KT t/a Nel v Commissioner for South African Revenue Services
| Jurisdiction | South Africa |
| Judge | Fabricius J |
| Judgment Date | 06 March 2013 |
| Citation | 2013 JDR 0546 (Tax) |
| Docket Number | 1681/08 |
| Court | Tax Court |
Fabricius J
1.
Plaintiff's managing owner, Mr. Thomson, was "done-in", as First Defendant's senior counsel put it to him during cross examination. He seeks justice in these proceedings but, in a constitutional state governed by the Rule of Law, justice can only be achieved if a judge applies the law. In order to achieve his aim he relied in the main claim on the condictio indebiti against the First Defendant, and at the commencement of the trial withdrew the claim against Second Defendant. The condictio indebiti, is an equitable remedy, which, subject to certain conditions, seeks to ensure that no one is unjustifiably enriched at the expense of another. It must however always be remembered be it in this context, or in any other, that a court must do justice not only to a Plaintiff, but also to a Defendant. As will be shown, First Defendant was not paid twice by Plaintiff, and was also not enriched at Plaintiff's expense.
2.
In Norlje en 'n Ander v Pool NO 1966 (3) SA 96 (A), the majority of the court held that there was no general enrichment action in our law, but that such an action could develop in future. I only intend to deal with this particular topic very briefly, because whether or not the time is now right for the recognition of such an action was not fully argued before me. A wise court does in my view not easily deviate from well established principles or authorities, in the absence of thorough argument, and of course if it is necessary to decide the issues before it I have however read the views of JE Sholtens in this particular context in a number of South African law journals, but more particularly in 1966 SALJ 393 to 402 which, according to Eiselen and
2013 JDR 0546 p3
Fabricius J
Pienaar, in Unjustified Enrichment a Case Book, 2nd edition, Butterworth Publishers at 22, convincingly proves that a general enrichment action had in fact developed in the Roman-Dutch Law of the 18th century. D Visser in Unjustified Enrichment, Juta and Company, 2008 at 12 writes that recognising a general enrichment action is clearly a big move. I agree with that view. Apart from Sholtens, Feenstra referred to by Visser at 35 footnote 167 also showed convincingly that a general enrichment claim existed in 18th century practice in Roman-Dutch law. It is in this context somewhat ironic that refer JA in Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A) reminded us that the Roman-Dutch Law is "virile living system of law, ever seeking, as every such system must, to adapt itself consistently with its inherent basic principles to deal effectively with the increasing complexities of modem organised society." The condictio indebiti, as I have said, has since Roman times always been regarded as a remedy ex aequo et bono to prevent one person being unjustifiable enriched at the expense of another. In that decision the distinction between a payment made in error of law and error of fact was held to be illogical and of no further application in our law. An indebitum paid as a result of a mistake of law could therefore be recovered, provided that the mistake was found to be excusable in the circumstances of the particular case.
3.
As I have said the majority judgment in the Nortje v Pool supra ought to be revisited in the light of all the authorities that convincingly argue in favour of the adoption of the general enrichment action. It is unfortunate that I cannot
2013 JDR 0546 p4
Fabricius J
do so in these proceedings for the reasons that I have mentioned, but in any event, it would best be the function of the Supreme Court of Appeal itself.
4.
Plaintiff's alternative claim was formulated on the basis that the First Defendant owed Plaintiff a duty of care, relevant to the manner in which it dealt with the first cheque that had been delivered by Plaintiff to its offices. Elements of negligence and wrongfulness had been pleaded within the ambit of what was held to be required in the decision of McCarthy Limited/ Budget Rent- a –Car v Sunset Beach Trading 300 CC T/A Harvey World Travels and Another 2012 (6) SA 551 (GNP).
5.
Plaintiff's first claim based on the condictio was formulated as fellows in the particulars of claim, and the factual allegations contained therein were essentially not disputed in these proceedings:
On or about 5th April 2007 Plaintiff delivered cheque number 015981 drawn on Plaintiff's Bankers, being the East London branch of First National Bank Limited (hereinafter referred to as "the cheque") to First Defendant's East London branch office.
The cheque was drawn in favour of First Defendant, was post dated to 25 April 2007, was crossed and marked "not transferable" and was made payable in an amount of R432 375.34.
A copy of the cheque is attached hereto marked Annexure "A".
