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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO: 567/22

Reportable:   NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between:

FREDRICK MARTIN McTODD                                   PLAINTIFF/RESPONDENT

 

And

 

CORNELIUS JOHANNES VAN DER WAT N.O         1^ST DEFENDANT/EXCIPIENT

 

GABRIEL JACOBUS GERHARDUS DU TOIT N.O   2ND DEFENDANT/EXCIPIENT

 

NADINE DU TOIT N.O                                                3RD DEFENDANT/EXCIPIENT

 

JUDGMENT

 

REDDY AJ

Introduction

[1] This is an opposed interlocutory application in terms of Rule 23(1) of the Uniform Rules of Court, wherein the excipients (defendants) have delivered an exception to the respondent's (plaintiffs) particulars of claim. For purposes of convenience, I propose to follow the nomenclature of the parties as cited in this application.

 

Background facts

[2]        The respondent is a major businessman, residing at 1[...] G[...] Street, Danville, Mafikeng. The first, second and third excipients are cited in their representative capacity as co-trustees of the Van der Wat Family Trust ("the VDWFT"). On 21 March 2019 the first excipient, orally in his representative capacity as trustee of the VDWFT approached the respondent who at that time leased from the VDWFT an immovable property geographically located at [...] D[...] M[...] Avenue, Mafikeng.

 

[3]        The leased property was in need of several renovations, improvements and alterations. The respondent was requested by the VDWFT to conduct the same. A building blue print in line with the required collective renovations would be provided to the respondent, further thereto, the respondent was to attend to the re-zoning of the building leased premises from residential to business. The VDWFT, would pay the costs of this renovation process on production by the respondent of the invoices. This oral agreement found favour with the plaintiff and he duly accepted it. This resulted in an oral contract coming into being.

 

[4]        In line with the oral agreement, a building plan specifying the renovations that was to be carried out was handed over to the respondent. The renovations proceeded as per the oral agreement. The VDWFT was fully aware of the renovations that were being conducted by the respondent. On several occasions, the first excipient physically inspected the progress of the agreed renovations. The plaintiff would also invite the first excipient to inspect the progress of the renovations. At no point was the respondent ordered to cease with the building renovations.

 

[5]        The plaintiff presented various invoices to the first excipient. The costs that the respondent incurred eventually totalled R1 039 636 93, which costs were for the payment by VDWFT. The VDWFT refused/neglected/failed to liquidate this amount. The VDWFT however informed the respondent that he could purchase the lease premises at a selling price of R5 000 000.00. A valuation of the said premises dated 15 April 2019, valued it at R3 050 00, 00.

 

[6]        As a result of VDWFT not making payment over for the building renovations the respondent withheld paying the agreed rental over to the VDWFT. The VDWFT reacted to the non-payment of the rental by unlawfully evicting the respondent. The VDWFT instituted a legal proceeding against the respondent and obtained judgment against him.

 

[7]        The effected building renovations have increased the value of described immovable property of the VDWFT. As a result of the renovations made to the described immovable property, the VDWFT was unjustly enriched in the amount of RI 039 636 93. In making the representations the VDWFT, through the first excipient, negligently, alternatively fraudulently represented to the respondent that the VDWFT had consented to the building renovations and that the respondent would be compensated for the services rendered.

 

[8]        In acting in the fashion described, the VDWFT, including the first excipient negligently alternatively, and fraudulently represented that a separate, independent agreement had come into existence which stood autonomous from the lease agreement.

 

[9]        Resultantly, the respondent suffered damages, alternatively, the VDWFT had been enriched in the amount of R1 039 636 93.

 

The defendant’s exception in terms of Rule 23(1) of the Uniform Rules of Court

[10]      The excipients (defendants), opine that the respondent particulars of claim do not disclose a cause of action based on the following complaints: For better flow and ease of reading, I propose to restate the causes for complaint.

 

1.1         In paragraph 5, read with paragraph 4, of the plaintiffs particulars of claim the plaintiff relies on an alleged "verbal agreement" in terms of which the plaintiff has effected certain "renovations, improvements and alterations" to the premises leased by the Van der Wat Family Trust ("the Trust") to the plaintiff.

 

1.2         In paragraph 6 of the particulars of claim, the plaintiff alleges that he had, pursuant to the "verbal agreement", incurred costs in the amount of R1 ,039,636.93 to effect such "renovations; improvements and alterations", which costs the Trust "refuses and/or neglects and/or fails" to pay to the plaintiff.

