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30
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISIÓNT
In the matter between:
DANTEX INVESTMENT HOLDINGS (PTY) LTD Appellant
and
A BRENNER, D J RENNIE and M I SCHWARTZ
in their capacity as
joint provisional
liquidators of NATIONAL EXPLOSIVES
(PTY)
LTD (IN LIQUIDATION) Respondents
CORAM: RABIE, ACJ, HOEXTER, BOTHA, VAN HEERDEN, GROSSKOPF, JJA
HEARD: 5 September 1988
DELIVERED: 29 September 1988
JUDGMENT GROSSKOPF. JA
This is an appeal, with leave granted by the court a quo, against a judgment of the Witwatersrand Local Division (GOLDBLATT AJ) upholding an exception-to the appellant's particulars of claim, as amplified by further particulars.
2
For convenience I shall refer to the partíes as the
plaintiff
and the defendants. The plaintiff is a company having
its
registered office in Johannesburg. The defendants are.the
joint
provisional liquidators of National Explosives
(Proprietary) Limited ("Natex"). It is not clear what the
nature of the
plaintiff's business is - it refused to reply
to a request for further
particulars on this point - but it
does appear from further particulars
furnished in respect
of damages allegedly suffered by the plaintiff that there
is some business
relationship between the plaintiff and Natex
in the manufacture of explosives.
The substantive allegations in the particulars of
claim read as follows:
"3. At all material times since the 1 August 1986 the plaintiff has, by reason of a written agreement of lease entered into with certain Rand Leases Vogelstruisfontein Gold Mining Company Limited, been entitled to occupy the Farm Vogelstruisfontein No 231 I.Q., situated in the district of Roodepoort (hereinafter referred to as "the said premises").
3
4. At all material times since thë said date the Defendant has been in wrongful occupation of the said premises and despite demand has refused to vacate same.
5. Arising out of such wrongful occupation, the Plaintiff has to date hereof suf-fered damages in a sum of Rl 140 000 and will continue to suffer damages
at the rate of R360 000 a month until the Defendant vacates the said premises." To these rather terse statements there was added
a
paragraph 6, reading: "The Defendant disputes the Plaintiff's
said claims."
Since no "claims" in the strict sense of the
word are mentioned in the
preceding paragraphs of the pleading,
it is difficult to understand the exact
import of this paragraph.
If the word "claims" was intended to mean no more than
allegations or
averments, paragraph 6 would seem to indicate
that all the substantive averments in the pleading were in
dispute between the parties.
On the strength of the above averments the plaintiff
claimed damages in the amounts set out in paragraph 5, with
alternative relief and costs. The defendants filed a request
for further particulars, in which they asked, inter alia:
4
"On what grounds is it alleged that the defendant's occupation is wrong-ful?"
To this the plaintiff replied as follows:
"(a) (i) The Defendants have no right to occupy the said premises. (ii) The said premises now being occupied by the Defendants in their capacities as liquidators of National Explosives (Pty) Limited (Natex) have, to the knowledge of the Defendants, been leased to the Plaintiff, and Plaintiff was in terms of the said lease to take occupation of the said premises on 1st August, 1986."
The next step in the proceedings was the filing by
the defendants of a notice in terms of rule 23 of
the uniform
rules of court. This notice reads as follows:
"TAKE NOTICE that the defendants intend to except to the particulars of plaintiff's claim on the grounds that same are vague and embarrassing unless the following cause of complaint is removed within fourteen days:
It is not clear whether the plaintiff alleges that it occupied the said premises at any time prior to 1 August 1986. The plaintiff is requested to clarify whether it enjoyed such occupation and, if so, the dates thereof."
5
The plaintiff did not react to this notice. Thereafter
the defendants filed the following exception:
"The defendants hereby except to the parti-culars of plaintiff's claim on the ground that they lack averments which are necessary to sustain an action, alternatively the said particulars are vague and embarrassing. The grounds of exception are:
1. Á non-owner and non-occupier of land
has no right to claim
damages from
a person in occupation.
