Greater Tzaneen Municipality vs. Bravospan

South Africa

07.11.2022

Civil

The party who raises a plea of prescription bears the onus of proof

Present is an appeal against the judgment of the High Court, granting the Respondent’s enrichment claim against the Appellant in an amount to be determined. The appeal is with the leave of the high court. The Appellant, Greater Tzaneen Municipality (the municipality) and the Respondent, concluded a Service Level Agreement (SLA) on 20 November 2013, pursuant to a competitive tender process. In terms of the SLA, Bravospan would render security services to the municipality for a period of 12 months from 1 November 2013 to 31 October 2014.

It is trite that, the party who raises a plea of prescription bears the onus of proof. As to the issue of prescription, the municipality failed to prove the date on which prescription commenced. In respect of the notice in terms of Section 3(2) of the Institution of Legal Proceedings against Certain Organs of State Act, 2002, counsel for the municipality rightly conceded that the claim for unjust enrichment was not a ‘debt’ as defined in Section (1) of the Act because it was not a claim for damages. Therefore, the absence of a notice in terms of the Act did not bar the enrichment claim. Makgoba DJP’s order granting Bravospan’s claim for unjust enrichment was not sustainable in law as the law is yet to recognise a general enrichment action.

However, on the facts, it would be manifestly unjust for Bravospan to be afforded no compensation for the services that it had rendered to the municipality. It held that Bravospan should, in the exceptional circumstances of this case, be afforded compensation for the services rendered under the extension agreement as a just and equitable remedy under Section 172(1)(b) of the Constitution.

The Plaintiff is entitled to compensation for the services rendered to the Defendant during the period from 1 November 2014 to 31 October 2016 as a just and equitable remedy under Section 172(1)(b) of the Constitution. The matter is referred back to the high court to determine the quantum of that compensation in accordance with the applicable law.

Tags : Enrichment claim Grant Legality

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