 

1.3         In subparagraph 7.1 of the particulars of claim, the plaintiff pleads that "at the time of the conclusion of the aforementioned verbal agreement, the Plaintiff was leasing the building from the Trust. A copy of the lease agreement is attached hereto as Annexure "P.O.C 3".

 

1.4         The written lease agreement, Annexure "P.O.C 3" to the particulars of claim, contains the following relevant provisions:

 

"10.3 The Lessee will not make any structural changes to the Leased

Premises during the subsistence of this agreement, without the Lessor's prior written consent thereto. If any alterations are done by the Lessee or any improvements made to the Leased Premises by the Lessee, and unless the Parties have agreed to the contrary in writing, all such improvements will be deemed to have become permanent fixtures and subject to the Lessor's ownership, save that the Lessor may elect to require from the Lessee to remove all or any part of such appurtenances at its cost at the expiration or prior cancellation of this agreement.

 

10.4 The Lessee shall under no circumstances have any claim for compensation for any alterations, improvements or additions made to the property, whether or not they are removed and the Leased Premises reinstated.

 

24.1 This Lease and Option Agreement constitutes the whole agreement between the Parties and no warranties or representations, whether express or implied, not stated herein shall be binding on the Parties.

 

24.3 No agreement at variance with the terms and conditions of this lease shall be binding on the Parties unless reduced to a written agreement signed by or on behalf of the Parties."

 

1.5         The plaintiffs purported claim referred to in subparagraph 1.2 above (i.e. the claim based on the alleged "verbal agreement") is in direct conflict with the express provisions of the written lease agreement referred to in subparagraph 1.4 above.

 

1.6         In the premises the plaintiffs purported claim based on the alleged "verbal agreement" is bad in law and lacks averments necessary to sustain a cause of action against the defendants, alternatively cannot sustain a cause of action.

 

2.1       In paragraph 10 of the particulars of claim, the plaintiff pleads that the Trust has been "unjustly enriched" at the expense of the plaintiff on account of the plaintiff having effected the "renovations; improvements and alterations" based on representations by the first defendant, acting on behalf of the Trust, which "induced the plaintiff into conducting the renovations; improvements and alterations" which have resulted in the plaintiff suffering damages in the amount of R1,039,636.93.

 

2.2       The plaintiffs purported claim based on "unjust enrichment" does not contain the necessary allegations to bring it into the realm of any of the recognised common law enrichment claims, nor, for that matter, a general enrichment action (the existence of which has not been accepted in South African law).

 

2.3       The plaintiffs purported claim based on "unjust enrichment" is, in any event, in direct conflict with the provisions of the written lease agreement referred to in subparagraph 1.4 above.

 

2.4       The plaintiffs purported claim referred to in subparagraph 2.1 above (i.e. the claim based on the alleged "unjust enrichment") lacks averments necessary to sustain a cause of action against the defendants, alternatively cannot sustain a cause of action.

 

3.1       In paragraph 11 of the particulars of claim, the plaintiff alleges that the Trust, represented by the first defendant, "negligently; alternatively, fraudulently represented to the plaintiff that "a separate and independent agreement (as set out in inter-alla paragraph 4 hereinabove) came into existence, which stood autonomous from the lease agreement", and as the Trust never had any intention of paying the plaintiff for expenses incurred in effecting the "renovations; improvements and alterations" the plaintiff had suffered damages in the amount of R1,039,636.93.

 

3.2       The plaintiffs claim referred to in subparagraph 3.1 above (i.e. the claim based on negligent, alternatively fraudulent misrepresentation) is in direct conflict with the express provisions of the written lease agreement referred to in subparagraph 1.4 above.

 

3.3       The plaintiffs claim referred to in subparagraph 3.1 above (i.e. the claim based on negligent, alternatively fraudulent misrepresentation) lacks averments necessary to sustain a cause of action against the defendants, alternatively cannot sustain a cause of action.

 

Excipients Submissions

[11]      The excipients (defendants) contend the suggested verbal agreement is in direct conflict with the express written lease agreement concluded by the parties. As such, the respondent's alleged claim is bad in law and lacks necessary averments to sustain a cause of action.

