (3) SA 941 (SCA) Crause v Ocean Bentonite Co (Edms) Bpk 1979 (1) SA 1076 (O) Crawford v Albu 1917 AD 102 Credit Corporation of SA Ltd v Bosman 1958 (3) SA 845 (T) Credit Corporation of SA Ltd v Roy 1966 (1) SA 12 (D) Credit Corporation of SA Ltd v Swart 1959 (1) SA 555 (O)
13 179 131 49 270, 350 37 170 32
23
280 228 198
295 209 222, 225 2 108 119, 183 338 85 142, 143 121 229 118
Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie Noord-Transvaal 1972 (1) SA 376 (A) 40 Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) Cromhout v Multilateral Motor Vehicle Accidents Fund; Santam Ltd v Williams [1997] 4 All SA 491 (A); 1998 (1) SA 563 (SCA) 249 Crookes NO v Watson 1956 (1) SA 277 (A) CTP Ltd v Independent Newspapers Holdings Ltd 1999 (1) SA 452 (W) Cullen v Zuidema 1951 (3) SA 817 (C) Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöperasie Bpk 1972 (1) SA 761 (A) 67 Culverwell v Brown 1990 (1) SA 7 (A) Cumes v Estate Cumes 1950 (2) SA 15 (C) Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)
307, 333
105 303 215
301 15 100, 119, 121, 302
Pleadings/Amlers Precedents of Pleadings/Table of Cases/D D D Glaser & Sons (Pty) Ltd v The Master NO 1979 (4) SA 780 (C) D-Jay Corpn CC v Investor Management Services (Pty) Ltd [1996] 4 All SA 650 (W); 2000 (2) SA 755 (W) 115 Da Silva v Coetzee 1970 (3) SA 603 (T) Da Silva v Coutinho 1971 (3) SA 123 (A) Da Silva v Janowski 1982 (3) SA 205 (A) Da Silva v Otto 1986 (3) SA 538 (T) Dabelstein v Lane and Fey NNO [2001] 1 All SA 532 (SCA); 2001 (1) SA 1222 (SCA) Daimler Chrysler Aktiengesellschaft v Afinta Motor Corporation (Pty) Ltd [2001] 2 All SA 219 (T) 275 Dale v Fun Furs (Pty) Ltd 1968 (3) SA 264 (O) Dale Street Congregational Church v Hendrickse 1992 (1) SA 133 (E) Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A) Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd 1979 (2) SA 56 (A) Dalrymple, Frank & Feinstein v Friedman (2) 1954 (4) SA 649 (W) Damont NO v Van Zyl 1962 (4) SA 47 (C) Dantex Investment Holdings (Pty) Ltd v Brenner NNO 1989 (1) SA 390 (A) Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A); 2001 (2) SA 284 (SCA) 99, 246, 247, 301 Dave v Birrell 1936 TPD 192 Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A) Davel v Swanepoel 1954 (1) SA 383 (A) Davenport Corner Tea Room (Pty) Ltd v Joubert 1962 (2) SA 709 (D) David Beckett Construction (Pty) Ltd v Bristow 1987 (3) SA 275 (W) David Trust v Aegis Insurance Co Ltd [2000] 2 All SA 297 (A); 2000 (3) SA 289 (SCA) Davies v Lombard 1966 (1) SA 585 (W) Davis v Pietermaritzburg City Council 1989 (3) SA 765 (A) De Beer v Coetzee 1956 (3) SA 263 (T) De Beer v Keyser [2002] 1 All SA 368 (A); 2002 (1) SA 827 (SCA) De Beer v Rondalia Versekeringskorp van SA Bpk 1971 (3) SA 614 (O)
226
11 222, 324 23, 95 10 197
355 5 87 172, 233, 234 184 229 183, 288
233 179, 206 311 216 315 21 142, 286 178 306 97
333 De Beer v Van der Merwe 1923 AD 378 De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) De Coning v Monror Estate & Investment Co (Pty) Ltd 1974 (3) SA 72 (E) De Franca v Exhaust Pro CC (De Franca Intervening) [1996] 4 All SA 503 (SE); 1997 (3) SA 878 (SE) 76 De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) De Jager v Grunder 1964 (1) SA 446 (A) De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA) De Klerk v Old Mutual Insurance Co Ltd 1990 (3) SA 34 (E) De La Rey’s Transport (Edms) Bpk v Lewis 1978 (1) SA 797 (A) De Meillon v Montclair Society of the Methodist Church of SA 1979 (3) SA 1365 (D) De Pinto v Rensea Investments (Pty) Ltd 1977 (4) SA 529 (A) De Villiers v Galloway 1943 AD 439 De Villiers v Schutte 2001 (3) SA 834 (C) De Villiers v Stadsraad van Mamelodi 1995 (4) SA 347 (T) De Wet v Western Bank Ltd 1977 (4) SA 770 (T) De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) De Wet NO v Uys NO 1998 (4) SA 694 (T) De Zwaan v Nourse 1903 TS 814 Deedat v Muslim Digest 1980 (2) SA 922 (D) Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221 (C) Delfs v Kuehne & Nagel (Pty) Ltd 1990 (1) SA 822 (A) Demmers v Wyllie 1978 (4) SA 619 (D) Dennis Peters Investments (Pty) Ltd v Ollerenshaw 1977 (1) SA 197 (W) Densam (Pty) Ltd v Cywilnat (Pty) Ltd 1991 (1) SA 100 (A) Desai v Mohamed 1976 (2) SA 709 (N) Design & Planning Service v Kruger 1974 (1) SA 689 (T) Desmond Isaacs Agencies (Pty) Ltd v Contemporary Displays 1971 (3) SA 286 (T) Dettmann v Goldfain 1975 (3) SA 385 (A) Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd [2002] 4 All SA 67 (SCA); 2003 (1) SA 31 (SCA) 113, 146 Dharampul Transport (Pty) Ltd v Dharampal 1956 (1) SA 700 (A) Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A) Dhooma v Mehta 1957 (1) SA 676 (D) Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) Diamond v Kernick 1947 (3) SA 69 (A) Dickinson v SA General Electric Co (Pty) Ltd 1973 (2) SA 620 (A) Dickinson Motors (Pty) Ltd v Oberholzer 1952 (1) SA 443 (A) Diedericks v Minister of Lands 1964 (1) SA 49 (N) Diemer v Solomon 1982 (4) SA 13 (C)
345 265, 266 164
186, 295, 356 155, 184 127, 224 166 128 354 130 8 134 178 212 212 99 36 134 32, 33 96 134 85 66 356 89 307 66, 269
174 133 51 55, 327 244 69 244 245 20
Diepsloot Residents’ and Landowners’ Association v Administrator Transvaal 1994 (3) SA 336 (A) 323 Dilokong Chrome Mines (Edms) Bpk v Direkteur-Generaal, Departement van Handel & Nywerheid 1992 (4) SA 1 (A) 95 Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) 128
Dirk Fourie Trust v Gerber 1986 (1) SA 763 (A) Distinct Investments (Pty) Ltd v Arhay CC; Bloom v Das Neves [1997] 2 All SA 513 (W) Divisional Commissioner of SA Police Witwatersrand Area v SA Associated Newspapers Ltd 1966 (2) SA 503 (A) 40 Dlakela v Transkei Electricity Supply Commission [1997] 3 All SA 301 (Tk); 1997 (4) SA 523 (Tk) 158 Dodd v Estate Cloete 1971 (1) SA 376 (E) Dodd v Multilateral Motor Vehicle Accidents Fund [1997] 1 All SA 68 (A); 1997 (2) SA 763 (A) 250 Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228 (A) 101, 103, 115, 234, 235 Dorbyl Vehicle Trading & Finance Co (Pty) Ltd v Klopper 1996 (2) SA 237 (N) Dorland v Smits [2002] 3 All SA 691 (C); 2002 (5) SA 374 (C) Dorman Long Swan Hunter (Pty) Ltd v Karibib Visserye Ltd 1984 (2) SA 462 (C) Douglas Green Bellingham v Green t/a Greens Bottle Recyclers [1997] 4 All SA 423 (A); 1998 (1) SA 367 (SCA) 283 Dowson & Dobson Industrial Ltd v Van der Werf 1981 (4) SA 417 (C) Doyle v Board of Executors [1999] 1 All SA 309 (C); 1999 (2) SA 805 (C)
219
336
119 222, 266 96
327 5
Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) Drennan Maud & Partners v Town Board of the Township of Pennington [1998] 2 All SA 571 (SCA); 1998 (3) SA 200 (SCA) 294 Dreyer v Tuckers Land & Development Corp (Pty) Ltd 1981 (1) SA 1219 (T) Du Plessis v Doubells Transport (Edms) Bpk 1979 (1) SA 1046 (O)
5
228 315
Du Plessis v Strydom 1985 (2) SA 142 (T)
35
Du Plessis NO v Oosthuizen 1999 (2) SA 191 (O)
77
Du Plessis NO v Phelps 1995 (4) SA 165 (C) Du Preez v Boetsap Stores (Pty) Ltd 1978 (2) SA 177 (NC)
224 174
Du Toit v Atkinson’s Motors Bpk 1985 (2) SA 893 (A) Du Toit v Barclays Nasionale Bank Bpk 1985 (1) SA 563 (A)
244, 245 327
Du Toit v De Beer 1955 (1) SA 469 (T)
114, 115
Du Toit v Vermeulen 1972 (3) SA 848 (A)
14, 74
Duarte v Lissack 1973 (3) SA 615 (D) Duburoro Investments (Pty) Ltd v Bock [2002] 3 All SA 571 (W) Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) 93, 343 Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) Durban City Council v Association of Building Societies 1942 AD 27 Durban City Council v SA Board Mills Ltd 1961 (3) SA 397 (A) Durban Picture Frame Co (Pty) Ltd v Jeena 1976 (1) SA 329 (D) Durban’s Water Wonderland (Pty) Ltd v Botha [1999] 1 All SA 411 (A); 1999 (1) SA 982 (SCA) Durity Alpha (Pty) Ltd v Vagg 1991 (2) SA 840 (A)
90
181, 182 329
21 131 353 129
145, 224
Durity Omega (Pty) Ltd v Gauteng Civils CC 2000 (1) SA 165 (T) Durr v ABSA Bank Ltd [1997] 3 All SA 1 (SCA); 1997 (3) SA 448 (SCA)
23 76
56, 258 Dusheiko v Milburn 1964 (4) SA 648 (A)
214
Pleadings/Amlers Precedents of Pleadings/Table of Cases/E E Eagle Star Insurance Co Ltd v Willey 1956 (1) SA 330 (A) East London Western Districts Farmers’ Association v Minister of Education & Development Aid 1989 (2) SA 63 (A) 265, 319, 322 Eaton & Louw v Arcade Properties (Pty) Ltd 1961 (4) SA 233 (T); 1962 (3) SA 255 (A) EBN Trading (Pty) Ltd v Commissioner for Customs and Excise [2001] 3 All SA 117 (A); 2001 (2) SA 1210 (SCA) 314 Ebrahim v Pretoria Stadsraad 1980 (4) SA 10 (T) Eden v Pienaar [2000] 3 All SA 632 (W); 2001 (1) SA 158 (W) Edouard v Administrator, Natal 1989 (2) SA 368 (D) Edwards v Van Zyl 1951 (2) SA 93 (C) Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman NO [1997] 3 All SA 391 (A); 1997 (4) SA 302 (A) 242 Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Pty) Ltd 1989 (3) SA 26 (A) 164 Eilon v Eilon 1965 (1) SA 703 (A) Eksteen v Van Schalkwyk 1991 (2) SA 39 (T) Electric Process Engraving & Stereo Co v Irwin 1940 AD 220 Electrical Contractors’ Association SA v Building Industries Federation SA (2) 1980 (2) SA 516 (T) 131, 132 Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 (4) SA 450 (D) Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) Els v Minister of Law & Order 1993 (1) SA 12 (C) Els NO v Jacobs 1989 (4) SA 622 (SWA) Energy Measurements (Pty) Ltd v First National Bank of SA Ltd [2002] 2 All SA 396 (W); 2001 (3) SA 132 (W) 59 Engen Petroleum Ltd v Kommandonek (Pty) Ltd [2001] 1 All SA 636 (W); 2001 (2) SA 170 (W) 218 Engling v Bosielo 1994 (2) SA 388 (B) Enocon Construction (Pty) Ltd v Palm Sixteen (Pty) Ltd 1972 (4) SA 511 (T) Ensor NO v Nedbank Ltd 1978 (3) SA 110 (D) Ensor NO v Rensco Motors (Pty) Ltd 1981 (1) SA 815 (A) Epstein v Bell 1997 (1) SA 483 (D) Erasmus v Davis 1969 (2) SA 1 (A) Erasmus v Fourwill Motors (Edms) Bpk 1975 (4) SA 57 (T) Erasmus v Venter 1953 (3) SA 828 (O) Erf 3183/1 Ladysmith (Pty) Ltd v Commissioner for Inland Revenue 1996 (3) SA 942 (A) Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) Esbach v Steyn 1975 (4) SA 503 (A) Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) Eskom v Rollomatic Engineering (Edms) Bpk 1992 (2) SA 725 (A) Esquire Electronics Ltd v Executive Video 1986 (2) SA 576 (A)
