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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 52149/2015

DATE: 31/5/17

In the matter between

ADRIAAN WILLEM VAN ROOYEN                                                         FIRST EXCIPIENT

and

LOUISE MULLER                                                                              SECOND EXCIPIENT

In re:

GOVERNMENT EMPLOYEES                                                                            PLAINTIFF

and

ADRIAAN WILLEM VAN ROOYEN                                                     FIRST DEFENDANT

LOUISE MULLER                                                                           SECOND DEFENDANT

JUDGMENT

VILAKAZI, AJ:

1. The Defend ants have taken an exception to the plaintiff's particulars of claim on the ground that it discloses no cause of action.

2. In its particulars of claim the plaintiff seeks as its main relief an order for:

a.   Payment of the sum of R 200 000 (Two Hundred Thousand Rand) per month for every month or portion of the month during which African Spirit Trading 90 (Pty) Ltd (he reinafter referred to "ASP") in liquidation remains unlawfully in occupation of plaintiff's premises, calculated from 1 January 2015 and interest  thereon  at  the  rate  of 9% per annum a tempora morae from date of service of summons until date of final payment;

b.    Damages claim, these being described as the electricity and water that was consumed by "ASP" ;

c . That the claim for damages be postponed sine  die until  the plaintiff is in a position to  quantify its damages

3. In order to succeed , an excipient has the duty to persuade  the  court  that upon every interpretation  which  the  pleading  in  quest ion  can  reasonably bear, no cause of  action is  dis closed , failing  these; the  exception  ought  not to be upheld. Turning to the particulars of claim, the two claims were formulated  as  follows:

a.   In claim 1 the plaintiff alleges that it had cancelled a  second Lease agreement with "ASP" and despite cancellation, the defendants in their representative capacity as liquidators, so appointed by the Master of the High Court as provisional liquidators on 22 December 2014, elected  to  continue trading "ASP" from plaintiff' s premises from 1 January 2015. In support of this allegation, the plaintiff refers to  an  email dated 16   February 2015 by first d e fend ant, Adria an, addressed to various recipients which states as follows:

"Please note that there is not a danger of contribution at this stage, we are trading the company  in liquidation  at  this  stage and therefore did not vacate the premises."

Consequently as a  result of  this unlawful occupation, the plaintiff  is incurring damages which are equivalent to gross monthly rental which the plaintiff could have earned from the premise s, but for "ASP"s continued unlawful occupation of the plaintiff's premises. The fair and reasonable amount of rental that could have been collected by the plaintiff is estimated at R 200 000 per month .

4. Secondly, as a result of the continued  unlawful  occupation of the plaintiff's premise s by "ASP", during such period of occupation, it utilised electricity and water, and plaintiff  is thus liable  to  the  Local  Authority  to pay for these consumables . The plaintiff avers that these damages will be quantified when "ASP" has vacated or is evicted from the  premises .

FIRST GROUND OF EXCEPTION

5. The defendants contend  that  the  plaintiff  particulars  of  claim  does  not sustain a cause of  action in that its claim  for pure economic  loss is  on  the basis  that  the  liquidators  conduct  is  unlawful  in  that  they  are   allowed "ASP" to continue to  trade  and  occupy  the  premises ,  situated  at  shop  33/35   The Wedge,  Rivonia Road , Morningside , subsequent to  their appointment by the Master  of  the  High Court. This ground cannot  attract or trigger any  personal liability.

5.1       The Defendants aver that the particulars of claim fails to state the factual and legal basis on which they are seeking to hold the defendants personally liable,

5.2        It was contended on behalf of the defendants that the Master bestowed limited powers upon the defendants. The  defendants were appointed as liquidators with the powers as set out in section 386(1) (a) (b) (c) (d) (e) and 4 (f)  Companies  Act  71 of 1973.

SECOND GROUND OF EXCEPTIO N

6. The defendants contend that the plaintiff did not set out the  ground  on which it sought to hold the defendant  personally  liable.  The  defendants aver that the plaintiff did not show  the legal causation  on which it alleges that the defendants are personally liable for the loss it  suffered as a  result of non-payment of rental and utilities by " ASP" , subsequent to their appointment  as liquidators.

7. It was submitted on behalf of the plaintiff that a liquidator stands in  a fiduciary relationship to the company and to the body of members as a  whole and the body of creditors as a who le. For this submission,  Counsel of the plaintiff relies on Cronje NO and Others v Hillcrest Village (Pty) Ltd and another 2009 (6) SA 12 SCA.   Streicher ADP in Cronje No and    others supra referred to Concorde Leasing Corporation (Rhodesia) Ltd v Pringle­ Wood No and another 1975(4) SA 231 (R) where Beadle ACJ said it is clear from the authorities and a matter of  common - sense  that  the  liquidator owes a duty both to that company and  the creditors. "He owes a  duty  to the company  to see that its assets are realised and  its liabilities minimised to the best possible  advantage  of  the  company  and  he owes  a  duty  to the creditors to see that they suffer the least loss and receive the most advantageous   dividend."

