Recsey v Reiche

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Solomon CJ, Wessels JA, Curlewis JA and Stratford JA
• Judgment Date: 27 September 1927
• Citation: 1927 AD 554
• Hearing Date: 20 September 1927

Wessels, J.A.:

Two claims were made against the defendant (respondent) in this case, (1) a claim for goods sold upon which there is now no appeal, and (2) a claim for £115 and interest on the ground that this amount was paid upon a wilful, fraudulent and illegal demand when in fact the money was not owing. It appears from the record before us that in August, 1922, the applicant employed the respondent as a clerk at £7 10s. 0d per month. This employment lasted until November, 1923, when the respondent informed the applicant that he owed him £100. Upon this demand the applicant gave the respondent a bill for £100 which was paid in due course. The applicant now alleges that towards the end of 1925 he became aware that he overpaid the respondent and that the claim upon him was wilfully, fraudulently and illegally made. The magistrate, after hearing the evidence, came to the conclusion that the plaintiff in the court below (the applicant in this Court) had not proved fraud, and upon that ground granted absolution from the instance. The matter was then removed to the High Court of South-West Africa, and the appeal was dismissed, mainly on the ground that fraud had not been proved.

Wessels, J.A.

It appears to me that the appellant was not debarred from succeeding in his appeal merely because he proved no fraud. He was entitled to succeed on a condictio indebiti provided he proved that he had paid the money claimed from him, that it was not due by him and that he did so in error relying upon the assertion of the respondent that he owed the latter the money. But in such a case the onus lies throughout the whole case upon the appellant. In his pleadings and in his contention before the magistrate the defendant admitted that he had made a contract with plaintiff by which he was to receive £7 10s. 0d per month, but alleged further that he was entitled to extra remuneration by virtue of a verbal agreement to increase his remuneration, and that his claim was framed on this basis. The plaintiff denied this verbal arrangement, and denied that he owed the £1,00, but pleaded that the money was paid in error. A transactio was also pleaded by the defendant but upon this point the magistrate did not accept the evidence of the defendant.

Upon these grounds the applicant contends that as the arrangement by which respondent was to get £T.10s. 0d per month was admitted, therefore the onus of proving the further verbal arrangement by which the latter was to receive £15 per month lay upon...