In unjustified enrichment claims, prescription begins to run when the claimant is dispossessed of the property and loses the benefit for which they paid, not when the underlying agreement is declared invalid. The debt must be immediately enforceable before prescription can commence, and a claimant cannot coherently institute an enrichment claim while simultaneously defending the validity of the underlying agreement in ongoing litigation. This principle ensures that prescription legislation does not deprive litigants of their constitutional right of access to court when the facts necessary to make the claim enforceable only crystallize upon final dispossession.
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CCT 151/25 Wanjay Holdings Investments (Pty) Limited v Auckland Park Theological Seminary本站添加:
Chief Justice, members of the court, may please the court. I together with Mr. Ali and Miss Raw appear for the applicant.
>> Thank you, Mr. Ba.
>> May please the court. I appear for the respondent with my learned friend, Mr. Low.
>> Thank you, Mr. B.
You may proceed, Chief Justice, members of the court, you may be delighted to see that you have quite a narrow record before you.
This appeal in turn does raise a very narrow question with what we contend is a just answer.
The question that it raises is when did prescription begin to run on WHAMJ's enrichment claim against ATS?
Our submission is that the answer to that question is 11 June 2021 when this court delivered its judgment in the University of Johannesburg matter because it was on that date that the consequence had arisen that WHMJ was dispossessed of the property and lost the very benefit for which it had paid to Oakland Park Theological Seminary the sum of 6.5 million rands.
And if I am ultimately correct in that submission, then WHAMJ's claim which it instituted in March 2022 was plainly brought in time and Oakland Park Theological Seminary has no answer to the substance of that enrichment claim.
If I may provide a road map to my submissions, I intend to make five submissions. I apologize in advance.
They do bleeding to one another out of necessity, but there won't be undue repetition. They as follows. In the first place, I'm going to submit that the debt was not due as contemplated under section 121 of the prescription act until WHMJ lost possession and enjoyment of the property in June 2021.
Here, if time permits, I will also deal with the straw man argument that ATS has put up.
My second submission would be that before that date, WHAMJ could not honestly nor could it coherently sue ATS for unjustified enrichment while it and ATS were as friends still defending the validity of the principal lease agreement against the University of Johannesburg.
My third submission will be that the Supreme Court of Appeals suggestion that WHMJ should have sought a declaratory order earlier is no real answer to the problem and it indeed does not meet the facts of this case.
My fourth submission will be that ATS has no meaningful factual answer on the merits of the enrichment. It pleaded loss of enrichment or as the high court characterized it as non-enrichment is on the papers wholly inadequate.
Fifth, I will deal with jurisdiction and relief.
As I've said, the papers are quite narrow. I may perhaps summarize the background facts preceding my submissions into really five sentences and it's as follows.
ATS held a registered long-term lease, no material long-term lease over the U.J property and in 2011 it seeded that lease to WAMJ for payment of the sum of 6.5 million rands.
WHMJ paid that money, it took possession and it intended to develop the property into a religious-based school.
UJ then challenged the legality of that session. It treated it as a repudiation by ATS and it cancelled the lease. We all know that led to prolonged litigation running into almost a decade, a year shy of a decade.
But what's important is that throughout that litigation, ATS and WHAMJ acted together in opposing U.J's case. They maintained the common position that U.J's cancellation was unlawful and that the session remained operative.
Ultimately on 11 June 2021, this court upheld U.J's appeal, reinstated the high court order, and the result was that WAMJ was evicted and the notorial long-term lease was then cancelled. Now that is a critical event because until that event WHAMJ still had possession, still had enjoyment and still held itself out together with ATS to be entitled to remain on that property.
So in respect our first submission, the central question is really one of framing because that is where the discipline was unfortunately lost.
The question that arises is when could WHAMJ enforce its enrichment claim against ATS?
In the words of Njongi and those judgments that follow it, when was that claim immediately payable?
The court is very familiar with the references that have arisen repeatedly in respect of these judgments dealing with prescription. But for your ease in Jangi, the formulation arises at paragraph 43.
The debt must be immediately enforcable before it can be claimed. And at paragraph 47, what this court reminds us of is that the claim is immediately recoverable or whether a claim is immediately recoverable must be apparent from the circumstances that exist at the time that the proceedings are instituted.
What we also know from links of this court's judgment at paragraph 17 where it refers to a number of judgments including Tritter versus Diesel and Deoits. You've got to ask yourself as to whether the counterparty has an obligation to immediately perform. So it's the opposite side of the coin.
What our submission is is as follows.
WMJ could not immediately enforce the claim in the language of Njangi and ATS was under no obligation to immediately perform in the language of Deote before this court's judgment on 11 June 2021 because before then the necessary facts to complete the cause of action had not yet occurred and our submission in that regard as you would have seen from our written submissions is anchored in three independent factual propositions.
First, WHMJ was not yet impoverished because it still retained possession of the property as as rep supropacity for its payment of 6.5 million rand.
So the judgments like motoonia and the judgments referred to therein like yellow star properties, strutter, gore, fluxman is of no application to this case because in this case WHMJ had not suffered harm until its dispossession after June 2021. In those cases that Makana refers to harm had already occurred and that was the trigger for purposes of the commencement of prescription.
Our second independent proposition is as follows. WAMJ retained a registered notarial long-term lease reflecting that it held a limited real right over the property. The cancellation of its registration was only finally ordered on 21 June 2021.
Until that cancellation, it could exercise rights under the registered notarial long-term lease against all.
Our third independent proposition on which our primary submission is anchored is that under the law of lease, a lei is not entitled to claim until it is dispossessed or its enjoyment is disturbed by judicial decree. We've referred to the judgments of Lopshire versus Foster and Foster and we've also referred to the judgment of Donninger versus Thorp.
The respondent's answer or response to this third proposition is that WHMJ was neither a lesser and nor was it a tenant and so those principles are not applicable.
But that answer ignores precisely the substance of what was going on. In substance what occurred is that WHAMJ held the property on the back of ATS which ATS assured WAMJ that it could do.
and ATS's assurance came through for as long as this constitutional court had held out on its judgment on the 21st of June 2021.
So to round off my first submission, this is not a case where a plaintiff set back after suffering a completed loss. Quite plainly, the loss was not completed until WHMJ was finally deprived of its use and enjoyment of the property.
And that deprivation did not happen upon receipt of a cancellation letter in 2012 by Weber Wensel attorneys.
On the contrary, that cancellation itself was hotly contested between ATS and WAMJ on the one hand and U.J on the other hand. It did not even happen when the high court ruled in 2017 because the matter proceeded on appeal where ATS was successful and WHMJ continued to remain in possession while the parties maintained their common stance against U.J. The real and irreversible deprivation came only when this court reinstated the eviction order on 11th June 2021.
And that was something which even in the words of ATS it did not foresee.
What this court would have seen is that we adverted the letter that we had received the email that we had received from ATS the moment the Concord judgment had come down was handed down. That's Nexia WF4 at page 11.1-77.
What ATS effectively said is, "We're sorry for your loss. You were good to deal with in business. You have a lot of integrity, but that's not our loss to bear." That was the Kurt response we ultimately got after a long road of a decade traveling together fighting the same fight as against the University of Johannesburg.
So as a matter of ordinary language and legal sub substance, we submit that that is when the debt became due.
Our second submission is that before June 2021, WHMJ could not coherently sue ATS for enrichment while still resisting U.J's challenge to uh U.J.'s challenge alongside ATS.
The Supreme Court of Appeal held that the 2012 cancellation letter gave WHMJ all the material facts it needed and that nothing precluded it from seeking a declaratory order to interrupt prescription before the U.J litigation ended. That's a proposition that the respondents have embraced.
But that suggestion by the Supreme Court of Appeal as embraced by the respondent is with the greatest of respect a nonsequittor. And it's a nonsecutive for a simple common sense reason. Leave aside everything else. There was no liz between ATS and WHMJ at that time. They were friends. They were acting in lop glock lockstep with each other against the University of Johannesburg.