202
35
169 181, 182 192 286
148 48 265
294 120 194, 343 239 15
318 86 197 197 81 127, 128, 224 118 22 314 283 35 70 270 338
Ess Kay Electronics Pte Ltd v First National Bank of Southern Africa Ltd [2001] 1 All SA 315 (A); 2001 (1) SA 1214 (SCA) 348 Essa v Divaris 1947 (1) SA 753 (A) Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A)
127
Estate Agents Board v Mahadeo 1991 (3) SA 49 (N) Estate Agents Board v Swart [1998] 4 All SA 373 (T); 1999 (1) SA 1097 (T) Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T)
163 164 44, 241
Esterhuizen v Holmes 1947 (2) SA 789 (T)
114
Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T)
224, 256
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) Ewing, McDonald & Co (Pty) Ltd v Heyns 1973 (3) SA 747 (NC) Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd [1998] 4 All SA 465 (A); 1999 (2) SA 719 (SCA)
64, 145
128, 222, 249 68
24, 334
Pleadings/Amlers Precedents of Pleadings/Table of Cases/F F F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk [1998] 4 All SA 480 (SCA); 1999 (1) SA 515 (SCA) 186, 206 Fakroodeen v Fakroodeen NNO 1971 (3) SA 395 (D) Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T) Faulkner v Freeman 1985 (3) SA 555 (C) Faure v Britz NO 1981 (4) SA 346 (O) Faure v Joubert NO 1979 (4) SA 939 (A) Federation Internationale de Football v Bartlett 1994 (4) SA 722 (T) Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A) Feinstein v Niggli 1981 (2) SA 684 (A) Fenhalls v Ebrahim 1956 (4) SA 723 (D) Ferreira v Fouche 1949 (1) SA 67 (T) Ferreira v SAPDC (Trading) Ltd 1983 (1) SA 235 (A) Ficksburg Transport (Edms) Bpk v Rautenbach 1986 (2) SA 88 (O) Ficksburg Transport (Edms) Bpk v Rautenbach 1988 (1) SA 318 (A) Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain [1997] 4 All SA 650 (SE); 2001 (2) SA 853 (SE) 304 Field NNO v Compuserve (Pvt) Ltd 1991 (4) SA 490 (Z) Filta-Matix (Pty) Limited v Freudenberg [1998] 1 All SA 239 (A); 1998 (1) SA 606 (SCA) Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) Finlay v Kutoane 1993 (4) SA 675 (W) Fircone Investments (Pty) Ltd v Bank of Lisbon & SA Ltd 1982 (3) SA 700 (T) Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) Firs Investment Ltd, The v Levy Bros Estates (Pty) Ltd 1984 (2) SA 881 (A) First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd 1988 (4) SA 924 (W) 120, 122 First National Bank of SA Ltd v Lynn NO [1996] 1 All SA 229 (SCA); 1996 (2) SA 339 (A) First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 (3) SA 556 (A)
359 313 260 16 54 277, 343 201 183, 184, 355 13 272 329 268 269
5 281 133, 190, 191 249 330 212, 213 23, 164
90
57, 71 First National Bank of SA Ltd v Perry NO [2001] 3 All SA 331 (A); 2001 (3) SA 960 (SCA) First National Bank of SA Ltd v Richards Bay Taxi Centre (Pty) Ltd [1999] 2 All SA 533 (N)
187 95
First National Bank of SA Ltd v Rosenblum [2001] 4 All SA 355 (A); 2001 (4) SA 189 (SCA) Fitt v Louw 1970 (3) SA 73 (T) Flax v Murphy 1991 (4) SA 58 (W) Fluxman v Brittain 1941 AD 273 Foentjies v Beukes 1977 (4) SA 964 (E) Food & Nutritional Products (Pty) Ltd v Neumann 1986 (3) SA 464 (W) Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C) Foord v Lake NNO 1968 (4) SA 395 (W) Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C) Fose v Min of Safety & Security 1997 (3) SA 786 (CC) Foulds v Smith 1950 (1) SA 1 (A) Fourie v Braude 1996 (1) SA 610 (T) Fourie v CDMO Homes (Pty) Ltd 1982 (1) SA 21 (A) Fourie’s Poultry Farm (Pty) Ltd v Kwanatal Food Distributors (Pty) Ltd (in liq) 1991 (4) SA 514 (N) 298 Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A) FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A) Frame v Palmer 1950 (3) SA 340 (C) Francis George Hill Family Trust v SA Reserve Bank 1992 (3) SA 91 (A) Frank & Hirsch (Pty) Ltd v Rodi & Wienenberger AG 1960 (3) SA 747 (A) Frank R Thorold (Pty) Ltd v Estate late Beit 1996 (4) SA 705 (SCA) Frankel Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc [1996] 2 All SA 495 (A); 1996 (3) SA 355 (SCA) 34 Frankel Pollak Vinderine Inc v Stanton [1996] 2 All SA 582 (W) Fransba Vervoer (Edms) Bpk v IGI Ltd 1976 (4) SA 970 (W) Fredericks v Shield Insurance Co Ltd 1982 (2) SA 423 (A) Free State Consolidated Gold Mines (Operations) Bpk v Sam Flanges Mining Supplies BK 1997 (4) SA 644 (O) 209 French v Sterling Finance Corp (Pty) Ltd 1961 (4) SA 732 (A) Froman v Robertson 1971 (1) SA 115 (A) Fry v First National Bank of South Africa Ltd 1996 (4) SA 924 (C) Fundstrust (Edms) Bpk (in likwidasie) v Marais [1996] 3 All SA 574 (C); 1997 (3) SA 470 (C) 73, 80 Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A); 1997 (1) SA 710 (A) 1, 37, 52, 322, 325
144 195 266 229, 247 218 80 134, 191, 193 333 345 39, 45 19, 20 83 90
328 285, 349 86 81 280 54
7 201 353
265 69 332
Pleadings/Amlers Precedents of Pleadings/Table of Cases/G G G & C Construction v De Beer [2000] 1 All SA 540 (T); 2000 (2) SA 378 (T) GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 Gabelsberger v Babl 1994 (2) SA 677 (T)
76 194
182 Gabriel v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C) Galago Publishers (Pty) Ltd v Erasmus 1989 (1) SA 276 (A) Ganie v Parekh 1962 (4) SA 618 (N)
111 68
Garden City Motors (Pty) Ltd v Bank of the OFS Ltd 1983 (2) SA 104 (N) Gardens Hotel (Pty) Ltd v Somadel Investments (Pty) Ltd 1981 (3) SA 911 (W) Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A)
357 33 183, 193, 194
Geduld Lands Ltd v Uys 1980 (3) SA 335 (T)
336
Gelb, Benjamin & Kaplan v Melzer 1987 (1) SA 917 (T) Geldenhuys v Borman NO 1990 (1) SA 161 (E)
50 359
Geldenhuys v Kotze 1964 (2) SA 167 (O)
228
Gemeenskapsontwikkelingsraad v Williams (1) 1977 (2) SA 692 (W) Genac Properties Jhb (Pty) Ltd v NBC Administrators CC 1992 (1) SA 566 (A) General Accident Ins Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v Carstens NO; General Accident Ins Co SA Ltd v Nhlumayo 1987 (3) SA 577 (A) 130 General Accident Versekeringsmaatskappy SA Bpk v Bailey NO 1988 (4) SA 353 (A) Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)
270 218
208 279, 280 245
George Municipality v Vena 1989 (2) SA 263 (A)
318
Georgias v Standard Chartered Finance Zimbabwe Ltd 2000 (1) SA 126 (ZS) Gerber v Wolson 1955 (1) SA 158 (A)
84 329, 330
Gericke v Sack 1978 (1) SA 821 (A)
294
Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T) Gert de Jager (Edms) Bpk v Jones NO & McHardy NO 1964 (3) SA 325 (A) Gibbins v Williams, Muller, Wright & Mostert Ingelyf 1987 (2) SA 82 (T) Gibson v Berkowitz [1997] 1 All SA 99 (W); 1996 (4) SA 1029 (W) Gibson v Van der Walt 1952 (1) SA 262 (A)
33, 34 197, 198 348 106, 107 264
Gien v Gien 1979 (2) SA 1113 (T)
265, 266, 267
Gijzen v Verrinder 1965 (1) SA 806 (D)
217, 218
GK Breed (Bethlehem) (Edms) Bpk v Martin Harris & Seuns (OVS) (Edms) Bpk 1984 (2) SA 66 (O) 32 Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A) Glen Comeragh (Pty) Ltd v Colibri (Pty) Ltd 1979 (3) SA 210 (T) Glendale Sugar Millers (Pty) Ltd, Ex parte 1973 (2) SA 653 (N) Glofinco v ABSA Bank Ltd t/a United Bank 2001 (2) SA 1048 (W) Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA) Godfather, The v Commissioner for Inland Revenue 1993 (2) SA 426 (N) Godfrey v Campbell [1997] 1 All SA 395 (C); 1997 (1) SA 570 (C) Goldberg v Buytendach Boerdery Beleggings (Edms) Bpk 1980 (4) SA 775 (A) Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA 642 (C) Golden China TV Game Centre v Nintendo Co Ltd [1996] 4 All SA 667 (SCA); 1997 (1) SA 405 (A)
64
111
215, 216 244 292 21 21, 80, 167 72 20, 347 219 126
Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC [2002] 2 All SA 551 (SCA); 2002 (1) SA 822 (SCA) 220 Goldfields Laboratories (Pty) Ltd v Pomate Engineering (Pty) Ltd 1983 (3) SA 197 (W) Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C) Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) 84, 85, 184 Goodricke & Son v Auto Protection Insurance Co Ltd (in liq) 1968 (1) SA 717 (A) Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C); 1998 (4) SA 606 (C) Goosen v Van Zyl 1980 (1) SA 706 (O)
303 81, 84
23, 50 33, 66, 116 50