 

[12]      Regarding the professed claim based on unjust enrichment, the particulars of claim lacks the essential averments recognized by common law and is in direct conflict with the express provisions the written lease agreement concluded by the parties. Advocate Wessels for excipients opined that respondent's claim based on alleged negligent, alternatively fraudulent, representation is in direct conflict with the express provisions of the written lease agreement and accordingly lacks action against the defendants, alternatively cannot sustain a cause of action.

 

[13]      It was argued that on the facts the respondent was precluded by the parol evidence rule from relying on the alleged oral agreement. In enforcing this contention reliance was placed on National Board (Pretoria (Pty) Ltd and Another v Estate Swanepoel 1975(3) SA 16 where the following was stated

 

"The rule is well summarised by Wigmore, Evidence, 3rd ed vol 9 sec 2425 as follows:

 

The process of embodying the terms of a jural act in a single memorial may be termed the integration of the act i.e. its formulation from scattered parts into an integral documentary unity. The practical consequence of this is that its scattered in parts, in their inchoate shape, do not have any jural effect, they are replaced by a single embodiment of the act. In other words: When a jural act is embodied in a single memorial, all other utterances of the parties on their topic are legally immaterial for the purpose of determining what are the terms of their act."

 

[14]      This Court was further referred to De Villiers v Mackay NO [2008] ZASCA 16; 2008 (4) SA 161 (SCA) para [4] wherein the following was stated:

 

"This agreement contains all the conditions of the agreement between the parties and no amendment shall be valid unless it is in writing and signed by both parties hereto."

 

[15]      In line with these authorities, it was submitted that the oral agreement will have no force or effect as it was expressly precluded, unless reduced to writing and signed by both parties. In the absence of a further written agreement incorporating the terms of the further oral agreement, the respondent is circumvented by the parol evidence rule from relying on the oral agreement.

 

[16]      Moving to the alternative claim of unjust enrichment, Advocate Wessel's contended that as a general enrichment action was never founded in South African Law and an enrichment claim had to be founded on one (or more) of the condictiones recognized in our common law (See McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), First National Bank of SA Ltd v Perry NO [2001] 3 SA 331(A), Afrisure v Watson 2009(2) SA 127(SCA). The argument ran that the conditio indebiti did not find application as the payments were not made erroneously but were made pursuant to an oral agreement. The condictio sine causa did not find application, as on the cause of action, the payments made in respect of the alleged improvements on the property but not made sine causa as the plaintiff contends that the same were made in terms of an oral agreement. It was submitted, that the other condictiones (the condictio furtiva, the condictio ob causam finitam and the condictio ob turpem vel iniustam causam) which, on account of the facts pleaded, did not find application.

 

Respondent's Submissions

[17]      Advocate Smith submitted that the verbal construction agreement was an autonomous agreement not dependent on the lease agreement. Consequently, the parol rule of evidence did not find application. Further thereto the terms of the verbal construction did not impede with the written terms of the lease agreement, more so the verbal construction agreement does alter the lease agreement nor is it to be incorporated into the lease agreement.

 

[18]      Regarding the alternative cause of action, based on unjust enrichment, Advocate Smith's submission that there was a proper cause of action is surmised by referring to the JD and Sons (Pty) Limited v Multi Granes and Platforms (Pty) (A3049/2019) [2019] ZAGP JHC 522 (13 December 2019 and McCarthy Retail Ltd v Shortdistance CC 2001 ZASCA 14[2001] 3 All SA 236 (A) (16 March 2001)

 

The Law

[19] The general rule regarding pleadings is that pleadings must be drafted in a lucid, logical and intelligible manner. The cause of action or defence must appear clearly from the factual allegations made. (Harms, Civil Procedure in the Supreme Court at 263-264)

 

[20]      In respect of pleadings, Rule 18(4) of the Uniform Rules of Court provides:

 

"Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer, as the case may be with sufficient particularity to enable the opposite party to plead. "

 

[21]      In Beck's Theory and Principles of Pleadings in Civil Actions 5th Edition, it provides as follows:

 

"Pleadings should state facts and facts only. ...That is to say they should not contain statements of either law or the evidence required to establish the facts. Only material facts —and no others- need be alleged."