And that is no peripheral matter. That is an issue which is central to this case. The simple question that arises is what would ATS have WHMJ do? Would J be expected on the one hand to hold its hand to its heart and to continue asserting that in the U.J. litigation, the session was valid and the cancellation was invalid. But on the other hand, go to court, hold its hand on its heart again and say, well, the session is invalid and we are entitled to claim under the laws of enrichment from ATS.
Requiring litigants to take contradictory positions before our courts is with the greatest of respect absurd and with the greatest of respect, it would make a mockery of our court systems.
It is not a coherent legal position. It is not commercially realistic and it is not what the laws of prescription should require particularly where section 34 rights of access to court concerns are engaged.
If this court accepts that a claim is not immediately enforceable when bringing it would require the claimant to contradict the very basis on which it is then defending its existing position and rights impending litigation.
Then we don't need to enter into the difficult abstractions and doctrinal arguments that may or may not arise in respect of this matter. that we submit results in the appeal being disposed of with respect in favor of WHMJ.
The third submission concerns the declaratory order suggestion.
The Supreme Court of Appeals reasoning ignored the reality that ATS and WHAMJ were not averse to one another in the U.J litigation period.
Their reasoning also ignores that courts do not issue declaratory relief merely to express opinions or to answer hypothetical questions.
This court in the notso recent judgment of Pidwin at paragraph 50 said as much to endorse the SCA's reasoning would encourage litigants to treat our courts with might I mention its scarce resources as a playground impermissibly seeking the opinion of our courts on hypotheticals while the real position of whether WHMJ is actually going to be deprived of possession remains in flux.
So the declaratory order answer with great respect is not only merely unattractive, it is legally unsound and it is procedurally unsound.
My fourth submission then goes to the merits of enrichment.
If this court concludes that prescription does not bar the claim, Oakland Park Theological Seminary has very little left.
The merits issues are completely narrowed. The only issue that arises on the merits is ATS's purported defense of non-enrichment or loss of enrichment.
But with respect, that defense is threadbear.
When money is paid, we know as a matter of established law, there's a presumption of that enrichment arises and the defendant bears the onus to prove its defenses of non-enrichment or loss of enrichment. And that's what Kura Granite tells us at paragraph 21.
Against that standard, ATS does not say what it did with the money. It does not say when it seized to have it. It does not explain whether the funds were used to acquire assets to reduce liabilities otherwise improve its estate.
In short, Chief Justice, members of the court, ATS does not put up the kind of factual material needed to discharge the owners of proving loss of enrichment.
What this ultimately means is that ATS's case is not one of substantive innocence. It is really one purely of a misplaced technical avoidance.
If a if I may now deal with jurisdiction before moving on to my concluding remarks.
deal with jurisdiction last because this court has in numerous judgments when it pertains to time bar provisions whether statutory time bar provisions or contractual time bar provisions always come always invoked its jurisdiction in these circumstances simply because it has a bearing on the rights of access to court. It's done that recently in the judgment of Laru. It's done that more recently in the judgment of Radome versus Ferrer from old times in Vesen versus Napia Lings Makonia and the list goes on. The bottom line is that this court's jurisdiction is invoked simply because this is clearly a case of a misinterpretation of our laws of prescription which has the consequent effect of a deprivation of a right of access to court of the enrichment claim being determined to finality as it ought to.
Moreover, this court's jurisdiction is enjoyed also because this is an issue that has not previously enjoyed the attention of the court. It's admittedly a novel issue in this sense that the invalidity of the session in the present matter is dependent upon a finding whether the principal contract to which the sessionary was not a party was validly canled. Now, that's something that resides out of the hands of contracting parties in multi-party contracts that are sitting outside of the primary contractual relationship.
For those reasons, we submit that this court's jurisdiction is engaged.
If I may make concluding submissions, then they along the following lines.
This is the type of case. This is the archetype case I would submit which our courts have invariably spoken of where there's got to be a fair balance between the guillotine period on the one hand and the need to ensure fairness on the other hand in those cases in which a rigid application of prescription legislation or rigid application of the common law would result in injustice.
The injustice in this case is obvious.
ATS took 6.5 million rands from WHMJ.
WHMJ did not receive the full use of the property as contemplated.
ATSS itself had previously submitted to this court holding its hands on its heart as appears from the U.Judgment Judgment that WMJ would reclaim the money from it and it used that as its candidate for purposes of advancing its estoppel argument as this court may remember and it used it as a candidate for candidate for advancing it its estoppel argument on the basis of actual prejudice that it would suffer not potential prejudice or not a claim that has prescribed but yet after the final judgment ATS refused to J and instead pleaded prescription and seeks now to retain the proceeds of that session from WHMJ. That factual matrix matters. It matters because it confirms that WAMJ's inaction before June 2021 was not neglect, was not indifference, was not a tactical delay, which all of which our prescription laws penalize. It was entirely the natural consequence of the party's common position that the session remained good and the property remained lawfully occupied pending final adjudication.
So this is not a case in which a creditor by unilateral choice postpone prescription.
Rather, this is a case in which the facts necessary to make the claim enforcable only crystallize upon final dispossession.
We therefore ask that this appeal be upheld and that the order of the high court be reinstated. We also ask for the cost of two council in the appeal. Those are my submissions for the applicant.
Mr. Babiria, mindful of the distinction between knowledge of facts and knowledge of legal conclusions.
And in Laru, the court crafted a very careful and limited exception to that in relation to claims brought by a client against their former legal practitioner because the court said, "Well, if you have knowledge of the fact that your lawyer said you don't need to authorize me in writing to uh exercise the option, um it would be almost unconscionable for the lawyer to rely on that fact as constituting the date on which prescription would run. Now, in the context of this case, the this court's finding in June 2021 was a legal conclusion, was it not? In the sense that it said that the session was unlawful, was invalid, and it was a legal conclusion based on a set of facts. And those facts would have been the the con the the agreement entered into between the parties. But the court then ultimately concluded that that was you argue that those that even if that was a legal conclusion, it was inextricably intertwined with with the facts. And your argument today is also that a necessary jurisdictional fact to found a claim for unjust enrichment could not have arisen at any stage prior to June 2021.
To what extent would we be sort of muddying the waters and creating legal uncertainty if we in a sense uphold your argument? uh because on the facts of this particular case, one might say it should be upheld given the the the peculiar nature of the facts that the parties were sort of in the same uh side of the ring for a long time.
But it might it may come back to to bite this court and the juristprudence if in another situation we we allow in a sense that kind of seepage. Do do you sometimes a particular case might require a departure from from clear and coherent legal principle but it it but that departure could set a precedent in other cases.
How do we manage that if we if we are with you justice Colipin? Uh I I I'm very alive to the concern that you have and it's for that reason I have not engaged in a doctrinal excurses that would take you into the realarmms of uncertainty. I've got perhaps three or four responses to the issue that you have raised with me. Of course, it is undesirable for this court to muddy the waters and I would not urge the court to muddy the waters just to come to the rescue of my client. Far from it.
The answer actually lies in the manner in which Laru has been formulated in the manner in which Makona has been formulated and indeed in the manner in which every other judgment has been formulated.
Let me start with Makona for instance.
Makona at paragraph 38 tells you quite clearly that there are cases in which it would be very it's actually difficult to distinguish conclusions of law from conclusions of fact. And what one's got to do, which Makana tells us about in paragraph 38, is that you've got to make sure that you analyze the facts of the matter very carefully to draw out that distinction. So that's the first point.
The second point is that you've mentioned that the U.J. judgment found the session to be invalid.
That's something which the respondents also take on as an argument in paragraphs 4, 5, and 24.5 of the heads of argument.
That with respect is not absolutely accurate. What the UJ judgment was called upon to determine were by and large three issues.