Gordon Lloyd Page & Associates v Rivera [2000] 4 All SA 241 (A); 2001 (1) SA 88 (SCA) Gore NO v Saficon Industrial (Pty) Ltd 1994 (4) SA 536 (W) Gosschalk v Rossouw 1966 (2) SA 476 (C) Govender v Minister of Safety & Security 2001 (4) SA 273 (SCA); 2001 (2) SACR 197 (SCA) 45 Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C) Government of RSA v Ngubane 1972 (2) SA 601 (A) Government of the Province of the Eastern Cape v Frontier Safaris (Pty) Ltd [1997] 4 All SA 500 (A); 1998 (2) SA 19 (SCA) 319 Government of the Republic of South Africa v Midkon (Pty) Ltd 1984 (3) SA 552 (T) Government of the Self-Governing Territory of KwaZulu v Mahlangu 1994 (1) SA 626 (T) Gower v Killian 1977 (2) SA 393 (E) Graf v Buechel [2003] 2 All SA 123 (SCA) Graham v Ridley 1931 TPD 476 Graham NO v Trackstar Trading 363 (Pty) Ltd [2003] 1 All SA 181 (SE) Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A) Grand Mines (Pty) Ltd v Giddey NO 1999 (1) SA 960 (A) Grant’s Farming Co Ltd v Attwell 9 HCG 91 Great North Farms (Edms) Bpk v Ras 1972 (4) SA 7 (T) Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank [1996] 4 All SA 278 (W); 1997 (2) SA 591 (W) 59, 107 Greathead v SA Commercial Catering & Allied Workers Union 2001 (3) SA 464 (SCA) Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N) Greenfield Manufacturers Temba (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) 247 Grevler v Landsdown NNO 1991 (3) SA 175 (T) Grindal v Grindal 1997 (4) SA 137 (C) Grobbelaar v Havenga 1964 (3) SA 522 (N) Grobbelaar NO v Bosch 1964 (3) SA 687 (E) Groenendijk v Tractor & Excavator Spares (Pty) Ltd 1978 (1) SA 815 (A) Groenewald v Groenewald [1998] 2 All SA 335 (A); 1998 (2) SA 1106 (SCA) Groenewald v Minister van Justisie 1973 (2) SA 480 (O) Groenewald v Minister van Justisie 1973 (3) SA 877 (A) Grootboom v Graaff-Reinet Municipality 2001 (3) SA 373 (E)
92, 95 7 190
86, 89 66, 191
210 95 27 286 350 247 299 171 263 312
299 222
196 148 27 189 350 44 238 40 158
Grootboom v Minister van Justisie [1997] 3 All SA 51 (SE) Gross v Commercial Union Assurance Co Ltd 1974 (1) SA 630 (A) Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (A) Grosvenor Motors Border Ltd v Visser 1971 (3) SA 213 (E) Group Five Building Ltd v Min of Community Development 1993 (3) SA 629 (A) Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A) Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) Gunn NNO v Barclays Bank, DCO 1962 (3) SA 678 (A) Gutman NO v Standard General Insurance Co Ltd 1981 (4) SA 114 (C)
40 107, 337 14, 17, 74 216 232 249 61, 62 196 200
Pleadings/Amlers Precedents of Pleadings/Table of Cases/H H H & F Spares Centre (Pty) Ltd v Grand Prix Spares 1986 (4) SA 974 (N) HA Millard & Son (Pty) Ltd v Enzenhofer 1968 (1) SA 330 (T) Hall & Sons Ltd v Kleinsmith 1963 (4) SA 320 (T) Hall-Thermotank Natal (Pty) Ltd v Hardman 1968 (4) SA 818 (D) Hamilton-Browning v Denis Barker Trust [2001] 1 All SA 618 (N); 2001 (4) SA 1131 (N) Hammer v Klein 1951 (2) SA 101 (A) Hanekom v Multilateral Motor Vehicle Accidents Fund (De Lange, Third Party) [1997] 4 All SA 691 (T); 1998 (1) SA 634 (T) 251 Hargreaves v Anderson 1915 AD 519 Harris v Pieters 1920 AD 644 Hartsrivier Boerderye (Edms) Bpk v Van Niekerk 1964 (3) SA 702 (T) Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Hauman v Nortjé 1914 AD 293 Havenga v Parker 1993 (3) SA 724 (T) Hawker v Prudential Assurance Co of SA Ltd 1987 (4) SA 442 (C) Haynes v King Williams Town Municipality 1951 (2) SA 371 (A) Headermans (Vryburg) (Pty) Ltd v Ping Bai [1997] 2 All SA 371 (A); 1997 (3) SA 1004 (A) Headleigh Private Hospital (Pty) Ltd t/a Rand Clinic v Soller & Manning [1998] 4 All SA 334; 2001 (4) SA 360 (W) 49 Hefer v Van Greuning 1979 (4) SA 952 (A) Heg Consulting Enterprises (Pty) Ltd v Siegwart 2000 (1) SA 507 (C) Helios Ltd v Letraset Graphic Art Products (Pty) Ltd 1973 (4) SA 81 (T) Hendricks v Barnett 1975 (1) SA 765 (N) Hendriks NO v Swanepoel 1962 (4) SA 338 (A) Henery v Santam Versekeringsmaatskappy Bpk [1997] 3 All SA 100 (T) Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O) Henry v Branfield 1996 (1) SA 244 (D) Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A)
68 173 7 216 96 247
23 335 290 93, 121, 130, 131 135, 136 234 121 223 316 29, 299
270, 288, 289 48 194 157 197 237 78 188 355
Herbst v Solo Boumateriaal 1993 (1) SA 397 (T) 271
Herselman NO v Botha 1994 (1) SA 28 (A)
142
Hersman v Shapiro & Co 1926 TPD 367 Heslop v General Accident, Fire & Life Assurance Corp Ltd 1962 (3) SA 511 (A) Highveld 7 Properties (Pty) Ltd v Bailes [1999] 4 All SA 461 (A); 1999 (4) SA 1307 (A) Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council 2002 (6) SA 66 (T) 354 Hiles v Venter 1983 (4) SA 22 (T)
Hippo Quarries (Tvl) (Pty) Ltd v Eardley 1992 (1) SA 867 (A) Hirschowitz v Moolman 1983 (4) SA 1 (T); 1985 (3) SA 739 (A) Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A) Hix Networking Technologies CC v System Publishers (Pty) Ltd [1996] 4 All SA 675 (A); 1997 (1) SA 391 (SCA) 137 HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
Hoeksma v Hoeksma 1990 (2) SA 893 (A) Hofer v Kevitt NO [1997] 4 All SA 620 (A); 1998 (1) SA 382 (SCA) Hoffman v Meyer 1956 (2) SA 752 (C) Hoffman v Moni’s Wineries Ltd 1948 (2) SA 163 (C) Hollandia Reinsurance Co Ltd v Nedcor Bank Ltd 1993 (3) SA 574 (W) Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) Holz v Harksen 1995 (3) SA 521 (C) Holzman v Standard Bank Ltd 1985 (1) SA 360 (W) Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd 1984 (3) SA 681 (A) Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C) Horak NO v Smit [1999] 4 All SA 405 (T) Horowitz v Brock 1988 (2) SA 160 (A) Horwitz v Hendricks 1928 AD 391 Howard v Herrigel NO 1991 (2) SA 660 (A) Howarth v Schoeman [2001] 4 All SA 405 (LCC) HT Group (Pty) Ltd v Hazelhurst [2003] 2 All SA 262 (C)
Hulett v Hulett 1992 (4) SA 291 (A)
65 290 63, 64
50, 85, 245, 319
Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd 1968 (1) SA 571 (A)
Hugo NO v Durbach 1961 (2) SA 780 (O)
45
158, 344
Hochfeld Commodities v Theron 2000 (1) SA 551 (O)
Hugo v Gross 1989 (1) SA 154 (C)
301
285
Hiltonian Society v Crofton 1952 (3) SA 130 (A)
Hughes v Levy 1907 TS 276
202
68
Hillman Bros Ltd v Kelly & Hingle 1926 WLD 153
Hlobo v Multilateral Motor Vehicle Accidents Fund [2001] 1 All SA 322 (A); 2001 (2) SA 59 (SCA) Hlophe v Mahlalela 1998 (1) SA 449 (T)
127
126 302 227, 263 28, 176 341 32, 35, 37 184 58, 72 101, 102, 208, 215 182 56 146 37, 256 358 303 307 81 170 136 189 29 120 184, 260
Hülse-Reutter v Gödde [2002] 2 All SA 211 (A); 2001 (4) SA 1336 (SCA) 81
Hunt v Van der Westhuizen 1990 (3) SA 357 (C) Hunt h/a Realty 1 Elk Estates v Dermann [1997] 4 All SA 665 (T) Hurwitz NNO v Table Bay Engineering (Pty) Ltd 1994 (3) SA 449 (C)
184 304 218
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (A); 1997 (4) SA 399 (SCA)
127, 277, 343
Pleadings/Amlers Precedents of Pleadings/Table of Cases/I I Ideal Finance Corp v Coetzer 1970 (3) SA 1 (A) Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C) Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) Incledon (Welkom) (Pty) Ltd v Qwaqwa Development Corp Ltd 1990 (4) SA 798 (A) Incorporated Law Society, Transvaal v Meyer 1981 (3) SA 962 (T) Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) Indrieri v Du Preez 1989 (2) SA 721 (C)
328 316 232 67 48 57, 222, 223 24
Industrial & Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control [1996] 4 All SA 295 (A); 1997 (1) SA 136 (SCA) 50 Industrial Development Corp of SA Ltd v See Bee Holdings (Pty) Ltd 1978 (4) SA 136 (C) Industrial Development Corporation of SA (Pty) Ltd v Silver [2002] 4 All SA 316 (SCA) Info Plus v Scheelke [1998] 2 All SA 509 (SCA); 1998 (3) SA 184 (SCA) Inkin v Borehole Drillers 1949 (2) SA 366 (A) Inrybelange (Edms) Bpk v Pretorius 1966 (2) SA 416 (A) Interaccess (Pty) Ltd v Van Dorsten [1999] 2 All SA 561 (C) Intercontinental Exports (Pty) Ltd v Fowles [1999] 2 All SA 304 (A); 1999 (2) SA 1045 (SCA) 299, 327 Inter-Continental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd 1979 (3) SA 740 (W) 22 Interim Ward S 19 Council v Premier, Western Cape Province 1998 (3) SA 1056 (C) International Executive Communications Ltd t/a Institute for International Research v Turnley [1996] 3 All SA 648 (W); 1996 (3) SA 1043 (W) 93, 172 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A)
328 30, 327 167, 168, 270 233 269 229
354
3, 224, 260 134, 193, 194
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4) 1955 (2) SA 40 (W) IPF Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, Third Party) 2002 (5) SA 101 (W) 336 Irish & Co Inc (now Irish & Menell Rosenberg Inc) v Kritzas 1992 (2) SA 623 (W) Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A); 1996 (1) SACR 314 (SCA) Isep Structural Engineering & Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981 (4) SA 1 (A) 220
134
34 40
Pleadings/Amlers Precedents of Pleadings/Table of Cases/J J Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd [1998] 1 All SA 123 (SCA); 1998 (2) SA 968 (SCA) 111 Jachris (Pty) Ltd v Fourie 1984 (4) SA 501 (T) 68
Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A) Jafta v Minister of Law & Order 1991 (2) SA 286 (A) Jajbhay v Cassim 1939 AD 537 Jameson’s Minors v Central SA Railways 1908 TS 575 Jans v Nedcor Bank Ltd [2003] 2 All SA 11 (SCA) Janse van Rensburg v Grieve Trust CC [1999] 3 All SA 597 (C); 2000 (1) SA 315 (C) Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) Jardin v Agrela 1952 (1) SA 256 (T) Jasat v Interim National Medical and Dental Council [1998] 4 All SA 289 (N); 1999 (1) SA 156 (N) 214 Jayber (Pty) Ltd v Miller 1980 (4) SA 280 (W) Jayiya v MEC for Welfare, EC Government [2003] 2 All SA 223 (SCA) Jeffery v Pollak & Freemantle 1938 AD 1 Jockie v Meyer 1945 AD 354 Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A) Johannesburg City Council v Bruma Thirty-Two (Pty) Ltd 1984 (4) SA 87 (T) Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA 455 (A); 1997 (1) SA 157 (A) 224, 323 Johannesburg City Council v Vucinovich 1940 AD 365 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 John v Road Accident Fund [1999] 4 All SA 355 (T); 2000 (1) SA 459 (T) John Newmark & Co (Pty) Ltd v Durban City Council 1959 (1) SA 169 (N) John Waddington Ltd v Arthur E Harris (Pty) Ltd 1968 (1) SA 38 (T) Johnson v Beckett 1992 (1) SA 762 (A) Johnson v Blaikie & Co (Pty) Ltd t/a FT Building Supplies [1998] 2 All SA 38 (N); 1998 (3) SA 251 (N) 77 Johnson v Inc General Insurances Ltd 1983 (1) SA 318 (A) Johnson v Jainodien 1982 (4) SA 599 (C) Johnson v Rand Daily Mails 1928 AD 190 Johnston v Johnston NNO 1972 (3) SA 104 (RA) Joint Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund 1969 (2) SA 78 (T) 312 Jones v Krok 1995 (1) SA 677 (A) Jones v Krok 1996 (1) SA 504 (T) Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 (2) SA 827 (A) Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2) SA 1 (CC) 361 Jordaan v De Villiers 1991 (4) SA 396 (C) Jordaan v Krone Broers [1999] 3 All SA 57 (C) Joseph Forman Holdings (Pty) Ltd v Forim Holdings [1999] 3 All SA 204 (W) Joubert v Bester 1977 (4) SA 560 (T) Joubert v Combrinck 1980 (3) SA 680 (T)
44, 191 277 186, 187 352 328 176, 195, 216 190, 192 119, 316
130 74, 319 325 192 49, 95, 105 351 289
267 322 250 218 277 135, 142
65 185 141 15
181, 182, 303 182 330
156 11 79 189 12
Joubert v Santam Versekeringsmaatskappy Bpk 1978 (3) SA 328 (T) 128
Joubert v Venter 1985 (1) SA 654 (A) Joubert Street Investments (Pty) Ltd v Roberts 1943 TPD 141
142, 143 144
Jowell v Bramwell-Jones 1998 (1) SA 836 (W) Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (SCA) JT Publishing (Pty) Ltd v Minister of Safety & Security 1997 (3) SA 514 (CC)
51 51, 127, 260 131
Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A)
89, 105, 163, 165
Jurgens v Volkskas Bank Ltd 1993 (1) SA 214 (A)
328 Pleadings/Amlers Precedents of Pleadings/Table of Cases/K
Kahn v Raatz 1976 (4) SA 543 (A)
K
Kalil v Standard Bank of SA Ltd 1967 (4) SA 550 (A) Kalinko v Nisbet [2002] 3 All SA 294 (W) Kangra Holdings (Pty) Ltd v Minister of Water Affairs [1998] 3 All SA 227; 1998 (4) SA 330 (A) 178 Kapp v TC Valuta (Pty) Ltd 1975 (3) SA 283 (T) Karabus Motors (1959) Ltd v Van Eck 1962 (1) SA 451 (C) Karson v Minister of Public Works 1996 (1) SA 887 (E) Kate’s Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd [1997] 4 All SA 185 (A); 1998 (1) SA 235 (SCA) 90, 91 Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (A) Katzeff v City Car Sales (Pty) Ltd 1998 (2) SA 644 (C) Katzenellenbogen Ltd v Mullin 1977 (4) SA 855 (A) Kay v Kay 1961 (4) SA 257 (A) Keeve v Keeve NO 1952 (1) SA 619 (O) Kelly v Wright, Kelly v Kok 1948 (3) SA 522 (A) Kelvin Park Properties CC v Paterson NO [2001] 1 All SA 18 (SCA); 2001 (3) SA 31 (SCA) Kemp v Republican Press (Pty) Ltd 1994 (4) SA 261 (E) Kenitex Africa (Pty) Ltd v Coverite (Pty) Ltd 1967 (3) SA 307 (W) Kennedy v Botes 1979 (3) SA 836 (A) Kentz (Pty) Ltd v Power [2002] 1 All SA 605 (W) Kerbel v Kerbel 1987 (1) SA 562 (W) Kerbyn 178 (Pty) Ltd v van den Heever NO 2000 (4) SA 804 (W) Kern Trust (Edms) Bpk v Hurter 1981 (3) SA 607 (C) Ketteringham v City of Cape Town 1934 AD 80 Keystone Trading Co v Die Verenigde &c Mij 1926 TPD 218 Kgosana v Otto 1991 (2) SA 113 (W) Khoza v Netherlands Insurance Co of SA Ltd 1969 (3) SA 590 (W) Khumalo v Holomisa 2002 (5) SA 401 (CC) Khumalo v Potgieter [2001] 3 All SA 216 (A); 2001 (3) SA 63 (SCA)
269 328 84
157 260 334
33, 298 357 102 155 156 187 198 141 276 268 245 227 13 259, 260 323 23 317 250 133, 136, 190 170
Kilburn v Estate Kilburn 1931 AD 501 Kilian v Gauteng Provincial Legislature [1999] 1 All SA 84 (T) King’s Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N) Kirsch Industries Ltd v Vosloo & Lindeque 1982 (3) SA 479 (W) Kirsh v Pincus 1927 TPD 199 Klaas v Union & SWA Insurance Co Ltd 1981 (4) SA 562 (A) Klein NO v SA Transport Services 1992 (3) SA 509 (W) Klisser v SA Associated Newspapers Ltd 1964 (3) SA 308 (C) KLM Royal Dutch Airlines v Hamman [2002] 3 All SA 484 (W); 2002 (3) SA 818 (W) Klopper v Volkskas Bpk 1964 (2) SA 421 (T) Klug & Klug v Penkin 1932 CPD 401 Knop v Johannesburg City Council 1995 (2) SA 1 (A) KO Motors CC v Gilindoda [1999] 3 All SA 517 (E); 1999 (4) SA 251 (E) Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) Kommissaris van Binnelandse Inkomste v Van der Heever [1999] 3 All SA 115 (A); 1999 (3) SA 1051 (SCA) 236 Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA 283 (A) Kommissaris van Binnelandse Inkomste v Willers [1999] 2 All SA 342 (A); 1999 (3) SA 19 (SCA) 13 Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk [1996] 2 All SA 215 (A); 1996 (3) SA 273 (A) 167, 351 Kotze NO v Santam Insurance Ltd 1994 (1) SA 237 (C) Kragga Kamma Estates CC v Flanagan 1995 (2) SA 367 (A) Krapohl v Oranje Koöperasie Bpk 1990 (3) SA 848 (A) Krauze v Van Wyk 1986 (1) SA 158 (A) Kriegler v Minitzer 1949 (4) SA 821 (A) Kriel v Le Roux [2000] 2 All SA 65 (A) Kritzinger v Kritzinger 1989 (1) SA 67 (A) Kroon v Enschede 1909 TS 374 Kroon Meule CC v Wittstock t/a JD Distributors; Wittstock t/a JD Distributors v De Villiers 1999 (3) SA 866 (E) 34 Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha 1964 (3) SA 561 (A) Krugell v Shield Versekeringsmaatskappy Bpk 1982 (4) SA 95 (T) Kruger v Carlton Paper of SA (Pty) Ltd [2002] 2 All SA 351 (A); 2002 (2) SA 335 (SCA) Kruger v Coetzee 1966 (2) SA 428 (A) Kruger v Resnik 1955 (3) SA 378 (A) Kruger v Sekretaris van Binnelandse Inkomste 1973 (1) SA 394 (A) Kruger v Terblanche 1979 (4) SA 38 (T) Kruger v Van der Merwe 1966 (2) SA 266 (A) Krugersdorp Town Council v Fortuin 1965 (2) SA 335 (T) Krull v Sangerhaus 1980 (4) SA 299 (E) Kunz v Swart 1924 AD 618
286 319 145 271 267 361 87 137 64 56, 192 262 223, 323, 324 119 303
17, 325
242 99, 246 244 269, 290 95, 232 29, 307 151 328
215 130 257 257 49 87 211 224 350 61, 62 359
Pleadings/Amlers Precedents of Pleadings/Table of Cases/L
La Grange v Schoeman 1980 (1) SA 885 (E)
L
Labuschagne v Cloete 1987 (3) SA 638 (T) Labuschagne Broers v Spring Farm (Pty) Ltd 1976 (2) SA 824 (T) Lafrenz (Pty) Ltd v Dempers 1962 (3) SA 492 (A) Lake NNO v Caithness 1997 (1) SA 667 (E) Lambons (Edms) Bpk v BMW (Suid-Afrika) (Edms) Bpk [1997] 3 All SA 327 (SCA); 1997 (4) SA 141 (A) 97 Lambrakis v Santam Ltd 2000 (3) SA 1098 (W) Lammers & Lammers v Giovannoni 1955 (3) SA 385 (A) Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D) Land- en Landboubank van Suid-Afrika v Die Meester 1991 (2) SA 761 (A) Langeberg Foods Ltd v Tokwe [1997] 3 All SA 43 (E) Langeberg Koöperasie Bpk v Inverdoorn Farming & Trading Co Ltd 1965 (2) SA 597 (A) Langeberg Voedsel Bpk v Sarculum Boerdery Bpk 1996 (2) SA 565 (A) Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) Lanificio Varam SA v Masurel Fils (Pty) Ltd 1952 (4) SA 655 (A) Lansdown NO v Wajar 1973 (4) SA 329 (T) Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd [1997] 3 All SA 433 (W); 1997 (4) SA 578 (W) 324 Lategan NO v Boyes 1980 (4) SA 191 (T) Law v Kin 1966 (3) SA 480 (W) Laws v Rutherford 1924 AD 261 Lazarus v Gorfinkel 1988 (4) SA 123 (C) Laztex (Pty) Ltd v Telementry Equipment (Pty) Ltd 1976 (1) SA 74 (W) Le Riche v Hamman 1946 AD 648 Le Roux v Autovend (Pty) Ltd 1981 (4) SA 890 (N) Le Roux v Le Roux 1967 (1) SA 446 (A) Le Roux v Odendaal 1954 (4) SA 432 (N) Le Roux v Standard General Versekeringsmaatskappy Bpk 2000 (4) SA 1035 (SCA) Leal & Co v Williams 1906 TS 554 Lebeloane v Lebeloane [2000] 4 All SA 525 (W); 2001 (1) SA 1079 (W) Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) Lee v Maraisdrif (Edms) Bpk 1976 (2) SA 536 (A) Lehmbecker’s Earthmoving & Excavators (Pty) Ltd v IGI Ltd 1984 (3) SA 513 (A) Leonard Light Industries (Pty) Ltd v Wright 1991 (4) SA 628 (W) Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 (C) Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A) Lever v Purdy 1993 (3) SA 17 (A) Levin v Zoutendijk 1979 (3) SA 1145 (W)
190 107 216 333 245
127 357 343 67 361 197 215 349 96 69
81 239 246, 354 298 230 88 215 303 290 203 350 151 192, 238, 239 271 201, 203 28, 176 313 280 11 298, 299
Levy v Levy 1991 (3) SA 614 (A) Lewis v Oneanate (Pty) Ltd 1992 (4) SA 811 (A) Leyds NO v Noord-Westelike Koöperatiewe Landboumaatskappy Bpk 1985 (2) SA 769 (A) Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd 1980 (4) SA 271 (T) Leymac Distributors Ltd v Hoosen 1974 (4) SA 524 (D) Liberty Life Association of Africa Ltd v de Waal NO 1999 (4) SA 1177 (SCA) Lichtenburg Garage (Pty) Ltd v Gerber 1963 (4) SA 395 (T) Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C) Liebenberg, Estate v Standard Bank of SA Ltd 1927 AD 502 Lieberman v Santam Ltd 2000 (4) SA 321 (SCA) Lief NO v Dettmann 1964 (2) SA 252 (A) Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A) Lind v Spicer Bros (Africa) Ltd 1917 AD 147 Lindsay v Stofberg NO 1988 (2) SA 462 (C) Linton v Corser 1952 (3) SA 685 (A) Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C) Lipschitz v Landmark Consolidated (Pty) Ltd 1979 (2) SA 482 (W) Lipschitz NO v UDC Bank Ltd 1979 (1) SA 789 (A) Lipschitz NO v Wolpert & Abrahams 1977 (2) SA 732 (A) Liquidator Vautid Wear Parts (Pty) Ltd (in liquidation), Ex parte 2000 (3) SA 96 (W) List v Jungers 1979 (3) SA 106 (A) Loader v De Beer 1947 (1) SA 87 (W) Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T) Lombo v African National Congress [2002] 3 All SA 517 (SCA); 2002 (5) SA 668 (SCA) Loots v Nieuwenhuizen 1997 (1) SA 361 (T)
