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Chimidza v University of Botswana (CACLB03807) [2008] BWCA 12 (30 January 2008)

.RTF of original document

IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
HELD AT LOBATSE

                           Court of Appeal Civil Appeal No. CACLB-038-07
High Court Application No. CVHLB-000184-07


In the matter between:

DIANA CHIMIDZA                                                Appellant

And

UNIVERSITY OF BOTSWANA                                       Respondent

For the Appellant: Mr K Kgafela
For the Respondent: Advocate M Marumo with Ms Makgalemele


J U D G M E N T


CORAM:   Tebbutt J P
Grosskopf J A
Twum J A
                 

GROSSKOPF J A

1.      
The Court a quo upheld the Respondent’s first exception that the Appellant’s particulars of claim do not disclose a cause of action, alternatively are vague and embarrassing. The appeal is against the order of the Court a quo upholding that exception. The Court a quo did not consider the Respondent’s second ground of exception.

2.      
The Appellant’s claim is for interest a tempore morae. The particulars of claim set out that the Appellant’s late husband was employed by the Respondent until the date of his death. The deceased’s employment contract provided for a group life insurance covering the deceased as a staff member. The Appellant was nominated by the deceased as sole beneficiary to receive the death benefits (“death benefits”) payable in terms of the insurance policy upon his death.

3.      
The Appellant also claims payment of certain employment terminal benefits (“terminal benefits”) comprising of pension and other benefits, as well as interest on such terminal benefits, but the Appellant’s claim in this regard is not subject to the Respondent’s exception and is therefore of no further relevance in the appeal.

4.      
The Appellant’s particulars of claim further allege as follows:
“9.       The deceased died on the 30th January 2006 whilst employed by the Defendant, whereupon:

9.1     
the death benefits aforesaid became due and payable to the Plaintiff;

9.2     
the terminal benefits aforesaid became due and payable to the Plaintiff.

10.     
During the period of time between February and April 2006:

10.1    
Plaintiff verbally demanded from the Defendant, payment of the death benefits and terminal benefits aforesaid on the 25th February and 25th April 2006;

10.2    
The Plaintiff demanded the payments above through correspondence of her attorneys dated 28th April 2006.

11.     
On or about 28th March 2006, at Gaborone, the Defendant received payment of death benefits for and on behalf of the deceased and his estate amounting to P875 952-00 from the administrator of Defendant’s group life insurance being Metropolitan Botswana.

12.     
The Defendant was thus obliged to pay the said death benefits to Plaintiff on the 28th March 2006, or immediately thereafter, demand having been made as set out above, by which date the debt to Plaintiff was due and payable.

13.     
The Defendant paid the death benefits to Plaintiff on the 10th November 2006 by cheque dated 3rd November 2006 for the sum of P788 101-05, after deductions were made.

14.     
The Defendant is liable to Plaintiff for interest amounting to P51 275-17 calculated as follows:

14.1    
Interest on the sum of P875 952-00 at 10% per annum for the period of time between 28th March and 20th June 2006 amounting to P20 158-87;

14.2    
Interest on the sum of P788 101-05 at 10% per annum for the period of time between 20th June to 10th November 2006 amounting to P30 876-28.”

The Appellant’s claim is for payment of P51 275-17 in respect of interest.

5.      
The Respondent’s first exception has two legs, first if the claim for interest is founded on an alleged mora ex re, and second if it is founded on mora ex persona. It is now common cause that this is not a case of mora ex re where no demand is necessary to place the debtor in mora since performance is due on or before a certain date. It is indeed a case of mora ex persona where a demand (interpellatio) is necessary to put the debtor in mora. The legal position is summarised as follows in LAWSA, First Reissue, Vol 5 part 1, para 220:

“The general rule is that where the parties have not agreed upon a date for performance, performance is due immediately on conclusion of the contract or as soon thereafter as is reasonably possible in the circumstances. However, the debtor does not fall into mora ipso facto if he fails to perform immediately or within a reasonable time. Mora arises only if he fails to comply with a valid demand by the creditor. This form of mora is known as mora ex persona since it requires an act of a person (the creditor) to bring it into existence.

A demand is a notice calling upon the debtor to perform on or before a certain date.”