They were required to determine was the lease agreement between ATS and uh the University of Johannesburg a delicus persona. If it was, was the session a repudiation of that lease agreement? If it was, was the cancellation in those circumstances a valid cancellation? And leave aside the estoppel and waiver arguments. It found in the affirmative for UJ in respect of all three.
The consequence of that, the cancellation of the lease agreement between U.J and ATS meant that the session could no longer be valid. So we don't rely upon a legal conclusion made directly as against WAMJ in the U.Judgment for purposes of precipitating this course of action. What we say factually occurred is that there was a legal decree that had been made which had triggered a set of events that resulted in our dispossession and as a consequence of that that's when prescription commence to run and looked at it from that prism and that's why I said right at the outset it really depends upon framing looked at it from that prism there would be no need to muddy the waters there would be no need to change any of the doctrines in any of the cases cases except Laroo has been carved out for a very limited exception and that's as between legal representative and its client and that is not one of those cases but what the Supreme Court of Appeal could not do and ought not to have done was elevated the general rule in uh Laru for purposes of contending that there can be no facts that would then eventuate which would result in a cause of action being triggered.
the um let's let's let's let's create um a different set of facts but similar at least I see it as similar and I want to hear your comment on it. Let's say someone um was um a passenger in a taxi that then got involved in an accident with another vehicle.
Uh and as we know um a claims claims prescribe after a certain one time.
Let's say then the person says he did not lodge a claim because he was waiting uh for the claim between the taxi and the other vehicle to be determined before he could lodge a claim.
Um what what what do you think a a court should do that should do under those circumstances?
Would prescription not run against that person or would then be a court be convinced that the person was correct in waiting for the finalization of that claim between the two motor vehicles or should the person have interrupted prescription?
Justice Chiki um the critical element for the running of prescription on the facts that you have postulated are present and that is there is harm and he's aware of the harm. So in other words he's sitting in the taxi it meets with an accident he's endured an injury.
The moment that injury is there, he has sufficient to know of the full facts as to whether there was negligence on one party or the other party. Those are the kind of matters which this court in links as well as in Mr. Cona have spoken of as being legal conclusions which ought not to trouble him.
Distinguish that from our case. In our case, despite the fact that there was a cancellation letter, there was no impoverishment. In other words, there was no harm and there was no harm until such time as we were told, "Pack your bags, pack your crav, leave the premises. You are no longer entitled to retain use and enjoyment and possession of the premises." So if if if there's if there's a threat of an impeding harm, >> I beg you pardon. I didn't hear that. If there's a threat of harm, >> well, a threat of harm is not adequate and one has got to look at the Gore judgment for different circumstances of course in the Gore judgment, but one's got to look into the Gore judgment for that matter because what the Gore judgment also talks about is that you don't have prescription running when there are allegations that are controverted by the parties. Yeah, there may have been a cancellation by U.J, but that wasn't the final word. The cancellation was dependent upon legal proceedings so that uh WHMJ could ultimately be sorry to interrupt you when you say there wasn't final world.
Are you meaning are you referring to a final legal conclusion?
Because um I understand the act to to require knowledge of facts.
Uh once you get a lengthy uh letter from attorneys threatening and intimating that the session agreement is not valid and intimating that um if uh this continues, the situation continues, there might be a legal action that will follow. Is that not enough for you to then say wait a minute I'm assisting uh uh HS in this session agreement because I'm part of it but I should interrupt prescription was the rational way not to do it that way.
Justice Cheeky, the question that would arise is that assuming we took the letter, WHMJ took the letter on its terms, what was WHMJ required to do at that point in time, it could not have sued ATS without any more because it still had possession of the property.
assuming it decided of its own accord to dispossess itself from that property.
There are number of unimaginable variables that may have arisen.
um once it sees that letter couldn't it have approached um ATS to then say there's a threat here I will just for the sake of interrupting prescription uh commence with litigation just for the for the purpose of of of interrupting prescription could that not be That's precisely what I argued against in my founding argument. It cannot be done and it should not be done because that is precisely the kind of thing that makes a mockery of the court systems.
ATS and WHAMJ in those circumstances will be pretending that they're fighting with each other just to interrupt prescription. Why should they pretend when prescription is indeed not interrupted by virtue of the fact that there hasn't been a dispossession?
You would be bringing to court something a pleading in terms of which you cannot hold your hands to your heart and say I believe in the veracity of the allegations that I've made over there.
You actually in collusion with one another bringing proceedings to court simply to interrupt prescription.
with with great respect I I I cannot see that as being a feasible proposition or path for the parties to embark upon.
>> Okay. Um thank you. Thank you Mr. Babameir. On the issue of jurisdiction, um this court has spoken a lot about uh the interpretation of section 12 and each case obviously will depend on its facts. So uh whenever cases come facts will be different but we know how the court has interpreted section 12.
Um should the fact that the the facts are different in a matter give us jurisdiction in an established matter because you know that we don't have a jurisdiction when a case concerns misapplication of an established legal principle.
>> Yes. Uh I do recall that the contesting argument in the Laroo judgment to persuade this court that it does not have jurisdiction was the mislication of facts. But ultimately once we get through the Rubicon so to speak and whether you are determining a mislication of the law or a misinterpretation of the law the effect is the same. The effect is a deprivation of a section 34 right under the Bill of Rights that engages this court's jurisdiction squarely. But we don't say that there was just a mislication of the law in this matter. We say that there was a gross misinterpretation of the law the law in the context of novel circumstances which engages this court's jurisdiction.
>> Thanks CJ. Thanks Mr. Aame.
Mr. Babam here. Um it seemed to me that uh the facts were also this that once um YMJ received the lawyer's letter it after that it was not able to exercise its rights under the session.
That to me seems to be a fact um that could complete the circle of the minimum facts, the bare effects that it needed to to be able to to to institute an action h against ATS. ATS under the session the the deed of session had given certain warranties under clause seven that you will have vacant occupation and I've paid my rent and all of that. Um yet immediately on receipt of the letter that those those warranties and the rights emanating from the session could not be exercised. It had paid the six and a half million rand um and and and ATS had been uh enriched as you say. Why is not that does that uh form a complete set of facts on which uh WMJ could have sued as in October 2012.
>> Justice Tambuza.
What occurred is that after the cancellation letter, the notarial long-term lease remained, the session remained and WHAMJ remained in occupation.
WHAMJ of course service the property for as long as it remained in occupation.
It did not lose any rights. So the right that you refer to or the warranty that you refer to is clause seven. Law 7.1.3 says ATS and sorry if I may just take you there. It's an extra WF1 as as you you know ATS hereby warrants unto the sessionary which warranty is material and on the strength of which the sessionary enters into this agreement that as at the effective date it is not in default of any of the terms or conditions of the lease. What you have is you have an assertion by U.J J that on its view and its view of course had differences of opinion from the high court to the supreme court of appeal and ultimately to the constitutional court that it wasn't in breach of any of the provisions of the lease as a consequence of which ATS permitted WHMJ to occupy the property so there was nothing lost as to whether WHMJ decided to hold back in terms of putting up structures and so forth that's not a loss of its Right.
That's an election that it makes in terms of commercial realities to weigh up risks. But for as long as it's got what the lease agreement provides to it, in other words, the right of occupation and the right of possession, it hasn't suffered any loss.
>> But it seems that um WMJ had resigned itself to the fact that look, I cannot exercise my rights here unless I go to court.
Isn't that on its own?
um a a complete um set of of of facts that I can't I can't exercise my rights under this session.
Whatever the court will say, I'm not interested in that. I concluded this agreement for a specific per purpose which I now cannot realize because of this letter.
the fact that it chose to um retain the notorial um uh registered um notarial deed.
Isn't that also its election and it um driven by its own view that look I think I am right that um U.J J doesn't have a valid um action a valid cause but that's besides the point as between itself and ATS it knew that it had accepted that it's not able to exercise its right under the session.
>> Justice Damuza just two two submissions.