 

[22]      In Southernpoort Developments (Pty) Ltd v Transnet LTD 2003 (5) SA 655 (W) the court formulated the test on exceptions as follows:

 

"In order for an exception to succeed, the excipient must establish that the pleadings is excipiable on every interpretation that can be reasonable attached to it. A charitable test is used on exception especially in deciding whether a cause of action is established and the pleader is entitled to a benevolent interpretation. The Court should look at a pleading with a magnifying glass of too high power. The pleadings must be read as a whole, no paragraph can be read in isolation. "

 

[23]      In summary in Luke M Tembani and Others v President of the Republic of South Africa and Another (167/2021) [2022] ZASCA Ponnan JA,

 

"[14] Whilst exceptions provide a useful mechanism 'to weed out cases without legal merit' it is nonetheless to be dealt with sensibly. It is where the pleadings are so vague that it is impossible to determine the nature of the claim or where pleadings are so bad in law that their contents do not support a discernible cause and legally recognized cause of action, that an exception is competent. The burden rests on the excipient, who must establish that on every interpretation that can reasonably be attached to it, the pleading is expiciable. The test is whether on all possible readings of the facts no cause of action may be made out; it being for the excipient to satisfy the court that the conclusion of law for which the plaintiff contends cannot be supported on every interpretation that can be put on the facts."

 

Discussion

[24]      A dissection of the various causes for complaint regarding the nonexistence of a cause of action leads to inescapable conclusion that there are two primary complaints, the first being the existence of the written lease agreement and certain clauses within the body of the lease agreement, impede the varying of the lease agreement orally. The second being, the no cause of action has established regarding the claim of unjust enrichment.

 

[25]      I deal first with the complaint with the written lease agreement. Weighty reliance is placed on a number of clauses central to the lease agreement, I outline these:

 

"10.1 The Lessor will prior to the commencement of this lease, cause all structures in the garden on the Property such, as shade houses, to be removed, and to ensure that the Property is in a neat condition.'

 

10.2    Save for the foregoing, the Lessee will accept the Lease Premises in is current condition, and . ...the Lessor will not be required to effect upgrades thereon

 

10.3    The Lessee will not make any structural changes to the Leased Premises during the subsistence of this agreement, without the Lessors written consent thereto. If any alterations are done by the Lessee or any improvements made to the lease Premises by the Lessee, and unless the Parties have agreed to the Lessor's ownership, save that the Lessor may elect to require from the Lessee to remove all or any part of such appurtenances as its cost at the expiration or prior cancellation of this agreement.

 

10.4    The Lessee shall under no circumstances have any claim for compensation for any alterations, improvements or additions made to the Property, whether or not they are removed and the Leased Premises reinstated."

 

[26]      The reciting of these clauses intrinsic to the lease agreement does not serve the excipients. The cause of action is not based on the lease agreement. The facta probanda emphatically avers that the respondent contends that an oral agreement autonomous from the lease agreement came into being. The existence of the lease agreement does not by design render the respondent's particulars of claim excipiable. In Picbel Group Voorsong Fonds (In Liquidation) v Somerville and Related Matters 2013(5) SA 496 (SCA) it was held.

 

"As a general rule, courts are reluctant to decide upon exception questions concerning the interpretation of contracts. "

 

[27]      Clause 24.1 and 24.3 of the lease agreement reads:

 

24.1 This lease and option agreement constitutes the whole agreement between the Parties and no warranties or representations, whether express or implied, not stated herein shall be binding on the Parties

 

24.3 No agreement at variance with the terms and conditions of this lease shall be binding on the Parties unless reduced to a written agreement signed by or on behalf of the Parties.

 

[28]      Clause 24.3 is commonly recognized in our law as a non- variation clause. A non- variation clause is a contractual device which circumvents variation of self- imposed written agreement by verbal variation. The syntax of the particular lease agreement does speak to "no agreement at variance with the terms and condition of this lease shall be binding on the parties unless reduced to a written agreement signed by or on behalf of the parties. "

 

[29]      In SA Sentrale Ko-op Graanmaatskappy Bvk v Shifren 1964(4) SA 760 (A), the Appellant Division developed the Shifren principle. The Shifren principle evinces two key components. Rationally, the first component of the principle is that when there is consensus between parties to include a non-variation clause in the body of their contract, it should be given effect to. The second component speaks to a prevention of disputes and the cumbersome nature of proving an oral agreement in the absence of a non-variation clause. The Shifren principle is deep rooted in our law, however it may be deviated from under circumstances when public policy demands. This is an exercise for the determination of the trial court. It would be premature to find that there is no cause of action simply on the existence of a non-variation clause.