2. No conduct on the part of the defendants has been alleged which gives rise to any cause of action for damages by the plaintiff. 3. It is not clear whether the plaintiff ever had occupation of the said premises.
WHEREFORE the defendants pray that the excep-tion be upheld and that the plaintiff's claims be dismissed with costs."
As already stated, the exception was upheld with costs
- hence the present
appeal.
For the purposes of the present case it must be accepted
that the plaintiff never was in possession or occupation of
the leased premises. Paragraph 1 of the exception was clearly
intended to raise the question whether a lessee, who has not
6 received
occupation, is entitled to claim damages under the lex Aquilia for the
unauthorized occupation of the leased premises by a third person, i.e., whether
in such a case the third person's conduct
is unlawful, in the delictual sense,
against the lessee. The decision in Smit v. Saipem 1974 (4) SA 918 (A)
suggests that according to Roman-Dutch law this question is to be answered in
the negative, although that by
itself might not necessarily preclude an
appropriate extension of the Aquilian remedy. See, for instance, Minister van
Polisie v. Ewels 1975 (3) SA 590 (A); Administrateur, Natal v. Trust Bank
van Afrika Bpk 1979 (3) SA 824 (A); and Lillicrap, Wassenaar and Partners
v. Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A). However, in
argument before us Mr. Slomowitz, who appeared for the plaintiff, did not
contend that a lessee
who is not in occupation of the leased premises has a
sufficient interest in the property to entitle him to invoke the Aquilian action
in respect of damage to his limited interest in the land in the same way in
which, for instance, the owner or bona
7 fide possessor might
take action to protect their more extensive interests. Of course, even if the
plaintiff had had a sufficient interest
to invoke the action, it would in
addition have had to allege fault, in the form of dolus or culpa,
on the part of the defendants as a necessary element of its action for damages.
As I shall show later the particulars of claim contain
no such allegation. It
suffices to say on this part of the case, therefore, that the plaintiff did not
contend that the Aquilian
remedy has been or should be extended in this
direction, and in any event, that fault on the part of the defendants has not
been
alleged.
The cause of action relied upon by Mr. Slomowitz was a wider
one. The plaintiff had sufficiently alleged, he said, that the defendants
had
deliberately interfered with its contractual rights under the lease with intent
to injure it, and he contended that this interference
constituted an actionable
delict. It is clear that an interference with contractual rights can in certain
circumstances constitute
8
a delict. What is less clear is what precisely the requirements
for
liability are. Compare, for instance, the discussions
in N.J. van der Merwe
and P.J.J. Olivier, Die Onregmatige Daad
in die Suid-Afrikaanse Reg, 5th ed.,
pp. 369 to 381; Mc Kerron,
The Law of Delict, 7th ed., pp. 268-9; and Lee and
Honoré,
The South Áfrican Law of Obligations, 2nd ed., pp.
306-7.
In the present case Mr. Slomowitz accepted that this cause
of
action required fault in the form of dolus on the part
of the
defendants. Moreover both parties were ad idem that,
if such dolus has been pleaded, the pleading would disclose
a cause
of action in delict. For the purposes of this case
I assume, without deciding, that the parties' attitude is correct.
I would, however, emphasize that the question whether culpa
might not constitute a sufficient element of fault to ground
liability for damages for an unlawful interference with
contractual relations was not raised or debated in argument.
Since there was in any event no allegation of culpa in the pleadings I need say no more about this possibility.
9
The question then is whether the plaintiff hás sufficiently
alleged that the defendants acted dolo or intentionally. Had there been
an express allegation to this effect, that would of course have been all that
was required. It is
common cause, however, that no such averment appears
expressly or by implication in the particulars of claim, nor does it appear
expressly in the further particulars. The plaintiff's argument is that an
averment of dolus on the part of the defendants may be inferred from the
further particulars quoted above. In these particulars, it is contended, all
the
elements of dolus, as this concept is understood in the law of delict,
are alleged. Reliance is placed particularly on the following allegations, viz.,
that the defendants had no right to occupy the premises and that the defendants
knew that the premises were leased to the plaintiff.