The first is that WHEMJ wasn't required to go to court for purposes of obtaining legal certainty. It was the other way around. It was the University of Johannesburg that needed to go to court to have its cancellation effectual and to ultimately then obtain the eviction of WHMJ from its premises. So in other words, it's cancellation against ATS effectual and then the eviction.
Up until that point in time, what you had was a contestation between primarily ATS and the University of Johannesburg. But while that contestation had taken place, you had ATS that had said to RAMJ that you can still occupy these premises and they did. As to what >> the main list had been cancelled by U.J.
did didn't U.J um cancel the list.
UJ in other words the main lease um had been cancelled and that's what rendered everything else that emanates from the main list or that you know ensues um um incapable of performance.
Justice Embuzza, the cancellation of the lease is of no moment to this matter.
And the reason I say that it's of no moment is because the cancellation was contested. And for as long as it was contested, an important ingredient for purposes of an enrichment claim was absent. There was no impoverishment. There was no dispossession. And in the absence of the dispossession or the impoverishment, your prescription your prescription legislation under section 121 is simply not triggered.
>> Okay. I I think it'll go back to what Justice Cher then then then um Wam J elected to um go to court so that it could have certainty of the the legal certainty about the validity of all these documents or all these these agreements but thank you are here >> Justice Debusa may I just correct that WHMJ did not have to go to court. It did not go to court. There was no Liz between the University of Johannesburg and WHMJ. There was a Liz between the University of Johannesburg and ATS which had consequences.
What we rely upon is not that Liz and the legal certainty emanating from that Liz. We rely upon the consequences that trigger those facts.
>> Well, as to who the the the litigation was between Um it I don't think it matters much. What what matters is that um WMJ opted to wait for um a court decision, a a court pronouncement on the validity of the lease between um U.J and and and and ATS. um it wouldn't have chosen to go to court um not because the facts that I I set out that look I'm not able to exercise my my my rights are not in existence that that that is there doesn't seem to be contestation as to as to that and ultimately this is what's happening now between WMJ and ATS in that what OMJ is saying now is what it could have said in October 2012. It seems that you got the money, I paid you, but I'm not not able to to exercise my rights and therefore you've been unjustly enriched.
Justice Dambuza, but that that is a missing feature in the respondent's case because the respondent doesn't identify what rights I'd lost which would have the effect of triggering prescription.
Our central case and we've really just got one central point in this matter.
It's the dispossession that triggered prescription. If I'm right on that, I should win this appeal. If I'm wrong on that, I should lose this appeal. But it's really that narrow point. It's really it really comes down to whether the the dispossession features as a central theme for purposes of this court's judgment or not. But it's not something that has been touched upon by the respondents.
Bamia just following up on this line of questioning.
There are four minimum facts required for this uh unjustified enrichment claim.
ATFs ATFs must have been enriched by 6 and a half million. You must have been impoverished by the 6 and a half million. There must be a link between the two between the enrichment and the impoverishment. And fourthly, that enrichment must have been senior causa.
In other words, that the secession contract was invalid. Now, here the it seems to me the crucial one is the last one. Uh the senior causa element is the fundamental difficulty. Can I just interrupt myself and say on the equities?
I feel for you, but we're not a court of equity. We're a court of law.
So having said that um is the fundamental flaw in your case the entire basis on which it is brought is that this court when it gave judgment in the U.J case that did not render the session void.
The session was void up in it. You you say so so yourself in your papers. It's a1 case lines 124 I think. Paragraph 74.1 you say it is common cause that you is it miss Ali or Mr. Ali speaking. Uh it is common cause that ATS received payment of the 6 and a half million from WG in terms of the session agreement.
Which session agreement was invalid and void up in.
So what this court said in 2022 was it or 2021 didn't render the session void.
It was void up in it. Is that not the fundamental problem from your case?
Uh justice maj. It's not for this simple reason generally in a linear relationship where you're dealing with enrichment causes of action and it's a general principle.
Of course they say prescription commences to run at the time that the unjustified transfer had been made and that is as a consequence of that void abinio agreement.
But that general principle is not an immutable principle and it's certainly not an immutable principle viewed from the prism of the prescription act for purposes of prescription. It's not the tail wagging the head. It's the other way around. You don't ask when did the enrichment cause of action arise. You ask yourself what does prescription require of you. Prescription requires of you to answer when is the debt claimable? When is performance due? When is the debt enforcable?
Now that is a fact sensitive inquiry and it's not a one-sizefits all on the basis of general principles of enrichment law.
In this present case, unlike the other enrichment cases that one deals with where you have two parties and there's an agreement that has been concluded and suspensive conditions have not been fulfilled and you know a certain long stop date as to when the suspensive conditions needed to be fulfilled and the like uh you would have time and you would have the ability to then bring your claim within the time period. This case is somewhat different. This case detracts from the certainly not so immutable general principle of enrichment law because you've got to ask yourself the question apart from the sin kaza when did the impoverishment take place it may be that ultimately because UJ was correct in contending that its cancellation was effectual that the sessionary agreement or the subsidiary agreement was void abinia but that matters is not what matters is whether you fulfill the other requirements of enrichment. Was there an impoverishment at that point in time? And if the answer to that question is no, there was no impoverishment then prescription doesn't commence to run. Was there an enrichment at that point in time? The answer is no.
ATS still while fighting against U.Jsured that you remain in occupation of the property. I couldn't satisfy the requirements for enrichment in those circumstances. Once again, the answer then becomes prescription could not have commenced to run.
See your whole your whole r the rationale for your possession of that property was based on a session and once you say that the session was void app in niche once you accept that just seems to me you have an insurmountable obstacle but I've heard your answer I don't want to dwell on it on my colleagues have alluded to the letter of five of October 2012 that was the first caution you Then on 10 March 2017 there was the judgment in the high court of Victor J in division and then on 4th July 2018 another judgment of the full court in the division.
So on these three occasions at least by the earliest 5 October 2012 and by the latest 4 July 2018 you've had these cautions that this session is void.
Now, how can the court excuse your inaction based on you drawing the wrong legal conclusions from all of this? Whether you agree with the judgments on the letter or not, surely we can't we can't allow you to say, "Well, I drew the wrong legal conclusion. Therefore, you must excuse me." This is not a Laroo case. I think you've conceded that. Laru is a very narrow exception. So on what basis can can the court excuse your ignorance and actually disregard of these three warning signs that that came?
Justice MJ, you're quite correct. We this is not a Laroo case. Uh but the issue is not about the warnings because that's precisely what they were.
They were warnings. You've mentioned the high court judgment in 2017.
You've mentioned prior to that of course the letter of October 2012 and you mentioned after that the full court judgment of 2018. There was also the Supreme Court of Appeal judgment after that which disagreed with the full bench as well as with the high court. The point that I make is remains the same. Throughout this period, those warnings did not manifest into firm events resulting in dispossession.
The Supreme Court of Appeals judgment did not result in dispossession and nor did the preceding judgments. The dispossession itself, in other words, the fact of the impoverishment and the corollery of its enrichment only arose when this court handed down its judgment. So the issue about the warnings or the cautionaries are of no real moment in the context of the factual assertion of impoverishment and enrichment.
Now do I understand your case correctly and I think you've you've said so to one of my colleagues who asked you questions earlier. Your case as I understand is that is that WMJ had no standing to contest the validity of the lease agreement as between U.J.
and and the seminary. Um that is your case. Am I right?
>> Indeed.
>> But as I said, it misconstruses the basis of why the session agreement was invalid. It wasn't invalid because uh the lease agreement was validly repudiated, which is what you say you should you couldn't challenge. It was invalid because it was a delect persona and couldn't be seated.
The delective persona was the rationale for the repudiation or in other words for an affirmative finding on the repudiation as I understand it. Assuming that the court found that it was not a delector's persona as one of the three courts had found well then of course there could not have been a repudiation. If there could not have been a repudiation, the cancellation would have been ineffectual. So the delictus persona is is of course as I said the rationale which triggered the ultimate conclusion and it's only when the ultimate conclusion of cancellation was triggered that's when uh it in turn unleashed a new set of facts of dispossession.
