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