These averments do not, howeyer, embrace all that is meant by dolus. In Geary & Son (Pty) Ltd v. Gove 1964 (1) SA 434 (A) at p. 441 D STEYN CJ pointed out that a plaintiff,
10
who bases his claim for patrimonial loss on an intentional wrongful act
on the part of the defendant, must allege and prove, inter alia, that the
defendant intended to cause the plaintiff loss. In the present case there is no
such allegation - all that is alleged is
that the defendants acted with
knowledge of the plaintiff's rights, and that the plaintiff in fact suffered
loss. The pleadings are
therefore not inconsistent with a belief on the part of
the defendants that the plaintiff would not suffer damage by being kept out
of
the leased property. A state of facts in which such a belief could arise can
easily be imagined - the defendants might believe
that the plaintiff required
the premises only for future expansion, or that the plaintiff has, since
entering into the lease, acquired
other more suitable premises and would prefer
not to take occupation under the lease.
Moreover, it is now accepted that dolus encompasses not ónly the intention to achieve a particular result, but also the consciousness that such a result would be wrongful
11
or unlawful. See Nydoo en Andere v. Vengtas 1965 (1) SA 1 (A) at p. 15 A; Suid-Afrikaanse Uitsaaikorporasie v. O'Malley
1977 (3) SA 394 (A) at pp. 403 C-D, 405 G-H; Matlou v. Makhubedu 1978 (1) SA 946 (A) at p. 962 A; Ramsay v. Minister van Polisie en Andere 1981 (4) SA 802 (A) at pp. 807 C, 818 F-G; Pakendorf en Andere v. De Flamingh 1982 (3) SA 146 (A) at p. 157 E and,
in the criminal law, S v. de Blom 1977
(3) SA 513 (A). In Ramsay's case, supra, the majority of this
court (per BOTHA JA) doubted whether animus injuriandi, including
consciousness of wrongfulness, was a necessary element in all forms of
inluria (see at pp. 818 F - 819 C). In the present case we are, of
course, not concerned with an injuria but with a claim under the extended
lex Aquilia in which the plaintiff relies upon fault in the form of
dolus. The policy considerations which might affect the elements of
various types of injuria consequently do not arise in the present case,
and I do not read the judgment of BOTHA JA as casting doubt on the proposition
that
dolus or animus injuriandi in principle requires
12
consciousness of unlawfulness. And even if there may be policy considerations in
certain cases falling under the extended lex Aquilia why a plaintiff, who
relies on fault in the form of dolus, should not be required to prove
consciousness of unlawfulness, the present is, in my view, not such a case. In
the type of interference
with contractual rights with which we are here
concerned there would appear to be no reason why dolus should not
comprise all its normal elements. It follows, therefore, that the plaintiff
should have alleged consciousness of unlawfulness
on the part of the defendants,
and the question is whether it has done so.
In the further particulars in the present case it is alleged, as an objective
reality, that the defendants have no right to occupy
the leased premises. The
plaintiff does not, however, allege that the defendants are aware that their
conduct is unlawful. Indeed,
the pleadings are entirely consistent with the
existence of an honest dispute about the defendants' right to occupy the
premises.
Some force is lent
13 to this possibility by the wording of
paragraph 6 of the particulars of claim, which I have quoted above, and which,
it will be
recalled, records that the defendants dispute the plaintiff's claims.
If the defendants believe bona fide that they are entitled to occupy the
premises, their conduct would not be tainted with dolus towards the
plaintiff.
It appears from the foregoing that the plaintiff has neither
alleged intent or dolus in express terms, nor has it sufficiently alleged
the elements which go to make up this concept. Since it is common cause that an
allegation of dolus is essential to the plaintiff's cause of action, it
follows, in my view, that the exception was correctly upheld.
The appeal is
dismissed with costs, including the costs of two counsel. The period allowed by
the court a quo for the amendment of the plaintiff's particulars of claim
is extended to one month from date hereof.
GROSSKOPF, JA RABIE, ACJ
HOEXTER, JA Concur BOTHA, JA
VAN HEERDEN, JA
SAFLII:
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