I must just say that there's a problem in this case that uh I say just in passing that it seems to me that the high court in it judgment and I'm generalizing now relied only on section 2011 whereas SCA relied only section 123. Both of them are wrong. You don't read the prescription act like that. You read it realistically. In fact, those two sections cross reference each other.
I'm just saying that in passing. Now you see we as a court as we have said over and over again we've said so in Laru we've said it's we can't allow a situation where a litigant can say as I've said before excuse me from drawing the wrong legal conclusion because then it means that person not person's not fair with with the law would be able to use that as a as an excuse all the time and that fosters uncertainty and it's just it's just not sensible law. Uh I think you accept that >> Justice Majid. I I do accept it and I do accept this court's judgment in a variety of cases where it has uh spoken about the virtues of having a guillotine period for purposes of advancing claims and and like I said, you know, I would never want this court to muddy the waters just to come to the benefit of my client. I think it's about an appropriate interpretation of the laws.
But having said that, I think the key factor over here as it was in every other judgment is you've got to look at when the harm had occurred. If you are with me on the fact that the dispossession equates to the harm, then I should win this appeal. But if you are against me about the dispossession equating to the harm in the context of this matter, then I will lose the appeal. But it really boils down to that narrow issue. But the one thing for certain is that there will be no upsetting of the law in those circumstances.
>> Since we are talking about disposition, that bring me to what is almost my last question.
You say that you were only impoverished when you were evicted pursuant to this court's order. Uh because before that you'd retain the possession of the property and you had this notarial long-term lease.
Um but it seems to me that that question of reciprocity, you have a long-term lease, you have position and you because you have paid that is a feature of contract.
Um reciprocity is fundamental to to the law of contract. But unjustified enrichment claim works differently.
It's not based on contract.
Uh it's not the reciprocal action of having paid and therefore getting possession.
It's based on the fact that there has never been in this case a valid session.
So, it seems to me it's improper to say based on the fact that I've paid and I've got possession uh I couldn't I couldn't proceed and I because I hadn't been impoverished.
That's that's correct. Uh the reciprocity element of it is a creature of our law of contract.
However, we don't ignore the contract because it was the void contract that resulted or or precipitated the payment on the one hand and provided the occupation on the other hand. In other words, in the let me speak in classic terms, in the erroneous but bonafideed belief that the agreement was valid, I made overpayment.
Having made overpayment, I received possession. I am now impoverished as a result of me not having that possession any longer.
Whereas you are enriched as a result of retaining that 6.5 million rands which was made pursuant of course to the void agreement. While reciprocity of course is the language of contract law, it doesn't take away from the fact of the payment having been made in terms of a void contract and possession having been obtained in terms of a void contract. The ultimate issue of course that resides over here is when do you lose for purposes of claiming impoverishment that possession because you don't have your possession nor do you have the money which you had paid over under that void contract >> the problem with this impoverishment argument and I'd like to take you to the pleadings in the high court this is at case lines double 01-13.
It's paragraphs 33 and 34. It's at the conclusion in your founding affidavit.
Just going to see if I got that right.
>> That's the concluding paragraphs.
>> That's the concluding paragraphs.
It's something you repeat in this court.
Um, I can just tell you that in in in your written submissions and I'm going to go to the perhaps that's easier. Let's go to your written submissions I've I see you I've been prompted with the case lines. It is the right correct one at page 14 of your written submissions paragraph 32.2.
uh you say that you've been impoverished by the payment of 6.5 million but as I understand this pleading in the high court you say that that impoverishment is as a consequence of uh of the loss of use and enjoyment of the property. Is that what you pleaded? I just want to understand your pleadings correctly otherwise I wouldn't put the question if I'm wrong.
So just to just to just to summarize, you say you've been impoverished because you've lost 6.5 million because of because of uh of that payment.
You didn't plead that it is for the loss and enjoyment of the property.
>> I'm wrong. Please show me on in the pleadings where where I'm wrong. I hope you understand my question.
>> I do. Uh if if if I may if I may paraphrase, you're saying that I link my loss directly to the loss of the 6.5 million as opposed to the loss of a the use of the property, the possession of the property.
>> You put it much better than I did. Thank you.
>> That's a rare moment.
Uh Justice Majett, if I may ask you to refer to paragraph 23 of the founding affidavit.
The allegation is made in paragraph 23, but the end is the but the end is result is that the applicant had parted with its money and is not in possession of the land.
In other words, if it were remained in possession of the land, of course, it could never complain about the impoverishment of the 6.5 million rand.
But because it has neither, it's entitled to return of the one once the enrichment claim is perfected. But are you not in in effect saying there there too that your impoverishment is due to your eviction, your loss of possession and not due to parting with the 6 and a half million a difference between the two as you'll appreciate.
I'm I'm not sure that I can agree that there's a difference between the two.
The one is the consequence of the other.
If I can play it out in the following manner.
A possession was obtained as a consequence of paying the sum of 6.5 million rands.
When possession was taken away and that was something I would never ever be able to get back, I'm impoverished by the sum that I had paid for that possession.
Last question is is is is is your alternative argument uh as I understand it. Uh and I'm looking at paragraphs 62 and 63 of your written submissions at page 27.
You submit there at paragraph 62 that if we if we consider the SCA judgment to be in accordance with the legal exception rule that was created in Laru then as I understand it we should extend the limited exception for the protection of OMJ's section 34 right of access as you put it and then you enunciate that further extension of the limited exception in Laru. It's quite a mouthful, but you know what I'm saying. Uh we should extended in the terms more or less in in paragraph 63. Do you persist with that argument?
>> Justice Mid in preparation for this matter. I concede that that is an inelegant thing for this court to do and the court need not trouble itself with creating even further exceptions. I think all that the court needs to do is interpret the prescription act in accordance with the constitution as required by section 39 on the facts of this matter and no more than that.
>> Thank you for that. It makes our task a little bit easier because it was going to be a long shot to extend it further than Luru because we've agreed that it was to fit in with cases of professional negligence to bring lawyers into the same mold. My last question I promise you is a further question that uh seems to me uh geared at your alternative argument. You raise estoppel. Do you persist with >> Justice Majid? No. I see there are contestations in the respondents heads of argument as to whether it was abandoned in the high court in the Supreme Court of Appeal. I was not there. I do not wish to give evidence from the bar and if my primary argument remains my primary argument. You need not trouble yourself with a stop. Again, thank you for making our task a little easier because again that one is also going to be a long shot on the pleadings and on the law. Can I just conclude and I say this not only because morally I feel for you uh on the equities but also I think it needs to be said one appreciate it when council abandons points that really take you nowhere and I I really want to thank you for that.
It it narrows the focus of the case because this is really a narrow focus in this case. I just just like to express my personal appreciation for that. Thank you. Thank you, Chief Justice.
>> Mr. Babameia, when you kicked off your argument, you listed five five points that you said you were going to address us on.
Jurisdiction seemed to have been the last point.
Uh, I was wondering whether the reason it was the last point was it because you thought you already had your foot at the door or it was an issue not seriously contested.
>> Justice MPO, I I'm going to say this with a certain level of embarrassment. I I thought of dealing with jurisdiction last only because in the structure of my address that seemed to be a more coherent fashion in doing it. But I have addressed all points and I've taken all points with the seriousness that it deserves.
>> But do you realize that for you to have any audience or hearing the first point or the first box that you have to take is jurisdiction.
>> I accept that. So I just want us to start at the beginning on the jurisdictional point in your papers in your application for leave to appeal.
uh when you talk about how this court's jurisdiction is engaged uh I'm I'm not using the case lines you say these are the points uh you are focusing so closely on the section 34 rights and you round it up by saying the SCA's restrictive interpretation of the legal conclusion rule is the kind of strict interpretation that this court has held to infringe the right to redress through our court. saw raising a constitutional issue. Let's park it there.