 

The parol evidence rule

 

[30]      Much ado has been made of the parol evidence rule. (Du Plessis v Nel 1952 (1) SA 513 (A) at 539, National Board, (Pretoria) (Pty) Ltd and Another V Estate Swanepoel 1975(3) SA16 (A), De Villiers v Mackay [2008] ZASCA 16; 2008 (4) SA 161 (SCA) at paragraph [4]). The plaintiff has pleaded that a separate autonomous oral agreement had been agreed upon. It would be premature to determine the applicability if any of the parol evidence at the exception stage.

 

[31]      In Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA) Marais JA stated as follows at paragraph [7] page 997:

 

"[7] It is trite law that an exception that a cause of action is not disclosed by a pleading cannot succeed unless it be shown that ex facie the allegations made by a plaintiff and any document upon which his or her cause of action may be based, the claim is (not may be) bad in law.'

 

[32]      In McKelvey v Cowan NO 1980 (4) SA 525 (Z) at 526 D-E

 

"It is first principle in dealing with matters of exceptions that, if evidence can be led which can disclose a cause of action, alleged in the pleadings, that particular pleading is not excipiable. A pleading is only excipibale on the basis that no possible evidence led on the pleading can disclose a cause of action."

 

Unjust enrichment

[33]      The requirements or elements of undue enrichment are stated as follows in The South African Law of Unjustified Enrichment, by Professor Jacques du Plessis, first edition, page 2

 

"first that the plaintiff was impoverished, secondly, that the defendant was enriched, thirdly, that the defendants were enriched at the plaintiff's expense and fourthly, that there is no legal ground or justification for the retention of enrichment"

 

[34]      In Govender v Standard Bank of South Africa Limited 1984(4) SA 392(AD) 400, the Appellant Division took a dim view to the formalistic approach of labelling the cause of enrichment actions:

 

"It may be an open question whether the action in this case falls to be decided according to the principles governing the condictio indebiti, in which event negligence of the plaintiff may preclude the condictio, or whether the claim is a condictio sine causa, in which event the negligence of the plaintiff may be irrelevant. A formalistic approach, should be avoided where possible. In some cases it is necessary to classify the cause of action. In others, where no issue turns on the classification of the cause of action, a plaintiff need not place a label upon his case. If he is able to show that the law entitles him to relief it is not necessary for him to commit himself in advance in his pleadings to one form of action to the exclusion of another. It may, however, in this case be of importance in the issue of negligence to bear in mind that the condictio indebiti and the condictio sine causa have different requisite, and to determine which the appropriate action is and consequently what are the appropriate requirements which plaintiff must establish in order to succeed."

 

[35]      It is an established doctrine in our jurisprudence that no man may enrich himself at the expense or detriment of another. (Legator McKenna Inc v Shea [2009] 2 All SA 45 (SCA). The particulars of claim establishes the needed elements to institute the claim for unjust enrichment.

 

[36]      In Frank v Premier Hangers CC 2008 (3) SA 594 (C), the following was stated in respect of pleadings which disclose no cause of action:

 

"[11] In order to succeed in its exception, the Plaintiff has the onus to persuade the court, that upon, every interpretation which the defendant's pleas and counterclaim can reasonably bear, no defence or cause of action is disclosed. Failing which, the exception ought not to be upheld."

 

[37]      I find there is no merit in the grounds of exception as raised by the excipients. There is no prejudice to the excipients.

 

Costs

 

There is no reason why the costs should not follow the result.

 

Order

 

[38]      The following order is made:

 

[i]         The exception is dismissed with costs.

[ii]        The excipients are ordered to pay the costs of the exception on a party and party basis, jointly and severally, the one paying the other to be absolved

 

 

ANDREW REDDY

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

Appearances:

Date of Hearing:	18 November 2022
Date of Judgment:	23 March 2023
Counsel for the Plaintiff:	Mr Wessels
Attorney for Plaintiff:	Alant, Gell Martin INC
	C/O VRTW INC
	9 Proctor Avenue
	Mahikeng
	Tell: 018 381 0804
Counsel for Defendant:	Adv D Smit
Attorney for Defendant:	Herman Scholtz Attorneys
	59 lanric Plots
	Shippard Street Extension
	Mahikeng
	Tel: 018 381 0258

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