116, 315 175 66 299 121 202 140 55 265 265 65 303 2, 37, 128, 222, 241 22 16, 17 247 293, 294 197 82 2 74 206, 330 122 228 40 5, 272
Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T) Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA) Loubser v SA Spoorweë & Hawens 1976 (4) SA 589 (T) Lourens v Van Biljon 1967 (1) SA 703 (T) Louw v Louw 1965 (3) SA 852 (E) Low v Consortium Consol Corpn (Pty) Ltd 1999 (1) SA 445 (A) Lowrey v Steedman 1914 AD 532 LTA Construction Bpk v Administrateur, Transvaal 1992 (1) SA 473 (A) LTA Construction Ltd v KwaZulu-Natal Provincial Administration [1997] 1 All SA 503 (N); 1997 (1) SA 633 (N) 36 LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A) Lubbe v Bosman 1948 (3) SA 909 (A) Lusizi v Transnet Ltd t/a Spoornet [2002] 3 All SA 635 (C)
275, 277 10 178 311 20 15 302 206
67, 114, 116 285
23 Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd [2001] 2 All SA 506 (W); 2001 (4) SA 211 (W) 64 Luzon Investments (Pty) Ltd v Strand Municipality 1990 (1) SA 215 (C) Lynco Plant Hire & Sales BK v Univem Versekeringsmakelaars BK 2002 (5) SA 85 (T)
132, 244 201
Pleadings/Amlers Precedents of Pleadings/Table of Cases/M M M NO v M 1991 (4) SA 587 (D) Maartens v Pope 1992 (4) SA 883 (N) Mabaso v Felix 1981 (3) SA 865 (A) MacDonald, Forman & Co Ltd v Van Aswegen 1963 (3) SA 173 (O) MacFarlane v Crooke 1951 (3) SA 256 (C) Mackay v Legal Aid Board 2003 (1) SA 271 (SE) Macleod v Rens [1997] 1 All SA 143 (E); 1997 (3) SA 1039 (E) Macu v Du Toit 1983 (4) SA 629 (A) Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 Madyosi v SA Eagle Insurance Co Ltd 1989 (3) SA 178 (C); 1990 (3) SA 442 (A) Magna Alloys & Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) Magware v Minister of Health NO 1981 (4) SA 472 (Z) Magwaza v Heenan 1979 (2) SA 1019 (A) Mahabeer v Sharma NO 1983 (4) SA 421 (D) Mahabeer v Sharma NO 1985 (3) SA 729 (A) Mahomed v Kassim 1973 (2) SA 1 (RA) Mahomed v Mahomed 1976 (3) SA 151 (T) Mahomed v Nagdee 1952 (1) SA 410 (A) Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC [1997] 3 All SA 451 (C); 1998 (2) SA 468 (C) 102, 104 Maisela v Kgolane NO [2000] 1 All SA 658 (T); 2000 (2) SA 370 (T) Maja v SA Eagle Ins Co Ltd 1990 (2) SA 701 (A) Makings v Makings 1958 (1) SA 338 (A)
62 12 43, 44, 45, 107 15 235 49 257 45 324 257, 285 304 242 299 356 99, 356 134, 139, 141 132 312
126 130 212
Malahe v Minister of Safety and Security [1998] 4 All SA 246 (A); 1999 (1) SA 528 (SCA) Malherbe v Ceres Municipality 1951 (4) SA 510 (A) Malherbe v Eskom 2002 (4) SA 497 (O) Malherbe v Van Rensburg 1970 (4) SA 78 (C) Malilang v MV Houda Pearl 1986 (2) SA 714 (A) Mallinson v Tanner 1947 (4) SA 681 (T) Malokoane v Multilateral Motor Vehicle Accidents Fund [1998] 4 All SA 486 (A); 1999 (1) SA 544 (A) 251 MAN Truck & Bus (SA) (Pty) Ltd v Singh (2) 1976 (4) SA 266 (N) Manase v Min 2003 (1) SA 567 (Ck) Mancisco and Sons CC (in liq) v Stone 2001 (1) SA 168 (W)
45 267, 268 353 345 157 23
327 239 227
Manderson t/a Hillcrest Electrical v Standard General Insurance Co Ltd 1996 (3) SA 434 (D) Mangope v Asmal 1997 (4) SA 277 (T)
201 135
Manley Van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai Mann v Sidney Hunt Motors (Pty) Ltd 1958 (2) SA 102 (G) Mannesmann Demag (Pty) Ltd v Romatex Ltd 1988 (4) SA 383 (D) Manqalaza v MEC for Safety & Security, Eastern Cape [2001] 3 All SA 255 (Tk) Maphiri v Road Accident Fund 2002 (6) SA 383 (W) Marais NNO v Ruskin NO 1985 (4) SA 659 (A) Marais v Bezuidenhout 1999 (3) SA 988 (W) Marais v Engler Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais 1998 (2) SA 450 (E) 196 Marais v Groenewald [2000] 2 All SA 578 (T); 2001 (1) SA 634 (T) Marais v Richard 1981 (1) SA 1157 (A) Marais v Standard Credit Corporation Ltd 2002 (4) SA 892 (W) Marais v Steyn 1975 (3) SA 479 (T) Maree v Botha 1992 (3) SA 230 (T) Maree v Diedericks 1962 (1) SA 231 (T) Marine & Trade Insurance Co Ltd v Van Heerden NO 1977 (3) SA 553 (A) Maritime Motors (Pty) Ltd v Von Steiger 2001 (2) SA 584 (SE) Marks & Kantor v Van Diggelen 1935 TPD 29 Marks Ltd v Laughton 1920 AD 12 Marques v Unibank Ltd [2000] 4 All SA 146 (W); 2001 (1) SA 145 (W) Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) Marshall v Bull Quip (Pty) Ltd 1983 (1) SA 23 (A) Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens; Qwa Qwa Regeringsdiens v Martin Harris & Seuns OVS (Edms) Bpk [2000] 2 All SA 72 (A); 2000 (3) SA 339 (SCA) 36, 233, 246 Masinga v Minister of Justice, KwaZulu Government 1995 (3) SA 214 (A) Masters v Thalia Thain t/a Inhaca Safaris [1999] 4 All SA 618 (W); 2000 (1) SA 467 (W) Masuku v Mdlalose [1997] 3 All SA 339 (A); 1998 (1) SA 1 (SCA) Maswanganyi v First National Western Bank Ltd 2002 (3) SA 365 (W) Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C) Mathews v Rabinowitz 1948 (2) SA 876 (W) Mathipa v Vista University 2000 (1) SA 396 (T) Matlou v Makhubedu 1978 (1) SA 946 (A) Matthews v Pretorius 1984 (3) SA 547 (W) Matyeka v Kaaber 1960 (4) SA 900 (T) Matyila v Matyila 1987 (3) SA 230 (W) Maw v Keith-Reed 1975 (4) SA 603 (C) May v Udwin 1981 (1) SA 1 (A) Mayer v Williams 1981 (3) SA 348 (A)
166, 300 283 40 361 66 35
137, 140 142 119 134, 139 162 11 202 262 228 334 120 236 68, 69
160 102 314, 319, 348 120 99, 169, 351 326 298 44 108 114 151 35 142 311
Mbhele v Natal Parks, Game & Fish Preservation Board 1980 (4) SA 303 (D) 359
MCC Bazaar v Harris & Jones (Pty) Ltd 1954 (3) SA 158 (T) MCC Contracts (Pty) Ltd v Coertzen [1998] 4 All SA 503 (A); 1998 (4) SA 1046 (SCA)
187 335
McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C)
259, 260
McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (A); 2001 (3) SA 482 (SCA) 86, 87, 89, 226 McCarthy v Constantia Property Owners’ Association [1999] 4 All SA 1 (C); 1999 (4) SA 847 (C) 354 McCullogh v Fernwood Estate Ltd 1920 AD 204
82
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd [1996] 4 All SA 1 (A); 1997 (1) SA 1 (A) 278, 337 McEwen NO v Khader 1969 (4) SA 559 (N)
263
McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W) McKelvey v Deton Engineering (Pty) Ltd [1997] 3 All SA 569 (A); 1998 (1) SA 374 (SCA)
122, 230 282
McNicol v Delport NO 1980 (4) SA 287 (W)
15
McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A)
95
Mdakane v Standard Bank of South Africa Ltd [1998] 3 All SA 1 (W); 1999 (1) SA 127 (W)
120
Mdlulu v Delarey [1998] 1 All SA 434 (W)
359
Meevis v Coetzee [1998] 2 All SA 602 (T)
239
Melamed v BP Southern Africa (Pty) Ltd [2000] 1 All SA 342 (W); 2000 (2) SA 614 (W) Mervis Brothers v Interior Acoustics 1999 (3) SA 607 (W)
90 33
Messina Associated Carriers v Kleinhaus [2001] 3 All SA 285 (A); 2001 (3) SA 868 (SCA) Metiso v Padongelukfonds [2002] 1 All SA 291 (T); 2001 (3) SA 1142 (T) Metje & Ziegler Ltd v Stauch, Vorster & Partners 1972 (4) SA 679 (SWA) Metro Goldwyn-Mayer Incorporated v Ackerman [1996] 1 All SA 584 (SE) Meyer NO v Transvaalse Lewendehawe Koöperasie Bpk 1982 (4) SA 746 (A)
126 115 112 197
Meyer v Keiser 1980 (3) SA 504 (D)
161, 162
Meyer v Kirner 1974 (4) SA 90 (N)
299
Meyer v Merchants Trust Ltd 1942 AD 244
298
Meyerson v Health Beverages (Pty) Ltd 1989 (4) SA 667 (C)
315
Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk)
40
Mhlongo NO v Minister of Police 1978 (2) SA 551 (A)
319
Microutsicos v Swart 1949 (3) SA 715 (A)
247
Middleton v Carr 1949 (2) SA 374 (A)
23, 233, 235
Midway Two Engineering & Construction Services BK v Transnet Bpk [1998] 2 All SA 451 (A); 1998 (3) SA 17 (SCA) 347, 349 Miele et Cie GmbH & Co v Euro Electrical (Pty) Ltd 1988 (2) SA 583 (A)
338
Miller & Miller v Dickinson 1971 (3) SA 581 (A)
99, 247
Miller v Muller 1965 (4) SA 458 (C)
313, 341
Miller v Road Accident Fund [1999] 4 All SA 560 (W) Millman NO v Masterbond Participation Bond Trust Managers (Pty) Ltd (under curatorship) [1997] 1 All SA 408 (C); 1997 (1) SA 113 (C) Milne, Estate v Donohoe Investments (Pty) Ltd 1967 (2) SA 359 (A)
347
250 328
3, 32 Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W)
137, 193
Minister of Communications & Public Works v Renown Food Products 1988 (4) SA 151 (C) 224
Minister of Correctional Services v Kwakwa [2002] 3 All SA 242 (A); 2002 (4) SA 455 (SCA)
39
Minister of Defence v Mkhatswa [1997] 3 All SA 376 (W)
256
Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N); 1998 (2) SA 319 (N) 41, 42, 44, 193, 239
Minister of Finance v Ramos 1998 (4) SA 1096 (C) Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A)
223, 344
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A)
39, 41, 44, 191, 192
Minister of Justice, Ex parte 1978 (2) SA 572 (A)
123
Minister of Law and Order v Hurley 1986 (3) SA 568 (A)
40, 41
Minister of Law and Order v Kadir 1995 (1) SA 303 (A)
222, 223
Minister of Law and Order v Milne 1998 (1) SA 289 (W)
45
Minister of Law and Order v Monti 1995 (1) SA 35 (A)
44, 47
Minister of Law and Order v Ngobo 1992 (4) SA 822 (A)
44, 348
Minister of Law and Order v Thusi 1994 (2) SA 224 (N)
238
Minister of Police v Mbilini 1983 (3) SA 705 (A)
190, 191, 348
Minister of Police v Skosana 1977 (1) SA 31 (A) Minister of Safety and Security, Ex parte: In re: S v Walters 2002 (4) SA 613 (CC) Minister of Safety and Security v Molutsi 1996 (4) SA 72 (A) Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA); 2002 (6) SA 431 (SCA) Minister van Justisie v Jaffer 1995 (1) SA 273 (A)