At the high court, at the SCA, this was not an issue. Am I correct? A constitution that this constituted a constitutional issue.
>> Justice Mtopo, I I was neither at the high court nor at the Supreme Court.
>> When we looking at the record, >> whether you were there or not, I wasn't there.
>> Yes, of course. I'm making submissions from the record. And from the record, what I understand is that in the replying affidavit, the section 34 challenge had been raised in the replying affidavit before the high court. I understand that the Laru judgment was debated before the high court. The SCA is correct that Laru doesn't find application in this case.
>> And you've considered also that it doesn't find application.
>> I've considered it doesn't find application. where we do take issue with the Supreme Court of Appeals judgment and this is what that paragraph that you had read out to me goes to where we do take umbrage with the Supreme Court of Appeals judgment is where it seeks to elevate this legal conclusion rule into a golden rule forever in the day precluding a cause of action that may be triggered. What we say is that this is one of those type of cases whereby judicial decree by a court in the U.J matter. It precipitates a set of events that results in an impoverishment to my client. And we say that had the court not taken that restrictive approach which is a restrictive approach in violation of section 34, it would have reached a different conclusion altogether. But you would have realized as you do your as you did your preparations that if you were to put your argument on jurisdiction on the legal conclusions there will be a body of authorities that seems to be against that proposition and and and I'm not on the merits.
I'm I'm purely focusing on whether we have jurisdiction to hear this matter.
If if you are wrong or if the respondents are wrong or respondents wrong on on jurisdiction, you don't get into the merits.
So what I'm testing with you is whether this is a constitutional issue that requires adjudication by this course. And if it isn't then you don't come in. But if you come in through a limited or or or restrictive basis, we have to test that whether that restricted or limited basis grounds jurisdiction.
What is the point that grounds jurisdiction?
The points are three-fold Justice MPO.
The first point of course we say is the narrow interpretation by the Supreme Court of Appeal as you would see from paragraph 16 and 26 of their judgment in terms of which they seek to elevate the legal conclusion rule into a golden rule that doesn't permit you to have any other cause of action. That's our first basis. The second basis of course is we say that because of its incorrect interpretation of the law that has the consequence that it violates our rights under section 34 an archetype engagement of the constitutional court's jurisdiction. But when you read the the Mutoa judgment, then Jongi, the yellow star, the majority in Rad Maya, do you tick the box, Justice Mutoo? With respect, we do tick the box. When I read the majority in Radha, when I read Laru, when I read in Jangi, as well as when I read links, what was foremost in the minds of this court is the fact that they were determining an interpretation of section 12 of the prescription act, a piece of legislation which in and by itself has a preclusive effect as against your rights of access to court. But is it not a tried and tested principle that section 12 of the prescription act limits one's rights to access to courts and there's a rationale for section 12 is that there should not be endless and unmmerritorious litigation. That's why we have section 12 and that is why you are not attacking the the the the constit constit constitutionality of section 12 before us.
>> Justice Mtopo, none of the applicants in those other cases were attacking the constitutionality of section 12 either.
What they were attacking were the consequences of the manner in which section 12 had been interpreted by the courts. quo or by the Supreme Court of Appeal in those circumstances.
>> So let me let me not misunderstand you.
So are you attacking it or are you attacking the the manner in which section 12 has been applied? If you are taking the manner in which it has been applied by the SCA, then that would be a mislication of the law which does not engage our jurisdiction.
If it's a mislication of the law, it does not engage our jury. Then you don't get in.
>> Justice Mtopo, I I appreciate the distinction that you you make and that was a question that was asked of me right from the onset. I attack the misinterpretation by the Supreme Court of Appeal of a preclusive effect for purposes of section 34. That's the one part of my argument. The second part of my argument of course is that these novel set of facts does has never been engaged by the court and so we come in terms of section 1673b as well for those purposes.
>> No, I don't understand it. You must explain it. But if you say the first part, we've debated it. I don't want to belabor it. But if if you say these novel set of facts, this court does not deal with the facts. On the facts, you're out as well.
Now what is so novel about this facts that would that would require that we must deal with it.
The underlying rule is this court does not engage in matters of facts.
Justice Mtopo that that with respect is partly correct if there are the type of facts that arise before this court that have never been tested by other courts and that have further implications down the line for future courts. Then one's got to test the laws in relation to that. M you know you know an appallet court it's slow to interfere slow to adjudicate question of facts you know that's that's a rule you know we you don't venture there >> justice MPO I am not asking this court to interfere with the facts in fact I'm saying something quite different >> okay >> what I am saying is that the facts of this matter the novelty of the facts of this matter raises an issue of interest for this court as to how it would apply the prescription laws in relation to facts of that nature. I'm not for a moment suggesting that the facts have got to be interfered with.
>> Let's take the novey of the facts.
The novey of the facts is what you had been debating with my colleagues here to say.
The facts are that when the letter of cancellation was sent, right, h those were the minimum facts that were available to WMJ to say we may be having a problem. This is what Justice Chry and Justice Damuza conversed with you to say we are facing a problem.
And and at that time one would posit a question.
Did you have the necessary facts at that time to enable you to identify whether you would have a course of action against ATJ ATS? Indeed you would have.
Indeed you had but because you were in a lock step inquiry or maneuver that's why you did not excite the facts but when you go back to ascertain and say when did J acquire the facts Wam J knew as early as when the letter of Weber was sent that the lease has a problem and if the lease has a problem.
WMJ would have asked itself, we're talking about the novelty of the questions now would have asked itself if a court going forward were to find that against us and then you have to trace your step backwards. Tracing your step backwards.
Did we know at that time? Yes, we knew.
What is it that we wanted to know? We wanted to know the legal conclusion, right? The legal conclusion came through the the judgment of this court some seven years or eight years later. But when did you acquire knowledge back then? Now this is what Justice Chu was saying when he gave when she gave an example of of two motor vehicles involved in in an accident and then you responded positively that the injured person would have suffered harm. The injured person would know that I have suffered harm and would not be expected to adopt a supine attitude and say let me wait when the two protagonist have resolve their issues and then I'll decide whether I have a claim or not at that time when she suffered the harm that's when she had the bare minimum facts to institute action. So what is novel about that? So I'm I'm raising the novelty argument in the context of your submission that it should engage our jurisdiction.
>> I hope you follow you follow my example.
>> I I do follow the example. Yes. Thank you.
>> Well, uh >> it may be a bad or good example.
>> That's that's usually the difficulty with with all examples that all of us can be guilty of. Uh, Justice Mopo, the the fine point here is along the following lines. The novelty of this case is not, as I've mentioned, the linear relationship between two parties to a contract that were required to perform as a consequence of which an agreement had fallen through because let's call it for want of compliance with a suspensive condition. The novelty of this argument is you're dealing with multi-parties.
You're dealing with U.J J and ATS that were parties to a principal agreement.
You're dealing with WHAMJ that it becomes a party to a subsidiary agreement the session agreement and the event and that's what Makonia at 38 talks about the difficulty with sometimes ascertaining the difference between legal conclusions and facts.
the event that was that precipitated the loss, the harm in the example of the the person sitting in the in the vehicle of the taxi driver only occurred after dispossession and the dispossession itself only occurred after the U.Judgement.
>> But but Moto is the majority says differently. It says I've got here in my notes that the majority concluded that section 123 does not require knowledge of legal opinions or legal conclusions or the availability in law of the remedy. It this is what it says in paragraph 36 and it say the creditor must have knowledge of the facts not legal conclusions of law and yellow star at paragraph 37 used uh confirms it.
And Yellow Star goes on to say, "Failure to appreciate the legal consequences of the facts does not delay the commencements of prescription." In other words, you can't wait for the legal conclusion when you have the facts.