6.      
It was held in the case of West Rand Estates Ltd v New Zealand Insurance Co. Ltd 1926 A D 173 that if no date for performance had been fixed interest shall run from the time of mora. Kotze J A remarked as follows at 195:

“In connection with a claim for interest we have to consider the question of mora,..Liability for the payment of interest through delay in the performance of his obligation or duty by the defendant may arise in one of two ways. Interest may be due from the nature of the case, where, for instance, the time for performance is fixed either by agreement or the law (mora ex re); or where, in the absence of such agreement, the defendant has been called upon to perform his obligation (mora ex persona). In the former case no interpellation is necessary; in the latter the debtor must be formally called upon for performance. But we must bear in mind that a defendant cannot be said to be in mora unless he knows the nature of his duty or obligation; that is to say when and how much he has to pay.”

It has now been decided in the case of Nel v Cloete 1972(2) S A 150 (A) at 159 F-H that where no time for mora had been fixed the time of mora is the moment when the debtor has failed to comply with a demand requiring him to perform on or before a certain date which is reasonable in the circumstances. (See also Ver Elst v Sabena Belgian World Airlines 1983(3) S A 637 (A) at 644 C-H).

7.      
The Appellant alleges in paragraph 11 of her particulars of claim that the Respondent received payment of the death benefits “on or about 28th March 2006” from the life insurance company and then proceeds to allege in paragraph 12 that the Respondent was thus obliged to pay the said death benefits to the Appellant on 28 March 2006 or immediately thereafter. It is not her case, however, that immediate performance was contemplated by the parties and that no demand was therefore necessary to place the Respondent in mora. On the contrary, she relies on “demand having been made as set out above.” What is set out above in paragraph 10 of the particulars of claim is that the Appellant “verbally” demanded payment of the death benefits from the Respondent on 25 February and 25 April 2006 and in writing by her attorneys on 28 April 2006. It is clear therefore that the only demand which had been made by 28 March 2006 was the oral demand of 25 February 2006.

8.      
The particulars of claim do not disclose what exactly was demanded by the Appellant on 25 February 2006, and more particularly on what terms the Respondent was placed in mora. That demand could in any event never have been a proper demand whereby the Respondent was placed in mora. That is so because the demand of 25 February 2006 could not place the Respondent in mora in advance where the debt only became due and payable on 28 March 2006. A demand cannot be made in advance where a debt is not yet due. Christie, The Law of Contract in South Africa, 5th Ed., p. 497-498 says that a debtor is in mora in respect of a particular obligation when three elements are present, one being that the performance must be due.

9.      
28 March 2006 is the date upon which the death benefits allegedly became due and payable in terms of paragraphs 12. The Appellant claims interest in paragraph 14.1 from 28 March 2006, which is therefore also the alleged date of mora. That is of course not the proper date of mora. There is, however, no allegation of a demand made on or after 28 March 2006 which called upon the Respondent to perform on or before a certain future date, which would have been the proper mora date.

10.     
It could possibly be argued on behalf of the Appellant that the allegations in paragraph 12 of the particulars of claim are couched in language wide enough to submit that demand was made on 25 and 28 April 2006 “by which date the debt to plaintiff was due and payable”. Such an argument cannot however succeed because the Appellant claims interest in paragraph 14.1 from 28 March 2006, which means that the alleged date of mora is prior to the date of the demand.

11.     
It is in any event not the Appellant’s case on the pleadings that the death benefits became due and payable on 30 January 2006 when the deceased died and that the Respondent was thereafter placed in mora. There is no allegation of any demand by the Appellant in this regard.

12.     
I am of the view in the light of the aforegoing that the Court a quo correctly upheld the Respondent’s first exception that the Appellant’s claim does not disclose a cause of action. The appeal should accordingly be dismissed with costs. The Appellant should however be afforded the opportunity to amend her particulars of claim if she should so wish and I therefore propose to amend the order of the Court a quo as set out below:

13.     
The following order is made:
        
1.      
The appeal is dismissed with costs.

2.      
The order of the Court a quo is amended to read as follows:

         “1.       The Defendant’s first exception to the Plaintiff’s
                  claim for interest is upheld with costs.

         2.       The particulars of claim are set aside and the
         Plaintiff is granted leave to amend her particulars of claim, if so advised, within three (3) weeks from 30 January 2008.”
        
DELIVERED IN OPEN COURT AT LOBATSE THIS 30TH DAY OF JANUARY 2008.


                                    -------------------
                                    F H Grosskopf
                                    Judge of Appeal


I agree                             -------------------
                                    P H TEBBUTT
                                    Judge President


I agree                             -------------------
                                    S Twum
                                    Judge of Appeal

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