CIVIL PROCEDURE – EXCEPTIONS – AGREEMENT FORBIDDEN BY STATUTE; ENRICHMENT – ENRICHMENT MUST BE EXTENSIVELY PLEADED AND PROVED

CIVIL PROCEDURE – EXCEPTIONS – AGREEMENT FORBIDDEN BY STATUTE; ENRICHMENT – ENRICHMENT MUST BE EXTENSIVELY PLEADED AND PROVED

This matter arose from a partly written, partly oral contract entered into between the 1^st defendant and the plaintiff for the supply and sale of fuel to the 1^st defendant. The 2^nd to 4^th defendants bound themselves as sureties and co-principal debtors to the plaintiff for the debts of the 1^st defendant. This was between a number of agreements entered into between the parties between 5 October 2015 to 1 November 2018, all of which were for the sale and supply of fuel to the 1^st defendant with other 3 defendants signing as sureties and co-principal debtors at various times.

The defendants raised exceptions against the amended particulars of claim by the plaintiff premised on the jurisdictional fact that the amended particulars of claim do not contain the necessary averments to sustain a cause of action and/or fail to disclose a cause of action against the defendants. At the hearing, the defendants argued that, firstly, for a contract to be enforceable, it needs to be legal and if the contract is found to be null and void, then there can be no enrichment claim. If the court finds that the contract between these parties is enforceable, then such enforcement will cause the parties to commit a crime as it is a crime to buy fuel on credit.

Secondly, that for the enrichment claim to be successful, the party claiming must allege that the party who received for example, the fuel, was enriched and the party who gave or delivered the fuel without receiving payment, was deprived.  The party who was deprived, must further prove exactly what it was deprived of and cannot claim the total outstanding amount because it can for instance, not claim the levies payable automatically, unless if such levies were paid over.

RAKOW J considered the general principles regarding exceptions and held that:

1. The question was therefore whether, the subordinate legislation was applicable in the matter or whether it needed to be proved as alleged by the plaintiff. When looking at the specific action that is condemned by the legislation, it is important to determine the intention of the legislator with the specific clause and to interpret it within the said ambit. In this instance, the court found that to enforce a contract like the one before it would be to allow conduct which the Minister specifically saw fit to render as a criminal offence and as such the contract is illegal, and therefore grounds 1, 2 and 3 of the exception must succeed.
2. Unenforceable agreements can form the basis of enrichment claims, but, in order for the court to determine whether it indeed supports an enrichment claim, it must be decided on a case by case basis, applying the general principles. It is however necessary to allege the exact terms of the enrichment. Ground 4 is therefore dismissed but ground 5 is successful in so far as the specific detail of the enrichment must be alleged

Shared Advertising CC v In Touch Cargo Nam (Pty) Ltd NAHCMD 9 September 2022