318
224 45, 46 287
43, 223, 257
Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) Minister van Landbou-Tegniese Dienste v Scholtz 1971 (3) SA 188 (A) Minister van Polisie v Chetty 1977 (2) SA 885 (A) Minister van Polisie v Ewels 1975 (3) SA 590 (A) Minister van Polisie v Gamble 1979 (4) SA 759 (A) Minister van Polisie v Goldschagg 1981 (1) SA 37 (A) Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101 (A) Minister van Veiligheid en Sekuriteit v Japmoco 2002 (5) SA 649 (SCA) Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 (5) SA 475 (SCA) Minister van Wet & Orde v Jacobs 1999 (1) SA 944 (O) Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) Minister van Wet en Orde v Ntsane 1993 (1) SA 560 (A); 1993 (1) SACR 256 (A) Minnaar v Rautenbach [1999] 1 All SA 571 (NC)
87 291 215 11 223, 242 39, 44, 319 40 224 348 348 129 40 107 291
Mistry v Interim National Medical & Dental Council of South Africa [1997] 3 All SA 519 (D) 39
Mitchell’s Plain Town Centre Merchants Association v McLeod [1996] 3 All SA 297 (A); 1996 (4) SA 159 (SCA) 74, 354 Mittermeier v Skema Engineering (Pty) Ltd 1984 (1) SA 121 (A) Mkangeli v Joubert [2002] 2 All SA 473 (A); 2002 (4) SA 36 (SCA) Mkize v Lourens 2003 (3) SA 292 (T) Mkize v Martens 1914 AD 382 Mlombo v Fourie 1964 (3) SA 350 (T) Mmabatho Food Corp (Pty) Ltd v Fourie 1985 (1) SA 318 (T) Mnweba v Maharaj [2001] 1 All SA 265 (C) Moaki v Reckitt & Colman (Africa) Ltd 1968 (1) SA 702 (W) Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A) Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (A) Mograbi v Miller 1956 (4) SA 239 (T) Mohamed v Jassiem 1996 (1) SA 673 (A) Mokoele v National Employers’ General Insurance Co Ltd 1984 (1) SA 27 (T) Molefe v Mahaeng [1998] 4 All SA 423 (A); 1999 (1) SA 562 (SCA) Moller v SA Railways & Harbours 1969 (3) SA 374 (N) Moloi v Road Accident Fund [2000] 4 All SA 576 (A); 2001 (3) SA 546 (SCA) Montesse Township & Investment Corp (Pty) Ltd v Gouws NO 1965 (4) SA 373 (A) Montsisi v Minister van Polisie 1984 (1) SA 619 (A) Moraitis v De Canha 1984 (1) SA 420 (W) Morettino v Italian Design Experience CC [2000] 4 All SA 158 (W) Morgan v Brittan Boustred Ltd 1992 (2) SA 775 (A) Morkel v Kruger-Liptrot [2000] 4 All SA 623 (C) Morris v Benson and Hedges 2000 (3) SA 1092 (W) Morrison v Standard Building Society 1932 AD 229 Mörsner v Len 1992 (3) SA 626 (A) Mort NO v Chiat [2000] 2 All SA 515 (C); 2001 (1) SA 464 (C) Mosam v De Kamper 1964 (3) SA 794 (T) Moses v Min for Safety & Security [2000] 1 All SA 89 (C); 2000 (3) SA 106 (C) Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 (3) SA 896 (T) Mostert NO v Old Mutual Life Assurance Co (SA) Ltd [2001] 4 All SA 250 (A); 2001 (4) SA 159 (SCA) 102, 220 Motani Lounge (Pty) Ltd v Standard Bank of SA Ltd 1995 (2) SA 498 (W) Motion Transfer & Precision Roll Grinding CC v Carsten [1998] 4 All SA 168 (N) Motor Marine (Edms) Bpk v Thermotron 1985 (2) SA 127 (SE) Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd [1996] 4 All SA 601 (A); 1996 (4) SA 950 (A) 172 Mountbatten Investments (Pty) Ltd v Mahomed 1989 (1) SA 172 (D) Mouton v Boland Bank Ltd [2001] 3 All SA 485 (SCA); 2001 (3) SA 877 (SCA) Mouton v Hanekom 1959 (3) SA 35 (A) Mouton v Mynwerkersunie 1977 (1) SA 119 (A)
269 170, 288 215 348 350 272 49 192 191, 192, 239 99 134, 135 135 250 257 266, 267, 323 251, 293 355, 356 322 69 316 328 239 112, 147 354 172 23, 48 15 48 265, 267
313 93 212
176 77 299
51 Mouton v Smith 1977 (3) SA 1 (A) Moyse v Mujuru 1999 (3) SA 39 (ZSC) Mufamadi v Dorbyl Finance (Pty) Ltd 1996 (1) SA 799 (A) Mühlmann v Mühlmann 1984 (1) SA 97 (A) Mühlmann v Mühlmann 1984 (3) SA 102 (A) Mukheiber v Raath [1999] 3 All SA 490 (A); 1999 (3) SA 1065 (SCA)
36 134 102 152 95, 271 241
Muller v Botswana Development [2002] 3 All SA 663 (SCA); 2003 (1) SA 651 (SCA) Muller v Coca-Cola Sabco (SA) (Pty) Ltd 1998 (2) SA 824 (SE) Muller v Möller 1965 (1) SA 872 (C) Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C); 2001 (1) SA 313 (C) 22, 95, 163 Muller v Pienaar 1968 (3) SA 195 (A) Multi Tube Systems (Pty) Ltd v Ponting 1984 (3) SA 182 (D) Multilateral Motor Vehicle Accidents Fund v Marambana [1996] 3 All SA 8 (A); 1996 (4) SA 48 (A) 249 Multilateral Motor Vehicle Accidents Fund v Thabede 1994 (2) SA 610 (N) Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd 1983 (1) SA 709 (A) 282 Municipality of Stellenbosch v Levinsohn 1911 CPD 303 Munira Investments (Pty) Ltd v Flash Clothing Manufacturers (Pty) Ltd 1980 (1) SA 326 (D) Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A) 293 Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A)
115, 328 75 214
271 93
96
266 67
174
Mutual & Federal Insurance Co Ltd v Day [2001] 4 All SA 6 (SCA); 2001 (3) SA 775 (SCA) Mutual & Federal Insurance Co Ltd v Kok 1985 (2) SA 225 (TkA) Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A) MV Sea Joy, The: Owners of the Cargo Lately Laden on Board the MV Sea Joy v The MV Sea Joy [1997] 4 All SA 191 (C); 1998 (1) SA 487 (C) 206, 207 MV Stella Tignas: Transnet Ltd t/a Portnet v Owners of the MV Stella Tignas 2003 (2) SA 473 (SCA) 258 Myburgh v Walters NO 2001 (2) SA 127 (C) Myers v Abramson 1951 (3) SA 438 (C)
250 362 201
22 100
Pleadings/Amlers Precedents of Pleadings/Table of Cases/N N Nach Investments (Pty) Ltd v Knight Frank SA (Pty) Ltd [2001] 3 All SA 295 (SCA) Namibian Minerals Corporation v Benguela Concessions Ltd [1997] 1 All SA 191 (A); 1997 (2) SA 548 (A) 97 Nampak Products Ltd v Man-Dirk (Pty) Ltd [1999] 2 All SA 543 (SCA); 1999 (3) SA 708 (SCA) 280 Nampak Products Ltd t/a Nampak Flexible Packaging v Sweetcor (Pty) Ltd 1981 (4) SA 919 (T) 68 Napier v Collett 1995 (3) SA 140 (A) Narayanasamy v Venkatrathnam 1979 (3) SA 1360 (D) Nash v Golden Dumps (Pty) Ltd 1985 (3) SA 1 (A) Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (N)
163
201 5, 272 301 222, 224
Natalse Landboukoöperasie Bpk v Fick 1982 (4) SA 287 (N) National & Overseas Distributors Corp (Pty) Ltd v Potato Board 1958 (2) SA 473 (A)
245
National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd 2001 (3) SA 563 (SCA)
338
National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 (3) SA 1092 (T)
304
National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA) National Media Ltd v Jooste [1996] 2 All SA 510 (A); 1996 (3) SA 262 (A)
133, 134, 136, 137, 140, 141, 143, 192
National Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v International Liquor Distributors (Pty) Ltd [2001] 1 All SA 417 (A); 2001 (2) SA 232 (SCA)
190, 192
100, 109, 121, 128, 303
National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984 National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T)
139, 140 316
Naudé v Ecoman Investments 1994 (2) SA 95 (T)
346
Navidas (Pty) Ltd v Essop, Metha v Essop 1994 (4) SA 141 (A)
69
NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (A); 2002 (1) SA 396 (SCA) NBS Boland Bank v One Berg River Drive; Deeb v ABSA Bank Ltd; Friedman v Standard Bank of SA Ltd [1999] 4 All SA 183 (A); 1999 (4) SA 928 (SCA) Ncqula v Muller’s Book Shop 1960 (4) SA 300 (E)
214
22, 56, 167 29
Ndamse v University College of Fort Hare 1966 (4) SA 137 (E)
23 192
Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA); 2003 (1) SA 113 (SCA) Nedbank Ltd v Aldick 1981 (3) SA 1007 (D) Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika [2001] 1 All SA 107 (A); 2001 (1) SA 987 (SCA) 294 Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd [2000] 4 All SA 393 (A); 2000 (4) SA 915 (SCA) 59, 107 Nedcor Bank Ltd v ABSA Bank 1995 (4) SA 727 (W) Nedcor Bank Ltd v D & A Transport (Gauteng) CC 2001 (4) SA 74 (W) Nedcor Bank Ltd v Hennop 2003 (3) SA 622 (T) Nedcor Bank Ltd v Withinshaw Properties (Pty) Ltd 2002 (6) SA 236 (C) Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) Neethling v Klopper 1967 (4) SA 459 (A) Nel v Cloete 1972 (2) SA 150 (A) Nel v Dobie 1966 (3) SA 352 (N) Nel v Drilec (Pty) Ltd 1976 (3) SA 79 (D) Nel v Louw 1955 (1) SA 107 (C) Nel v Nelspruit Motors (Edms) Bpk 1961 (1) SA 582 (A) Nell, Ex parte 1963 (1) SA 754 (A) Nelson v Hodgetts Timbers (East London) (Pty) Ltd 1973 (3) SA 37 (A) Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A) Nestlé (SA) (Pty) Ltd v Mars Inc [2001] 4 All SA 315 (A); 2001 (4) SA 542 (SCA) Netlon Ltd v Pacnet (Pty) Ltd 1977 (3) SA 840 (A) Neuhoff v York Timbers Ltd 1981 (4) SA 666 (T)
170, 171 68
14 121 73 220 134, 141, 142 30 247 219 304 345 96 131, 132 328 329 228 355
299 New Age Press Ltd v O’Keefe 1947 (1) SA 311 (W)
136
New Club Garage v Milborrow & Son 1931 GWL 86
262
Ngcobo v Santam Insurance Co Ltd 1994 (2) SA 478 (T)
361
Ngubane v SA Transport Services 1991 (1) SA 756 (A)
128
Nicolaides v Skordis 1973 (2) 730 (N)
35
Nine Hundred Umgeni Road (Pty) Ltd v Bali 1986 (1) SA 1 (A) Nkisimane v Santam Insurance Co Ltd 1978 (2) SA 430 (A) NKP Kunsmisverspreiders (Edms) Bpk v Sentrale Kunsmis Korp (Edms) Bpk 1973 (2) SA 680 (T) 334 Norris v Road Accident Fund [2001] 4 All SA 321 (A) North & Son (Pty) Ltd v Albertyn 1962 (2) SA 212 (A)
81 251
250 104
North West Arts Council v Sekhabi [1996] 3 All SA 361 (B)
262
Northern Assurance Co Ltd v Delbrook-Jones 1966 (3) SA 176 (T) Novick v Benjamin 1972 (2) SA 842 (A)
330 101, 102, 301
Novick v Comair Holdings Ltd 1979 (2) SA 116 (W)