Please understand that my questions are focused on not on the merits even though there's an overlapping but on the jurisdiction whether in the light of these authorities which which confirms the legal position.
Is there any legal position that we should be engaging with because the law is settled?
>> Yes. Uh, Justice Mato, may I draw your attention to paragraph 38 of the judgment you've read from 36 and 37. 38 talks about the reference to knowledge in terms of section 123 raised.
Yes.
The reference to knowledge of facts in 123 raises the question of what question of fact is as distinct from for example a question of law or a value judgment.
The court, the majority there says the distinction between a question of fact and a question of law is not always easy to make. How difficult it is will vary from case to case. And then they refer in turn to the periscope judgment immediately after that. What our case really hangs on for purposes of invoking this court's jurisdiction is precisely that. It's precisely the difficult cases, the no novel cases, the novel facts under which there is a difficulty to distinguish between a question of fact and a question of law.
You see the problem why I'm raising this is uh we have been accused of sending different I mean as the court as as different as as sending different signals to the litigants to a point where they are confused as to what in what is it that actually engages our jurisdiction. But if the law has been settled, we should send that message to say what the applicant here inviting us to do has long been settled.
We can't or we can on this basis and the basis that I and you have debated upon. I I have not seen it uh in my mind formulating a a to use your word crystallizing to to to to warrant this courts having jurisdiction.
Justice Mtopo in respect of your first concern pertaining to the signals that of course the court sends as far back as Motoa already that was some 8 years ago the law was settled in so far as prescription was concerned there was no difficulty with it but it engaged the court's jurisdiction for a simple reason it engaged the court's jurisdiction because of those peculiar facts which had arisen in the context of the interpretation of uh the the prescription act and the court tells us that in it doesn't tell us in specific >> sorry to interrupt you but sitting in your chambers you would ask far back we've had MOA we've had Yellow Star we've had the fluxmen also and and and the constitutional court has said in in the WMJ matter there's jurisdiction it has jurisdiction What what is it that this court says gives it a distinctive jurisdiction in this case? You're sitting in your chambers. You'd ask you're preparing for another matter. Now the question would be is there a proper basis made for jurisdiction or is it on case by case basis that can't be right.
The the short answer, Justice MPO, sitting in my chambers is that I would look at the various paragraphs of these judgments and see whether there is a constitutional point that has been implicated like they have in these judgments. For example, paragraph nine of makonia tells you spec specifically why the jurisdiction of this court is engaged. Our case is no different from the perspective that a misinterpretation of the laws of prescription implicates this court's jurisdiction because of the deprivation of our section 34 right. As I've said, I've made that submission before. Of course, that is our first basis. Our second basis, of course, is the novelty of this facts in relation to the preclusive prescription act.
And you would say you enjoy prospects and and also the interest of justice require that we must hear this matter.
Justice Mtopo, if my argument on possession is or dispossession is correct and it's linked to the elements of enrichment and impoverishment, then I submit that we do enjoy reasonable prospects of success for purposes of engaging this court's jurisdiction.
>> Just hold on. I'm not sure if that's what you put forward in your in your application for leave to appeal.
Would it be would be the one possibly there is there is I see it here. Sorry.
No.
to assist you justice mtopo we deal with it from paragraph 60h sorry >> and then you don't rely on rad I was wrong in rad you can't rely on >> no >> the passage the passage in ra to which the majority carefully thought it should not be commented on I was wrong there you can't rely on it I was a minority >> now I I don't rely justice I life on your judgment, your minority judgment in Radamea >> where we do make reference to Radaya particularly in our written submissions is about the absurdity in bringing two contradictory causes of action. I know that was a different case and I know that had to deal with specific performance and a subsequent damages cla claim but it's it's really by parity of reasoning of how litigants shouldn't contradict themselves in particular proceedings which they bring before the court >> but it's not relevant in these proceedings >> not the judgment itself you're quite correct it was just an extract for purposes of advancing some reasoning >> let me conclude.
Are you submitting that despite three warnings, the three warnings been the letter, the judgment by Victor J and the judgment by the full court.
uh still you could not do anything and you had to wait for the legal conclusion that came in on the 11th of June 2021.
If a litigant were to say, "Because I was locked up in litigation uh trying to challenge the validity of the cancellation of of the lease.
uh you must construe my application or my case to be that despite that letter, despite Victor's Judgment, despite the full court judgment, I could still sit pretty and say I'm not doing anything. I will wait. And I waited. And what does what is the train that you're waiting for? I was waiting for the determination that the lease was valid or not when I had been advised right in the beginning to say it's void up in you.
So, could you wait for that bus when there were three buses that went by and wait for the big bus?
>> Was it worth the wait?
>> Justice Mtopo, with the greatest of respect, that weight was necessary. One's got to take the full conspectus. I mean, if if we're going to unravel facts to see what ought to have happened in a hypothetical situation, we've got to take the alternative hypothesis into account as well. And let's take the alternative hypothesis into account.
You've mentioned three warnings, the letter, the high court judgment, the full court judgment. The SCA found otherwise. It could have ended at the SCA, but it didn't. It came all the way to this court. No, it came came all the way to this court because we said it must come here.
>> It means nothing.
>> No, indeed. But but if you if you allow me to to develop my submission, >> the important point here is that the cancellation of the primary lease was in a state of flux. Let's play this out. Assuming my client decided to give heed not to a factual event that actually resulted in its dispossession, but he decided to give heed to a warning, a fire shot in the air. And he decided to turn to ATS and say to ATS, well, I want out of this agreement simply because uh there was a warning shot that was fired. And let's assume that ATS in those circumstances said very well I consider your conduct a repudiation of my agreement and I'm going to exercise my rights pursuant to that repudiation and let's assume that in those circumstances ATS was successful in one of those courts.
>> No. So the ATS would say what to to to your line >> that I'm going to sue you consequent upon you repudiating the session agreement because I decide to walk out.
No, but but your line would have a perfect defense to say U.J has now said you could not uh transfer more rights than you actually have.
>> No, no, but Justice Mtopo, this is the proposition I'm testing. if you allow me to develop it fully.
Assuming that my client at the first firing shot decided that it's walking away from the session agreement and assuming that ATS was then ultimately successful in resisting the cancellation.
What then?
If ATS was successful in resisting the cancellation, my client would have had to incur the damages of a repudiated contract and of course unnecessarily so.
It would have no defense to that repudiation because a firing shot is not a defense. What is a defense is its ultimate dispossession.
>> I can take it no further.
Mr. Babia just on the point of you've canvased it slightly with judge uh Majit is the factual dispossession really the impoverishment when in fact the enrichment by ATS of the 6.5 million rand is that not really where the enrichment arises justice savage for as long as ATS provides possession to WHAMJ. It's not enriched.
So there is a correspondence in time or corresponding time for purposes of the enrichment as well as the impoverishment. The main feature of course is the dispossession because the moment of the dispossession means that RHAMJ has neither its money nor its property and that means that ATS because it is unable to give possession of the property that it had undertaken to do originally is sitting with money that it should not be sitting with. So it >> correspond but if you accept that if if ATS is enriched by 6 million rand and WJ is uh impoverished by six million rand then it turns on the money that the claim in fact is a money claim. It relates to when the payment of an of the when one party was enriched and the other was impoverished then it is in fact not the the uh factual dispossession which around which your claim turns. It's it's in fact the payment of the funds in consequence of of the session.
>> Justice Savage, but you don't know when the impoverishment arises until there is the dispossession >> and then just in relation to the session at what at what stage does the did the fact arise that the session was void abonicio? When was that fact when did that fact materialize?
That fact was a consequence of the U.J.
judgment. As I had submitted earlier on, the U.J. judgment didn't deal directly with the session itself. It dealt with the primary lease agreement and it dealt with the three questions in respect of the primary lease agreement. Delector's persona if yes, repudiation if yes, effectual cancellation. Of course, the consequence of the effectual cancellation would mean that the session could not withstand. But can is that in the nature of an abonicio uh invalidation? It was from its commencement invalid. So is that not the date on which is it not in the date on which can you really say it's the date on which the court confirmed that the session was void abonio? That is the fact that makes the session void abonicio.
