MN v AJ

• Jurisdiction: South Africa

MN v AJ
2013 (3) SA 26 (WCC)

2013 (3) SA p26

Citation	2013 (3) SA 26 (WCC)
Case No	A 653/2009
Court	Western Cape High Court, Cape Town
Judge	Gamble J and Allie J
Heard	August 20, 2010
Judgment	February 11, 2011
Counsel	HG McLachlan for the respondent.; An appeal against a magistrates' court decision. The order appears in para [80].

Flynote : Sleutelwoorde

F Enrichment — Condictio indebiti — Claim by husband for restoration of payments made to wife in terms of divorce order for maintenance of child born during their marriage, where later transpiring that husband not such child's natural father — In circumstances error not excusable nor enrichment proven — Also, given equitable nature of remedy, unfair to wife to order restoration of payments utilised for child's maintenance — Semble: Public policy requiring courts to be wary of recognising claims which necessitate G enquiry into paternity and which may prejudice child's constitutionally protected rights to family and parental care.

Practice — Pleadings — Particulars of claim — Particulars of claim lacking material allegations — Defendant not entitled to do nothing and then to complain that he/ she was taken by surprise by defective pleadings — If pleading bad H in law, answer was to except; if vague and embarrassing, notice to cure or further particulars — Also open to defendant to object to evidence not in accordance with pleadings — In circumstances of present case, where plaintiff's case formulated on basis of condictio indebiti and defendant made alive thereto in opening address, defendant not prejudiced by poor I formulation of plaintiff's claim.

Headnote : Kopnota

The respondent (husband) paid the appellant (wife) maintenance in respect of a child born during their marriage as per their divorce order — until a paternity test showed that the husband was not the child's natural father. He then had the divorce order suitably amended and, in separate proceedings in a magistrates' court, successfully claimed compensation from his J former wife on the basis of enrichment. In the wife's appeal to the high

2013 (3) SA p27

court it was contended that the husband's case was fatally defective in that A he had failed to make the essential allegations of an enrichment claim, and that she was therefore entitled to a dismissal of the claim against her.

Held, that it was so that the husband's particulars of claim lacked certain material allegations. Not only was there no mention of any enrichment of his former wife at his expense, but there was no allegation either that the payments B were made without just cause (ie sine causa) and were therefore unjustified. If a pleading were bad in law, the answer was to except; if it were vague and embarrassing, notice to cure may be given or further particulars may be requested; and if counsel for the wife had been genuinely taken by surprise by his opponent's reference to the condictio indebiti in the opening address, he should have taken the opportunity to say so at the outset and have C objected to the evidence if it did not accord with the pleadings. However, what she could not do was to sit back, say nothing and then complain that the pleadings were defective and that she was taken by surprise. In the circumstances the husband's case was formulated on the basis of the condictio indebiti, and she was alive to this and not prejudiced by the poor formulation of his claim. (Paragraphs [26] and [38] – [39] at 33H and 35G – I.) D

Held, further, that while there could be little doubt that there was an error of fact on his part which rendered payment of the maintenance indebite, that was not all that the husband had to establish in order to succeed with the condictio indebiti. He bore the onus of establishing the existence of all of the elements of the enrichment action relied upon. This meant that he had to E set up sufficient facts to justify an excusable error on his part in effecting payment of the amounts of maintenance to his ex-wife, that she had been enriched thereby, and that his estate had been impoverished in the process. It was apparent that, if she had not sought an increase in the child's maintenance, the husband would probably have honoured his obligation under the divorce order to maintain the child without demur. Further, the F fact that he took several years to initiate the paternity tests indicated that he was indifferent as to whether the maintenance was due or not, and that it could be inferred that he intended to pay the monthly maintenance whether he owed it or not. Having regard to all the relevant circumstances, the husband did not establish that his mistake was justified to the extent that it entitled him to 'judicial exculpation'. (Paragraphs [43], [54] – [55], [61] and [63] at 36I – 37A, 38E – F, 40G – H and 40J.) G

Held, further, that he could not establish a prima facie case of enrichment by simply proving the payment of money to her. He had to show that her estate had been enriched by the receipt of the monthly maintenance payments made in respect of the child and, importantly, what the extent of that enrichment was at the time that the summons was issued in the magistrates' H court. So, for example, if he could have established that she had saved the monthly maintenance and held it in a savings account in her name, there may have been an argument regarding enrichment. But, where the money had been spent on maintaining a third party whom the recipient was bound to support, there could be no enrichment. Accordingly, not only did he fail to plead any enrichment, he also omitted to set up a prima facie case of enrichment on her part at the commencement of the action. (Paragraphs I [69] and [71] – [72] at 42A – B and 42D – G.)