195, 260
NPC Electronics Ltd v S Taitz Kaplan and Company [1998] 1 All SA 390 (W) Ntai v Vereeniging Town Council 1953 (4) SA 579 (A)
3 318
Ntshiqa v Andreas Supermarket (Pty) Ltd [1996] 3 All SA 154 (Tk); 1997 (1) SA 184 (Tk) Ntshiqa v Andreas Supermarket (Pty) Ltd 1997 (3) SA 60 (Tk)
220, 228 220
Ntuli v Ntuli 1946 TPD 181 Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A); [1997] 1 All SA 11 (A) 186, 189 Nusca v Nusca 1995 (4) SA 813 (T)
210
5, 6
Nyoka v Legal Aid Board [1997] 4 All SA 593 (E)
32 Pleadings/Amlers Precedents of Pleadings/Table of Cases/O
O’Callaghan NO v Chaplin 1927 AD 310
O
O’Connell, Manthe, Cragg & Partners v Charles 1970 (1) SA 7 (E) Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd 1976 (1) SA 441 (A) Oberholzer v Padraad van Outjo 1974 (2) SA 168 (SWA) Obotseng v Lebone 1994 (4) SA 88 (BG) Ocean Diners (Pty) Ltd v Golden Hill Construction CC 1993 (3) SA 331 (A) Oceana Leasing Services (Pty) Ltd v BG Motors (Pty) Ltd 1980 (3) SA 267 (W) Oceanair (Natal) (Pty) Ltd v Sher 1980 (1) SA 317 (D) Odendaal v Du Plessis 1918 AD 470 Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T) Oelofsen NO v Cigna Insurance Co of SA Ltd 1991 (1) SA 74 (T) Oerlikon SA (Pty) Ltd v Johannesburg City Council 1970 (3) SA 579 (A) Oertel NNO v Direkteur van Plaaslike Bestuur 1983 (1) SA 354 (A)
10, 11 36 167, 351 345 348 36, 37 226 329 335 262, 263 205 189 294
Oertel NO v Brink 1972 (3) SA 669 (W) Offit Enterprises (Pty) Ltd v Knysna Development Co (Pty) Ltd 1987 (4) SA 24 (C) OK Bazaars 1929 Ltd v Stern and Ekermans 1976 (2) SA 521 (C) Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA)
286 299 64 324
Olivier v Van der Bergh 1956 (1) SA 802 (C) Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd 1978 (3) SA 465 (A) Omega Louis Brandt et Frere SA v African Textile Distributors 1982 (1) SA 951 (T) Ongevallekommissaris v Santam Bpk [1998] 4 All SA 507 (A); 1999 (1) SA 251 (SCA) Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) Oos-Transvaalse Koöperasie Bpk v Heyns 1986 (4) SA 1059 (O) Optima Fertilizers (Pty) Ltd v Turner 1968 (4) SA 29 (D)
357, 358 147, 281 275 128 117, 119, 120 157 265
Optimprops 1030 CC v First National Bank of SA [2001] 2 All SA 24 (D) Optimprops 1030 CC v First National Bank of SA [2002] 4 All SA 582 (N) Oranje Benefit Society v Central Merchant Bank Ltd 1976 (4) SA 659 (A) Orchison, Ex parte 1952 (3) SA 66 (T)
71 71 354 105
Osborne Panama SA v Shell & BP SA Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A) Oslo Land Co Ltd v The Union Government 1938 AD 584
222 217
Osman v Standard Bank National Credit Corp Ltd 1985 (2) SA 378 (C) Ovland Managemant (Tvl) (Pty) Ltd v Petprin (Pty) Ltd 1995 (3) SA 276 (N) Owsianick v African Consol Theatres (Pty) Ltd 1967 (3) SA 310 (A) Ozinsky NO v Lloyd 1992 (3) SA 396 (C); 1995 (2) SA 915 (A)
244 67 290 80, 184
Pleadings/Amlers Precedents of Pleadings/Table of Cases/P P Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) Padiachy v Motor Mecca JHB CC 2002 (4) SA 351 (W) Palabora Mining Co Ltd v Coetzer 1993 (3) SA 306 (T) Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A) Palmer v Poulter 1983 (4) SA 11 (T) Papp v Legal & General Assurance Society Ltd 1966 (2) SA 113 (E) Par Excellence Colour Printing (Pty) Ltd v Ronnie Cox Graphic Supplies (Pty) Ltd 1983 (1) SA 295 (A) 281 Paradise Lost Properties (Pty) Ltd v Standard Bank of SA (Pty) Ltd 1997 (2) SA 815 (D) Parekh v Shah Jehan Cinemas (Pty) Ltd 1980 (1) SA 301 (D) Parekh v Shah Jehan Cinemas 1982 (3) SA 618 (D) Parker v Dorbyl Finance (Pty) Ltd 1997 (1) SA 862 (SCA) Pataka v Keefe 1947 (2) SA 962 (A) Patel v Adam 1977 (2) SA 653 (A) Patel v Grobbelaar 1974 (1) SA 532 (A) Patel v Paruk’s Trustee 1944 AD 469
109, 185 144 220 90 356 227
221 32, 33 79 117 272 29, 87 341 196
Paterson Exhibitions CC v Knights Advertising and Marketing CC 1991 (3) SA 523 (A) Patz v Greene & Co 1907 TS 427 Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A) Peacock v Marley 1934 AD 1 Peffers NO v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1965 (2) SA 53 (C) 51 Penderis & Gutman NNO v Liquidators, Short-Term Business, AA Mutual Ins Assocn Ltd 1992 (4) SA 836 (A) 202 Pennefather v Gokul 1960 (4) SA 42 (N) Pentz v Government of the RSA 1983 (3) SA 584 (A) Pentz v Gross 1996 (2) SA 518 (C) Pepsico Inc v United Tobacco Co Ltd 1988 (2) SA 334 (W) Perdikis v Jamieson [2002] 4 All SA 560 (W); 2002 (6) SA 356 (W) Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A) Peri-Urban Areas Health Board v Breet NO 1958 (3) SA 783 (T) Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) Perumal v Govender 1997 (3) SA 644 (N) Pete’s Warehousing and Sales CC v Bowsink Investments CC [2000] 2 All SA 266 (E); 2000 (3) SA 833 (E) 96 Peter Cooper & Co (Previously Cooper & Ferreira) v De Vos [1998] 2 All SA 237 (E) Peters Flamman & Co v Kokstad Municipality 1919 AD 427 Peters NO v Schoeman [2001] 1 All SA 155 (A); 2001 (1) SA 872 (SCA) Pezzutto v Dreyer 1992 (3) SA 379 (A) Pfeiffer v First National Bank of SA Ltd [1998] 3 All SA 397 (A); 1998 (3) SA 1018 (SCA)
334 324 278, 342 315
176 295 14 275 32 201, 202, 203 167 223, 349 161
227, 330 189 82, 100 271 283
PG Bison Ltd v Master of the High Court [2000] 1 All SA 363 (SCA); 2000 (1) SA 859 (A) Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A) Pheasant v Warne 1922 AD 481 Philip Morris Inc v Marlboro Shirt Co SA Ltd 1991 (2) SA 720 (A) Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) Phillips v Aida Real Estate (Pty) Ltd 1975 (3) SA 198 (A) Phillips v General Accident Insurance Co (SA) Ltd 1983 (4) SA 652 (W) Phillips Estate (Pvt) Ltd v Braunstein 1964 (3) SA 818 (SR) Philmatt (Pty) Ltd v Mosselbank Developments CC [1996] 1 All SA 296 (A); 1996 (2) SA 15 (SCA) 29, 167 Philotex (Pty) Ltd v Snyman, Braitex (Pty) Ltd v Snyman 1998 (2) SA 138 (SCA) Pick ’n Pay Stores Ltd v Teazers Comedy and Revue CC [2000] 2 All SA 604 (W); 2000 (3) SA 645) (W) 270 Pienaar v Fortuin 1977 (4) SA 428 (T) Pienaar v Maritz t/a JJ Coal Suppliers 1985 (1) SA 547 (T) Pienaar v Minister van Landbou 1972 (1) SA 14 (T) Pienaar v Pienaar 2000 (1) SA 231 (O) Pienaar v Rabie 1983 (3) SA 126 (A) Pienaar v Southern Insurance Association Ltd 1983 (1) SA 917 (C)
67 195, 260 242 276 6, 7, 128, 350 163 200 280
80
307 68 177 48 291
356 Pieters v Botha 1989 (3) SA 607 (T)
10
Pillai v Pillai 1963 (4) SA 838 (A)
311
Pillay v Krishna 1946 AD 946
144, 283
Pillay v Naidoo 1916 WLD 151
135
Pine Designs (Pty) Ltd v Abt 1976 (3) SA 795 (O)
69
Pitout v Mbolane [2000] 2 All SA 377 (LCC)
170
Pizani v First Consolidated Holdings (Pty) Ltd 1979 (1) SA 69 (A) Plaaslike Boeredienste(Edms) Bpk v Chemfos Bpk 1986 (1) SA 819 (A) Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) Pledge Investments (Pty) Ltd v Kramer NO: In re Estate Selesnik 1975 (3) SA 696 (A) Polakow Bros (Pty) Ltd v Gershlowitz 1976 (1) SA 863 (SE) Policansky Bros Ltd v L & H Policansky 1935 AD 89
328 24 338, 341 54 275 275
Polysius (Pty) Ltd v Transvaal Alloys (Pty) Ltd 1983 (2) SA 630 (W) Ponisammy v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A) Porritt v Molefe 1982 (3) SA 76 (A)
33 246, 247 344
Porter v Cape Town City Council 1961 (4) SA 278 (C)
266
Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C) Portion 1 of 46 Wadeville (Pty) Ltd v Unity Cutlery (Pty) Ltd 1984 (1) SA 61 (A)
66
Portwood v Svamvur 1970 (4) SA 8 (RA) Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd 1970 (1) SA 454 (T) Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZHC) 133 Potchefstroomse Stadsraad v Kotze 1960 (3) SA 616 (A)
57, 59, 284
Powertech Industries Ltd v Mayberry [1996] 1 All SA 561 (W); 1996 (2) SA 742 (W) PPI Makelaars v Professional Provident Society of South Africa [1997] 4 All SA 444 (A); 1998 (1) SA 595 (SCA) 337 Precismeca Ltd v Melco Mining Supplies (Pty) Ltd 2003 (1) SA 664 (SCA) Preller v Jordaan 1956 (1) SA 483 (A)
1, 2
279 341
Premier Finance Corporation (Pty) Ltd v McKie 1979 (3) SA 1308 (T)
123
89
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A) President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk 1989 (1) SA 208 (A) Pressma Services (Pty) Ltd v Schuttler 1990 (2) SA 411 (C)
Pretorius v Botha 1961 (4) SA 722 (T)
194
10
Powell v ABSA Bank Ltd t/a Volkskas Bank [1997] 4 All SA 231 (SE); 1998 (2) SA 807 (SE)
Preston v Vredendal Co-Operative Winery Ltd [2000] 4 All SA 492 (E); 2001 (1) SA 244 (E)
11
21
Potgieter v Smit 1985 (2) SA 690 (D)
Premier, Free State v Firechem Free State (Pty) Ltd [2000] 3 All SA 247 (SCA); 2000 (4) SA 413 (SCA) Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134 (A); 1997 (1) SA 416 (SCA)
313
146, 343 293 201 80 131 210
