Amalgamated Society of Woodworkers of SA and Another v Die 1963 Ambagsaalvereniging

• Jurisdiction: South Africa
• Judge: Moll AJ
• Judgment Date: 29 August 1967
• Court: Transvaal Provincial Division
• Hearing Date: 29 August 1967
• Citation: 1968 (1) SA 283 (T)

C Moll, A.J.:

In this matter DE VOS, J., in a written judgment dated 8th December, 1966, [*] entered judgment for the second plaintiff, The Pretoria Trades Hall Committee, in the sum of R16,218. At the same time he dismissed the claims of the first plaintiff, The Amalgamated Society of Woodworkers of South Africa. After making certain orders in regard to costs the learned Judge then made the following order:

'Second plaintiff is given leave to have its claim for interest set down D for argument on a date to be arranged with the Registrar, subject to due notice being given to defendant within seven days of judgment.'

This notice was duly given by the second plaintiff to defendant and the matter comes before me to-day solely on the question as to whether the second plaintiff is entitled to interest on the aforesaid sum of R16,218, and, if so, from what date.

E Mr. Junod appears on behalf of the second plaintiff, but there is no appearance on behalf of the defendant. It is in these circumstances that I have to decide the present matter.

The learned Judge ordered the return of R16,218 as a result of a finding, in the first instance, that the second plaintiff had acted F ultra vires its own constitution when it donated the said sum to defendant. He next considered whether in the circumstances an action based upon unjust enrichment would be available to the second plaintiff having regard to the fact that second plaintiff had transferred ownership of the money it sought to recover by way of a void donation.

G By analogy of the right in our law of a minor, who acts without the assistance or consent of his guardian, to recover from the payee what he has paid, the learned Judge held that the second plaintiff having, as a corporate body, acted ultra vires its constitution, could similarly recover in this case by resorting to a condiction indebiti based on unjust enrichment; theirs having been a mistake of law.

H There was on the finding of the learned Judge no question of the defendant being mala fide in receiving the money from second plaintiff.

On the question of interest the learned Judge said at page 23 of his judgment as follows: [**]

'By an amendment to the pleadings a claim for interest at 6 per cent from 1st October, 1963, alternatively a tempore morae, has been advanced. This claim was neither pressed nor indeed mentioned in argument. I have some doubt whether it is well founded. There is no proof before me that the money has in fact been

Moll AJ

invested to bear any interest at all for the period during which it remained in possession of defendant. Actual enrichment has. therefore, not been proved. On the basis of enrichment it therefore seems that this claim cannot be sustained (vide De Vos, supra, p. 181). If considered on the basis of mora there may also be difficulties in the way (see De Vos, supra, p. 120). I prefer, however, not to decide this point without proper argument, which may be presented if so desired. Subject to that there will be no order on this claim.'

A In regard to the first passage in de Vos, referred to by the learned Judge, Mr. Junod has submitted that, even in the absence of proof of actual enrichment, a plaintiff would be entitled to succeed in claiming interest from a defendant, as from the date of payment to defendant, if plaintiff were able to show that defendant received the money with the B knowledge that it was not due or that it had been paid without proper authority. In this regard I have been referred to certain authorities but it becomes unnecessary for me to decide this particular issue in view of the fact that Mr. Junod concedes that he is, on the papers as they stand, unable to point to evidence which would show that the defendant had the requisite knowledge at the date when the said C moneys were paid over to it. DE Vos, J.'s findings in this regard would also not assist the second plaintiff.

Mr. Junod has, however, contended that in the circumstances of the present case he is entitled to claim interest as from the date of demand. As to what that date is in the present circumstances will be D referred to at a later stage. The question which arises, firstly, is whether the...