8. The plaintiff submits that it interprets this email as an approval by the first defendant to allow "ASP" to trade and remain in the premises despite full knowledge that the  plaintiff has cancelled it concluded with "ASP". Plaintiff seeks to rely on this email as a source of liability by the defendants.

9. Rule 18(4) requires that each pleading in an action, as opposed to an affidavit in motion proceedings "shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim­

----- with sufficient particularity to enable the opposite  party to  reply thereto . The significance of the requirements of Rule 18(4) were emphasised in Trope V South African Reserve Bank 1992  (3) SA 208  (T) at 210 G-H"

"It is of course, a basic principle that particulars . of claim should be so phrased that a defendant may reasonably and fairly be required to plead thereto. This must be seen against the background of the further requirement  that the object of pleadings is to  enable each side to come to  trial prepared  to  meet  the  case  of  the  other  and  not  to  be  taken by surprise. Pleadings must therefore be lucid and logical and in an intelligible form; the cause of [neither] action nor defence must appear clearly from the factual allegations made"

10. It is apparent that the plaintiff's cause of action is based  on  delictual  liability. What averments should be pleaded by the plaintiff? A claim for patrimonial loss (including purely economic loss) suffered through a wrongful and negligent act of the defendant; the plaintiff  must allege and prove the act or omission on which the cause of action is based . It must further prove whether the defend acted intentionally  or negligently. It must also show whether there is a connection between the  wrongful  conduct of the defendant and the loss suffered. Further, the plaintiff  must also allege and prove facts from which wrongfulness can be inferred. Wrongfulness can manifest itself in different ways, for an example, a  common law right, a  statutory duty and  a  duty of   care.

11. It  is  important  to  consider  this  matter  post  liquidation.  The   Master appointed the defendants as joint liquidators on 22 December 2014. It is common cause  that  "ASP"  was  finally  liquidated  on  29  January  2015  by  an  order of Baqwa J at  the  instance of Frank K C up a , one  of its  creditors.

12. S37(1) Insolvency Act 24 of 1937 states as follows: A lease entered into by any person as lessee shall not be determined by the sequestration of his estate, but the trustee of his insolvent estate may determine the lease by notice in writing to the lessor: "Provided that the lessor may claim from the estate, compensation for any loss which he may have sustained by reason  of  the non-performance of  the terms of  such lease." S37(2) provides: "If the trustee does not within 3 months of his appointment notify the lessor that he desires to continue the lease on  behalf  of  the estate, he shall be deemed to have determined the lease at  the  end  of such 3 months"

S37(3) stipulates that the rent due under any such lease from the date  of the sequestration of the estate of the lessee to the determination or the cession   thereof   by   the   trustee   shall   be   included   in   the   cost   of  sequestration .

13. S339 Companies Act 61 of 1973 provides that in the winding up of a company unable to pay its debts, the provisions of the law relating to insolvency shall, in so far as they are applicable, be applied mutatis mutandis in respect of any matter not specially provided for by this Ac t.

14. The liquidators are afforded the protection in terms of s37(1) of the Insolvency Act which stipulate as follows "provided  that  the  lessor  may claim from the estate, compensation for any  loss which may he  sustained  by reason of the non-performance of the terms of such lease ." I am of the view that the liquidator is afforded the protection in terms of the s37(1).The claim of the plaintiff  lie against the estate of  "ASP"

15. My interpretation of the email by the second  defendant is an  expression  of the objective facts of " ASP" , the tenant company. It is my view that this written note is not a blessing by the first defendant that he approves "ASP" (in liquidation) to continue to trade  and remain  in  occupation of the premise s. I am  of the  view that you cannot read more from this email and it cannot  be  used as a  source  of  liability  against  the  defend ant.  I am of the view that the purpose of this email simply informs the recipients that there is no danger in contribution to the concursus creditorium. In simple terms it means that there might be some dividend that the concurrent creditors will get. I therefore hold that  this email is not  a  basis of  holding the liquidators personally liable .

16. Accordingly , I find that the plaintiff's particulars of claim do not disclose  any cause of action. In the premises the exception is up held .

17. In the circumstances the following order is made :

1.            The particulars of claim are struck out ;

2.            The plaintiff is granted leave to amend its particulars  of  claim within 20 days of date of delivery of this order;

3.             The plaintiff is ordered to pay  the cost of this

______________________

T.D. VILAKAZI

ACTING JUDGE OF THE GAUTENG

DIVISION OF THE HIGH COURT OF SOUTH AFRICA

DATED AND SIGNED AT PRETORIA ON 31 MAY 2017

FOR THE PLAINTIFF                                     : ADV W.W. GIBBS

INSTRUCTED BY                                          : WESSELS & VAN ZYL LE ROUX

FOR THE DEFENDANTS                              : ADV J A KLOPPER

INSTRUCTED BY                                          : SCHABORT & WALKER INC

DATE HEARD                                                 : 3 NOVEMBER 2016

DATE DELIVERED                                         : 31 MAY 2017

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