Held, further, that it had to be borne in mind that he had approached the court a quo for relief under an equitable remedy. Given the fact that the money that was paid for the maintenance of a child — and there is no suggestion that she did not use it for that purpose — it would not be fair to her to now order her to restore either the entire amount or a part thereof to him. J

2013 (3) SA p28

A (Paragraphs [73] – [74] and [80] at 42G – 43A and 44C – D.) The court a quo erred in finding that he had established a claim of enrichment, and the appeal should therefore be upheld.

Semble: The condictio indebiti was in essence an equitable remedy. In formulating such value-laden decisions, regard must be had to public policy, viewed through the prism of constitutionalism. Suffice it to say that courts may in the B future be wary of recognising claims in circumstances such as the present, necessitating an enquiry into paternity which may have the tendency to destroy an otherwise loving and caring parental relationship with a child, whose rights to family and parental care are protected under s 28 of the Constitution. (Paragraphs [75] and [77] – [79] at 43B – C and 43F – 44B.)

Cases Considered

Annotations C

Case law

Absa Bank Ltd v Leech NO 2001 (4) SA 132 (SCA) ([2001] 4 All SA 55): referred to

Affirmative Portfolios CC v Transnet Ltd t/a Metrorail 2009 (1) SA 196 (SCA): D referred to

African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A): referred to

Afrisure CC and Another v Watson NO and Another 2009 (2) SA 127 (SCA): referred to

B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A): E referred to

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): dictum in para [28] applied

Benson and Simpson v Robinson 1917 WLD 126: applied

Bowman, De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd 1997 (2) SA 35 (A) ([1997] 1 All SA 317): dictum at 44C applied

Cook and Others v Muller 1973 (2) SA 240 (N): referred to F

Frame v Palmer 1950 (3) SA 340 (C): referred to

Govender v Standard Bank of South Africa Ltd 1984 (4) SA 392 (C): referred to

Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A): dictum at 107C applied

Jacquesson v Minister of Finance 2006 (3) SA 334 (SCA): referred to G

Klein NO v South African Transport Services and Others 1992 (3) SA 509 (W): referred to

Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) ([2003] 3 All SA 1): referred to

Leeuw v First National Bank Ltd 2010 (3) SA 410 (SCA): referred to

Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 35 (SCA): referred to H

McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) ([2001] 3 All SA 236): applied

Nedcor Bank Ltd v Absa Bank and Another 1995 (4) SA 727 (W): referred to

Rahim v Minister of Justice 1964 (4) SA 630 (A): referred to

Robinson v Randfontein Estates GM Co Ltd 1925 AD 173: dictum at 198 applied I

Senwes Ltd v Jan van Heerden & Sons CC and Others [2007] 3 All SA 24 (SCA): referred to

Suid-Afrikaanse Onderlinge Brand- en Algemene Versekeringsmaatskappy Bpk v Van den Berg en 'n Ander 1976 (1) SA 602 (A): referred to

Trahair v Webb & Co 1924 WLD 227: dictum at 235 applied J

2013 (3) SA p29

Union Government v National Bank of SA Ltd 1921 AD 12: referred to A

Van Zyl v Serfontein 1992 (2) SA 450 (C): dictum at 456A – E distinguished

Vorster v Marine & Trade Versekeringsmaatskappy Bpk 1968 (1) SA 130 (O): dictum at 133D – F applied

Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A): dicta at 220H – I and 224E – G applied

Wynland Construction (Pty) Ltd v Ashley-Smith en Andere 1985 (3) SA 798 (A): B referred to.

Case Information

WP Coetzee for the appellant.

HG McLachlan for the respondent.

An appeal against a magistrates' court decision. The order appears in C para [80].

Judgment

Gamble J (Allie J concurring):

Introduction

[1] This is an appeal from the magistrates' court. The appellant (the D defendant in the...