Justice Savage, as as I've said that in terms of the general principles of enrichment law, I accept that uh the rule is and it's not an immutable rule because one's got to look at the facts that had arisen, but the rule is that you've got to look at the date of the agreement being declared, not declared, the date of the agreement having been concluded, and it's the date of the undue transfer that triggers prescription ordinarily.
But of course, as I've even previously submitted, it's not the tail wagging the head. One's got to ask for purposes of prescription when is the claim enforceable. Is it always enforceable in terms of this immutable principle or is it enforceable when you have all the facts necessary for you to institute proceedings? Like for instance, in our case, which is a central feature of our case, the harm or the loss. So, so do you rely on 121 or 123?
>> Justice Mjid quite correctly pointed out that they all have to be read together and I agree and uh I agree that of course it was wrong for both courts to have taken an approach that were were different from from each other. Uh neither were correct.
But in the context of this case, before you even get to 123, you've got to ask yourself, is there a debt that commences the running of prescription? So, if we're talking about it in terms of 121 and 123 language, then you start off with 121 and you say, is there a debt capable of commencing to run for purposes of prescription? You answer that question by reference to whether there is a claim that's immediately enforcable.
If there's no debt at that point in time, you don't even engage the 123 debate.
>> But but you so so your argument is in in essence that you were not aware of the fact that the session was void abonia.
That fact did not exist as at 2012.
>> Justice Savage, my argument is somewhat different. It's not about awareness of the facts. So in other words, the respondents raised the 123 argument in when one ought to have been aware of things. My argument is slightly different. My argument is that there was no debt until such time as I had suffered a loss.
>> Thank you, Mr. Baba. Mayor, can I take you back to jurisdiction?
You mentioned three points when you were conversing it with Justice MPO. The last one of which was relating to novel facts pertaining to this case. But that would not be a constitutional issue. Agree with that.
Justice Nuku, I haven't come across any case authorities and I've asked my colleagues on to my left as well to take a look at it in advance of this hearing where the constitutional court has dealt with prescription in the context of an enrichment claim on these particular facts. And >> sorry to interrupt you. My my question is slightly different uh because this court either has jurisdiction because it's a constitutional issue or it's an arguable point of law. On my reading of your pleadings, you solely rely on the constitutional jurisdiction. Am I correct?
>> On our application for leave to appeal, if I may take you there, uh Justice Nooker, >> I have We deal with it from paragraph 69 all the way to paragraph 78.
Just just give me a sec. I'm looking at paragraph you plead jurisdiction 69 to 71.
Three paragraphs.
>> Yes. And then we deal with the interest of justice >> in section 69 you put it 167 3B Roman uh uh Roman numeral one paragraph 70 we go on still in constitutional jurisdiction 71 still the same and it ends there and then you go on to interest of justice.
So my my my my question to you is it does not appear to me that we have pleaded the alternative basis upon which this court has jurisdiction. Am I correct?
>> You're talking about the arguable point of law. You are correct, Justice Ner.
>> So would that argument so how does that argument about the novelty of facts fit in within the constitutional jurisdiction of this court?
>> We deal with it under the rubric of the interest of justice.
And then you you then mentioned two other factors. You said the narrow interpretation that was a that the SCA did and you mentioned paragraph 16. I couldn't hear the other paragraph >> 26.
>> 26.
I looked at paragraph 26. It seems to me the the sea just mentions the authorities that have dealt with the issue of uh when does the debt arise without pronouncing itself? So what's the criticism there? What's the interpretation?
>> So when when one reads the entirety of the judgment, so I rely particularly on the last par sorry the last sentence of paragraph 26. No, no. I'm I'm still at 60.
>> Oh, I beg your pardon?
>> Because it says that the question as to when begins to run has been grappled with in a number of cases in the past by our courts. The golden link and then it continues and then it quotes a whole paragraph there. I don't see where it speaks.
It gives meaning to what you say it has done.
>> Justice, >> I was just trying to understand.
>> Indeed. I I appreciate your question.
So, paragraph 16, you're quite correct.
The SCA what it does is that it talks about the golden link in numerous decisions. It mentions those decisions and then of course it conducts an analysis all the way going through to uh paragraph 18 which talk about these facts. But at paragraph 16, it does no more than just put them there.
>> So I I tie in paragraph 16 with 26.
You're quite correct. Paragraph 16 on its own is not what my criticism is.
You're quite right.
>> All right. And then 26.
What do you say? Where is interpretation there? 26. So, Justice Nuke, if you take particularly, my emphasis is on the last sentence in paragraph 26.
>> Legal conclusions from a plethora of judgments of this court. As a general rule, legal conclusions do not constitute facts and knowledge of legal con of legal conclusion is not required by a creditor. There's something wrong with that sentence, but I think we know what it means. It's this they they are conveying that it is accepted as a general principle that legal conclusions do not constitute facts that are required for the purpose of bleeding.
Isn't that this the correct legal position?
>> It's correct.
>> What's the criticism? It's it's correct as a matter of general principle but it's not correct as a matter of an absolute principle. So in other words what I'm saying is that you can't simply say >> but they say there as a general sorry to interrupt they say as a general rule it ra that's that's how it raised there from a plethora of of judgments of the Scott as a general rule and then they leave it there.
That's that's not what they did though, Justice Nuke, because what they ultimately did is that they've taken that general rule in its absolute terms and decided that because there was a judicial degree, a decree that triggered uh a certain set of facts, you simply could not rely upon the judicial decree.
What we say is something different. What we say is the following.
>> So, I don't quite understand the first part. Before we move to the second, just break it down for me. Okay, Justice Nuke, what the Supreme Court of Appeal would have effectively is that any legal decision is a legal conclusion and you can't utilize that as a fact for purposes of precipitating a cause of action at the later stage.
>> But that seems to be the general rule, isn't it?
>> That's the general rule, but it's not an absolute rule. And it can never be an absolute rule because that pervades the essence of what our prescription legislation requires of us to do. We're required to take into account facts and there are cases when the distinction between facts and conclusions of law may be blurred and this is one of those cases.
>> But I thought you abandoned that uh that lie because you said this is not the Lar type of case. So you no longer >> that's that's true. I I I've never advanced the Laroo type of line to start off with to abandon it. I've always accepted this is not a Laroo case because we weren't being advised by lawyers. Uh we were business partners with someone for want of a better term.
So I've always >> but essentially what what I I was trying to understand from you I looked at paragraph 16. All I saw there was a collation of judgments that deal with that those principles. And then I look at paragraph 23. It concludes by stating the general rule. So I don't understand how that then becomes a narrow interpretation which should engage this court's jurisdiction when the Supreme Court of Appeal merely states what the it understands the legal position to be.
But we can leave that and then you say the other third one is the incorrect interpretation of the prescription. Am I right?
But now I am looking at the first paragraph of the judgment of this court of appeal. It identified three issues that it had to deal with. The first it had to determine when prescription began to run.
Would you agree with me that that's not an that does not require the interpretation of the prescription prescription act but what it requires is the application of the prescription act to the particular facts that the court is confronted with.
Is that fair >> Justice Nuku? Not completely. Ordinarily that would be fair but that requires an interpretation first before you apply the facts to the prescription act >> because sometimes I read judgments they say this case is concerned with the interpretation of this particular provision then you know that that's the interpretation but here it suggests to me that all that was required was to to apply the provisions of this act as interpreted to the particular effects that were presented to the Justice Nuku, it required an interpretation of the prescription act first prior to applying the facts to that case. So the interior question was its interpretation. What followed was its application based on its interpretation.
>> Thank you.
>> We'll take uh the agendment for 15 minutes. Come back at 5 12.
What if they want to move away from the argument?
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