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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION GRAHAMSTOWN)

CASE NO: EL 257/14

ECD 557/14

Date Heard: 01/11/2017

Date Delivered: 21/11/2017

In the matter between:

BUFFALO CITY METROPOLITAN MUNICIPALITY                                         APPLICANT

and

METGOVIS (PTY) LIMITED                                                                          RESPONDENT

 

JUDGMENT: LEAVE TO APPEAL

 

SMITH J

[1]  The applicant (the defendant in the main matter) seeks leave to appeal against my judgement which was delivered on 15 August 2017.

[2]  The applicant asserts that there are reasonable prospects that another court would find that I have erred in finding that the respondent (the plaintiff in the court a quo) established, on a balance of probabilities, that the parties concluded a tacit agreement, and in dismissing its special plea to the effect that the respondent's alternative claim based on unjust enrichment had become prescribed.

[3]  While the applicant relies on a multiplicity of grounds for Its contention that my finding regarding the existence of a tacit agreement is assailable, they all essentially boil down to the assertion that the applicant could not legally conclude a tacit agreement and that the respondent had in any event failed to establish a factual basis for such a finding.

[4]  Although I am, for the reasons set out in my judgement, of the view that there are no reasonable prospects that another court would find differently regarding the existence of a tacit agreement, I have made it clear in my judgement that even if it we wrong in that regard; the respondent would in any event have been entitled to damages in respect of unjust enrichment.

[5]  The applicant understandably does not challenge the substance of my findings on the merits of the respondent's claim based on unjust enrichment since all the elements of that cause of action were common cause.

[6]  I am, however, of the view that there are no reasonable prospects of another court finding that the claim based on unjust enrichment had become prescribed. As I have mentioned in my judgement, the applicant amended its pleadings to aver nullity on the basis of Illegality a day before the trial. At that point in time there had not been any judicial pronouncement on the issue neither had there been any indication that the applicant would raise such a defence. The factual basis for a defence based on illegality would by its very nature be within the peculiar knowledge of the organ of state that seeks to rely on such a technical defence. The respondent would consequently only have acquired knowledge of the relevant facts on the 20 June 2017. The fact that the respondent had on 1 June 2017 - apparently anticipating that the issue of legality may be raised - amended its replication to Include a claim based on unjust enrichment Is neither here nor there. What Is important is the date on which it can reasonably be deemed to have acquired knowledge of all the facts that it required to plead a cause of action based on unjust enrichment.

[7]  In the result I am not satisfied that an appeal would have reasonable prospects of success, and the application for leave to appeal is accordingly dismissed with costs.

 

 

________________

J E SMITH

JUDGE OF THE HIGH COURT

 

 

Counsel for the Plaintiff: Advocate E. Van As

Attorneys for the Plaintiff: Don Maree Attorneys

19 Tecoma Street

Berea

East London

Counsel for the Plaintiff: Advocate S.J. Swaartbooi

Attorneys for the Plaintiff: Makhanya Attorneys

2nd Floor, Werners Building

Argyle Street

East London

 

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