2013 JDR 0546 p5
Fabricius J
The cheque was hand delivered on behalf of Plaintiff and was signed for in Plaintiff's delivery record by a receptionist acting in the course and scope of his or her employment by First Defendant, one NOX, whose full and further particulars are to Plaintiff unknown.
The cheque was issued in favour of First Defendant in the discharge of Plaintiff's liability for the payment of VAT arising from Plaintiff's trade activity during February and March 2007.
Delivery of the cheque in the aforementioned circumstances constituted payment by the Plaintiff to the First Defendant thereby discharging the Plaintiff's obligations to the First Defendant in respect of VAT for the period February/ March 2007.
On or about 18 May 2007 and in the erroneous but bona fide and reasonable belief that it was obligated to do so, plaintiff provided the First Defendant with a replacement cheque, made out in favour of the First Defendant in the amount of R432 375. 34. which cheque was presented for payment by an authorised employee of First Defendant in due course and the amount of R432375.34 debited from Plaintiff's Bank account.
The aforesaid second payment constituted a duplication of the first payment for which the Plaintiff was not liable in law.
The plaintiff has accordingly been impoverished in the aforesaid amount of R432 375.34 and the First Defendant has been unjustly enriched in the aforesaid sum.
The First Defendant is accordingly liable in the premises to pay to the Plaintiff the aforesaid sum of R432 375.34."
2013 JDR 0546 p6
Fabricius J
As far as the alternative claim was concerned Mr. Ford SC, on behalf of Plaintiff said in argument that this claim only arose in the event that it being held that the first cheque was indeed delivered to the offices of First Defendant, but not in circumstances establishing that the First Defendant thereby accepted payment, became the true owner of the cheque and bore the risk in respect thereof. Before I deal with Plaintiff's first claim, it must be said that Mr. P Louw SC on behalf of First Defendant admitted after Plaintiff's evidence, that the mentioned first cheque had indeed been delivered to First Defendant and that it had become the "true owner" thereof. Because Plaintiff did not retain ownership of the original first cheque, there was no duty upon First Defendant at all either to Plaintiff or to anyone else in the context of the alternative claim as pleaded, with the result that this claim did not arise for adjudication. Ownership of the relevant cheque passed upon delivery because it is a moveable corporeal. See: ABSA Bank Limited v Greyvenstein 2003 (4) SA 537 HHA at 543 par 9. Mr. P Louw SC did not tell me what a "true owner" was in the present context, and accordingly I did some reading on this topic and found that the word "true" does not serve to qualify the ordinary meaning of "owner" as used in legal parlance. As a matter of proper terminology therefore the word "true" is unnecessary in the given comes.
See: First National Bank of SA Limited v Quality Tyres (1917) (Pty) Ltd 1995 (3) SA 556 (AD) at 568 A to F. In this decision the court also held that ownership of a cheque, viewed as a piece of corporeal movable property can
2013 JDR 0546 p7
Fabricius J
be transferred only in accordance with the general requirements of the law regarding transfer of ownership of corporeal movables. There must be delivery of the thing, i.e. transfer of possession, either actual or constructive, by the transferor to the transferee, and there must be a real agreement (in the sense of "saaklike ooreenkoms") between the transferor and the transferee, constituted by the intention of the former to transfer ownership and the intention of the latter to receive it. (At 568). The evidence tendered by Plaintiff in this context established without any doubt that such transfer of ownership had taken place and Mr. P Louw SC was quite correct in conceding this without any further ado. He is also correct when submitting that as a result the alternative claim did not arise for adjudication. Having become the owner of the first cheque, the First Defendant did not owe a legal duty towards Plaintiff or indeed anyone else, inasmuch that there is nothing to suggest that it acted wrongfully. During argument Plaintiff's counsel referred to First Defendant's affidavit resisting summary judgment, in which it was stated that the cheque was in all probability stolen by one of its employees or by a third party. It was however also denied that such employee would have acted within the course and scope of his employment. There was no evidence before me as to how this cheque was mislaid, misappropriated, or otherwise dealt with. First Defendant had pleaded that it denied, as a matter of law, that delivery of the first cheque discharged the Plaintiff's obligation to pay the relevant VAT. It pleaded that the first cheque was not collected by the ostensible collecting bank i.e. the Second Defendant, that it was not paid by FNB, and that the First Defendant...
To continue reading
Request your trial