Pretorius v Erasmus 1975 (2) SA 765 (T) Pretorius v Fourie NO 1962 (2) SA 280 (O) Pretorius v Loudon 1985 (3) SA 845 (A) Pretorius v McCallum 2002 (2) SA 423 (C) Pretorius NO v Stock Owners’ Co-operative Co Ltd 1959 (4) SA 462 (A) Price v IGI Ltd 1983 (1) SA 311 (A) Prima Toy Holdings (Pty) Ltd v Rosenberg 1974 (2) SA 477 (C) Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) Prins v ABSA Bank Ltd [1997] 1 All SA 486 (C); 1998 (3) SA 904 (C) Prins v Universiteit van Pretoria 1980 (2) SA 171 (T) Prinsloo v Du Plooy 1952 (4) SA 219 (O) Prinsloo v Newman 1975 (1) SA 481 (A) Prinsloo v Shaw 1938 AD 570 Prinsloo v van der Linde 1997 (3) SA 1012 (CC) Prinsloo v Woolbrokers Federation Ltd 1955 (2) SA 298 (N) Probert v Baker 1983 (3) SA 229 (D) Proksch v Die Meester 1969 (4) SA 567 (A) Protea Assurance Co Ltd v Matinise 1978 (1) SA 963 (A) Protea Holdings Ltd v Herzberg 1982 (4) SA 773 (C) Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund 1981 (3) SA 539 (W) 50 Province of the Free State v Williams NO [2000] 2 All SA 172 (A); 2000 (3) SA 65 (SCA) Provincial Building Society of SA v PR Wade & Co (Pty) Ltd (in liq) 1967 (1) SA 121 (N) Provincial Government of the Eastern Cape and others v Contractprops 25 (Pty) Ltd [2001] 4 All SA 273 (A); 2001 (4) SA 142 (SCA) 167 Provinsiale Administrasie, Kaap die Goeie Hoop v Swart 1988 (1) SA 375 (C) Purdon v Muller 1961 (2) SA 211 (A) Purser v Sales; Purser v Sales [2001] 1 All SA 25 (SCA); 2001 (3) SA 445 (SCA) Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A)
23 315 167 48 197 201 184 241 245 159, 160, 161 44 40, 192, 238 266 344 15 102, 261 329 250 105
295 36
177 271 181 99
Pleadings/Amlers Precedents of Pleadings/Table of Cases/Q Q Qilingele v SA Mutual Life Assurance Society 1993 (1) SA 69 (A) Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272 Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 (3) SA 188 (A)
202 289 167
Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (Tk) 318 Pleadings/Amlers Precedents of Pleadings/Table of Cases/R R R & I Laboratories (Pty) Ltd v Beauty Without Cruelty International 1990 (3) SA 746 (C) R v Klisser & Rosenberg 1949 (3) SA 807 (W) Rabinowitz NNO v Ned-Equity Insurance Co Ltd 1980 (1) SA 403 (W)
194 326
203 Radebe v Eastern Transvaal Development Board 1988 (2) SA 785 (A)
285
Rademeyer v Rademeyer 1968 (3) SA 1 (C)
211
Rademeyer v Western Districts Council [1998] 2 All SA 547 (SE); 1998 (3) SA 1011 (SE) 266
Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd 1951 (1) SA 312 (C)
103, 334
Rahim v Minister of Justice 1964 (4) SA 630 (A)
87
Ramnath v Bunsee 1961 (1) SA 394 (N)
219
Rampal (Pty) Ltd v Brett, Wills & Partners 1981 (4) SA 360 (D)
51
Ramsay v Minister van Polisie 1981 (4) SA 802 (A)
41, 192, 239
Ramsukh v Diesel-Electric (Natal) (Pty) Ltd [1997] 3 All SA 209 (A); 1997 (4) SA 242 (SCA)
69
Rand Bank Bpk v Regering van die RSA 1975 (3) SA 726 (A)
227
Rand Bank Ltd v Rubenstein 1981 (2) SA 207 (W)
185
Rand Waterraad v Bothma 1997 (3) SA 120 (O)
161, 162
Randaree NNO v WH Dixon & Associates 1983 (2) SA 1 (A)
37, 232
Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 (4) SA 363 (A)
24, 183
Randburg Town Council v Kerksay Investments (Pty) Ltd [1997] 4 All SA 121 (A); 1998 (1) SA 98 (SCA) 178 Randcon (Natal) (Pty) Ltd v Florida Twin Estates (Pty) Ltd 1973 (4) SA 181 (D)
37
Randles, Ex parte: In re King v King [1998] 2 All SA 412 (D)
152
Ranger v Wykerd 1977 (2) SA 976 (A)
128, 184
Ras v Simpson 1904 TS 254
121
Rauff v Standard Bank Properties 2002 (6) SA 693 (W)
360
Reck v Mills 1990 (1) SA 751 (A)
317
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A) 276, 277
Rectifier & Communication Systems (Pty) Ltd v Harrison 1981 (2) SA 283 (C)
5, 130
Reddy v Durban Corp 1939 AD 293
267
Reeder v Softline [2000] 4 All SA 105 (W); 2001 (2) SA 844 (W)
152
Reeves v Marfield Ins Brokers CC 1996 (3) SA 766 (A)
186, 304
Refrigerated Trucking (Pty) Ltd v Zive NO (Aegis Insurance Co Ltd, Third Party) 1996 (2) SA 361 (T) 201 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) Regering van die Republiek van Suid-Afrika, Die v Santam Versekeringsmaatskappy Bpk 1964 (1) SA 546 (W) 74 Regering van die RSA v SA Eagle Versekeringsmaatskappy Bpk 1985 (2) SA 42 (O)
295
Regional Factors (Pty) Ltd v Charisma Promotions 1980 (4) SA 509 (C) Registrateur van Aandelebeurse v Aldum h/a Onecor Group 2002 (2) SA 767 (SCA)
Rens v Gutman NO [2002] 4 All SA 30 (C) Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A)
67 314
Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A) Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider Health & Fitness Centre [1996] 4 All SA 29 (C); 1997 (1) SA 646 (C) Rens v Coltman 1996 (1) SA 452 (A)
266, 267
132 226 102 156
89, 90, 202 Retail Management Services (Edms) Bpk v Schwartz 1992 (2) SA 22 (W) Rhodes Fruit Farms Ltd v Cape Town City Council 1968 (3) SA 514 (C) Ribeiro v Santam Ltd [1996] 2 All SA 47 (W); 1996 (3) SA 1035 (W) Richter v Estate Hammann 1976 (3) SA 226 (C) Richtersveld Community v Alexkor Ltd 2000 (1) SA 337 (LCC) Richtown Construction Co (Pty) Ltd v Witbank Town Council 1983 (2) SA 409 (T) Ridley v Marais 1939 AD 5 Rieseberg v Berry 1914 TPD 561 Rikhotso v Northcliff Ceramics (Pty) Ltd [1996] 4 All SA 524 (W); 1997 (1) SA 526 (W) Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719 Rizla International BV v L Suzman Distributors (Pty) Ltd [1996] 2 All SA 414 (C); 1996 (2) SA 527 (C) 276 RM Van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C) RMS Transport v Psicon Holdings (Pty) Ltd 1996 (2) SA 176 (T) Road Accident Fund v Hansa [2002] 1 All SA 143 (A); 2001 (4) SA 1204 (SCA)
80 322, 349 114 241 228 33 229 135 318 356
172, 316 6 249
Road Accident Fund v Mongalo; Nkabinde v Road Accident Fund [2003] 1 All SA 72 (SCA) Road Accident Fund v Mothupi [2000] 3 All SA 181 (A); 2000 (4) SA 38 (SCA) Road Accident Fund v Smith NO [1998] 4 All SA 429 (A); 1999 (1) SA 92 (SCA) Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A) Robin v Guarantee Life Assurance Co Ltd 1984 (4) SA 558 (A) Robinson v D Cooper Corp of SA (Pty) Ltd 1984 (3) SA 699 (A) Robinson v Hay 1930 AD 444 Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 Robson v Theron 1978 (1) SA 841 (A) Rocade Developments (Pty) Ltd v Van Vüren & Trathen (Pty) Ltd 1997 (3) SA 494 (W) Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk 1979 (4) SA 467 (T) Ronstan Investments (Pty) Ltd v Littlewood [2001] 3 All SA 127 (A); 2001 (3) SA 555 (SCA) Roos v Engineering Fabricators (Edms) Bpk 1974 (3) SA 545 (A) Rosen v Barclays National Bank Ltd 1984 (3) SA 974 (W) Rosen v Ekon [2000] 3 All SA 24 (W); 2001 (1) SA 199 (W) Rosenthal v Mastroguiseppe [2000] 4 All SA 295 (A) Rosseau v Viljoen 1970 (3) SA 413 (C) Rosseau NO v Cloete 1952 (3) SA 703 (C) Rossouw & Rossouw v Hodgson 1925 AD 97 Rother, Estate v Estate Sandig 1943 AD 47 Rousalis v Rousalis 1980 (3) SA 446 (C) Rouwkoop Caterers (Pty) Ltd v IGI Ltd 1977 (3) SA 941 (A)
249 166, 355 293 94, 95, 96 96 146, 148 307 23 210, 211, 272 35 133, 134, 136 227 163 94 166 173 344 353 5 329 211 149 202
Roux v Van Rensburg [1996] 3 All SA 499 (A); 1996 (4) SA 271 (SCA) 226
Rovic Noordkaap v Roux 1980 (4) SA 59 (O) Rowe v Rowe [1997] 3 All SA 503 (A); 1997 (4) SA 160 (SCA) RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk 1981 (2) SA 141 (O) Rudman v Road Accident Fund [2002] 4 All SA 422 (SCA); 2003 (2) SA 234 (SCA)
69 85, 213 227 129
Rumanal (Pty) Ltd v Hubner 1976 (1) SA 643 (E)
285
Ruskin v Thiergen 1962 (3) SA 737 (A) Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd 1975 (4) SA 626 (W)
270 275
Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A); 1997 (2) SA 337 (SCA)
91, 247
Ruto Flour Mills (Pty) Ltd v Moriates 1957 (3) SA 113 (T)
183
Pleadings/Amlers Precedents of Pleadings/Table of Cases/S S S v Makwanyane 1995 (3) SA 391 (CC) S v McPherson 1972 (2) SA 348 (E) S v Wells 1990 (1) SA 816 (A) SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) SA Associated Newspapers Ltd v Samuels 1980 (1) SA 24 (A) SA Bantoetrust v Ross & Jacobz 1977 (3) SA 184 (T) SA Board of Executors & Trust Co Ltd (in liq) v Gluckman 1967 (1) SA 534 (A) SA Breweries Ltd v Ribeiro t/a Doc’s Liquor Merchants [1999] 4 All SA 627 (W); 2000 (1) SA 803 (W) 265 SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3) SA 541 (D) 316, 333 SA Eagle Insurance Co Ltd v Pretorius [1998] 1 All SA 131 (A); 1998 (2) SA 656 (SCA) SA Eagle Insurance Co Ltd v Van der Merwe NO [1998] 2 All SA 527 (A); 1998 (2) SA 1091 (SCA) 251 SA Fish Oil Producers’ Association (Pty) Ltd v Shipwrights & Engineers Holdings Ltd 1958 (1) SA 687 (C) 256 SA Historical Mint (Pty) Ltd v Sutcliffe 1983 (2) SA 84 (C) SA Onderlinge Brand v Van den Berg 1976 (1) SA 602 (A) SA Transport Services v Wilson NO 1990 (3) SA 333 (W) SA Yster & Staal Industriële Korp Bpk v Koschade 1983 (4) SA 837 (T) SA Yster & Staal Industriële Korp Bpk v Van der Merwe 1984 (3) SA 706 (A) SACCA Ltd v Olivier 1954 (3) SA 136 (T) Sackstein & Venter NNO v Greyling 1990 (2) SA 323 (O)
45 326 213 133, 135 137 52 196
251
93 116 32 268 346 272 13
SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons [2003] 1 All SA 274 (SCA) Safari Reservations (Pty) Ltd v Zululand Safaris (Pty) Ltd 1966 (4) SA 165 (D) Safaris & Film Productions (Pty) Ltd 1977 (2) SA 416 (A) Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W) Sager v Bezuidenhout 1980 (3) SA 1005 (O) SAI Investments v Van der Schyff NO 1999 (3) SA 340 (N) Salisbury Municipality v Jooala 1911 AD 178
277, 343 132 219 105 311 29
267 Salusa (Pty) Ltd v Eagle International Traders 1979 (4) SA 697 (C) Salzwedel v Raath 1956 (2) SA 160 (E) Sampson v Union & Rhodesia Wholesale Ltd (in liq) 1929 AD 468 Sanders NO v Edwards NO [2003] 1 All SA 108 (C) Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd 1985 (1) SA 248 (W) 220 Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) Santam Insurance Co Ltd v Fourie [1997] 1 All SA 590 (A); 1997 (1) SA 611 (SCA) Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) Santam Insurance Ltd v Cave 1986 (2) SA 48 (A)
275 100 185 346
119, 120 237 107, 353