About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2008
>>
[2008] ZAFSHC 39
|
|
Griesel v Liebenberg (201/2007) [2008] ZAFSHC 39 (24 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 201/2007
In
the case between:
ROBIN
GERALDINE GRIESEL
and
LENRé
LIEBENBERG
CORAM:
H.M. MUSI,
JP
et
HANCKE,
J
JUDGMENT:
H.M. MUSI,
JP
_____________________________________________________
HEARD
ON:
10 MARCH
2008
_____________________________________________________
DELIVERED
ON:
24 APRIL
2008
[1]
This is an appeal from a judgment of the Magistrate’s Court,
Welkom.
The
appellant had instituted action against
the
respondent claiming delivery of a horse called Honey
Girl,
which had been in the respondent’s possession. Prior
to
the institution of action, the appellant had on two
occasions
removed such horse from the respondent’s
possession
without the latter’s consent. On each occasion
the
respondent had successfully applied for a
mandament
van
spolie
and
the horse duly returned to her.
Subsequently
the appellant obtained an order in terms of
which
the horse was placed in the custody of the sheriff
pending
institution of an action for delivery thereof (
rei
vindication
).
The respondent defended the action and filed
a
counterclaim wherein she averred that the removal of the
horse
by the appellant had been unlawful and that it had
caused
her shock resulting in post traumatic stress. She
claimed
damages in the amount of R75 000,00.
[2]
The Magistrate was satisfied that the appellant was the
owner
of the horse, that the respondent had no right to
keep
it and granted the appellant’s claim for delivery
thereof.
However, the Magistrate also allowed the
respondent’s
counterclaim for damages but for a reduced
amount
of R25 000,00. He also ordered that the appellant
pay
the stable costs of the sheriff and that each party pay
their
own costs of suit.
[3]
The appeal was directed at only two aspects of the
judgment
of the Magistrate’s Court: the award of damages
to
the respondent and the order that the appellant was
liable
for the stable costs. The respondent does not
3
oppose
the appeal and gave notice that she will obite by
the
decision of the court.
[4]
Mr. Grobler who argued the appeal on behalf of the
appellant
conceded, correctly in my view, that the appeal
against
the order relating to the stable costs had no merit
and
abandoned that part of the appeal.
[5]
This appeal raises a novel but the important legal question
of
whether an action for damages lies against the owner of
property
who resorts to self-help in order to retrieve his/her
property
from an unlawful possessor. Put otherwise, does
an
act of spoliation constitute a delict entitling the spoliatus
to
sue the spoliator for damages? Counsel for the
appellant
indicated that he could find no direct authority on
the
point. He submitted, however, that spoliation does not
constitute
a delict for the lack of one important element of
delict,
namely, wrongfulness. He referred to authority
dealing
with the criteria for wrongfulness in delict.
[6]
Counsel also cited a passage in the matter of
NTAI
&
OTHERS
v VEREENIGING TOWN COUNCIL AND
ANOTHER
1953 (4) SA
579
AD at 588 which would seem
to
give an indication of what the common law position is.
There
Van den Heever JA stated the following:
“
But
it does not follow, as Mr. Lakier seemed to assume, that
self-help
exercised by an owner to recover the possession of
property
unlawfully withheld from him is in itself an actionable
wrong
automatically entitling the person dispossessed to
damages.
It is difficult to imagine how a lessee who unlawfully
remains
in occupation after the termination of the lease can
sue
the evicting landlord for general damages, since I am
inclined
to think, although it is not necessary for the purposes
of
this case to decide the point, that he is himself a spoliator
and
one would have thought that the wrongs of the litigants
in
pari
delicto
would
cancel each other by compensation. If the
lessee
after termination of the lease remains in possession
without
lawful cause, his conduct amounts to an unlawful
dejectio
of
the lessor (D.43.16.12 and 18; Glück, 19.2, para.
1061
after note 47; Voet (19.2.32) calls him an
invasor
alienae
possesionis).
”
[9]
Now, the
maxim
in pari delicto potior condictio defendentis
belongs
to the law of contract and has no application in the
law
of delict. As the above passage makes clear, the
statement
that the wrongful conduct of the litigants
in
pari
delicto
would
cancel each other was made obiter.
However,
the passage is relevant and significant in
highlighting
the fact that the conduct of the
spoliator
in
particular
is wrongful. The
rationale
for
holding the
spoliator’s
conduct
to be wrongful is to be found in the
principles
underlying the possessory remedy of
mandament
van spolie
.
The principles were stated by
Innes
CJ in
NINO BONINO v DE LANGE
1906
TS 120
at
122
as follows:
“
It
is a fundamental principle that no man is allowed to take the
law
into his own hands, no one is permitted to dispossess
another
forcibly or wrongfully and against his consent of the
possession
of property, whether movable or immovable. If he
does
so, the Court will summarily restore the
status
quo ante,
and
will do that as a preliminary to any inquiry or investigation
into
the merits of the dispute.”
See
THE ADMINISTRATOR, CAPE & ANOTHER v
NCHWA
& OTHERS
1990
(1) SA 705
AD at 717 H – J.
The
law prohibits people from taking the law into their own
hands
in order to enforce their rights and there are sound
policy
considerations for this. In the premises the view that
spoliation
is not a delict for want of wrongfulness cannot be
correct.
[8]
The judgment in
Ntai
is
significant in another respect. It
makes
it clear that the common law does not recognise a
delictual
claim for general damages based on an act of
spoliation.
In the passages following the one quoted
above,
Van den Heever, JA made it clear that the remedy
available
to a
spoliatus
is
the
mandament
van spolie
and
that
no claim for general damages lies in respect of a “tort”.
The
reason why a delictual action for damages does not lie
is
possibly because public policy considerations dictate that
the
spoliatus
should
not be allowed to benefit from his/her
unlawful
activity in the same way that the law does not
allow
anybody to use illegal means in order to enforce
his/her
right. The
mandament
van spolie
is
meant merely
to
cancel out the initial unlawful conduct of the
spoliator
but
confers
no rights on the
spoliatus
.
[9]
The position of a
spoliatus
who
claims general damages
arising
purely from an act of spoliation should not be
confused
with a case where a
spoliator
causes
collateral
damage
in the course of retrieving his/her property. If, for
instance,
A has stolen B’s TV set and in an attempt to
retrieve
it B breaks the door of A’s locked house, surely B
would
have a claim for patrimonial damages against B. Or
B
assaults A in the process of retrieving the TV. Surely A
would
be entitled to sue for general damages for pain and
suffering.
[10]
In my view, a juridical explanation why an act of spoliation
per
se
cannot
give rise to delictual liability is to be found in
the
absence of fault or causation or both in any given
situation
(I am referring here not to factual causation but to
legal
causation). For the purposes of this appeal it suffices
to
deal only with fault. In the instant case there can be no
question
of negligence. The applicable form of fault in
issue
would be intention. The question is whether the
spoliator
had
the intention to cause harm.
Neethling,
Potgieter
& Visser, Law of Delict, 5
th
Edition
at
114 state
that
the necessary intention is not present if the actor lacks
a
“consciousness of wrongfulness”.
In
other words, if the
spoliator
is
not aware that his/her
conduct
is wrongful, fault is absent.
[11]
Now by far the majority of the population in our country are
laymen
and laywomen and most people in the position of
the
appellant could hardly be expected to be aware that it is
wrong
to retrieve one’s property from, say, a thief, without
first
are going through the Courts. At any rate, the onus
was
on the respondent
in
casu
to
prove all the elements of
delict.
In my view, that onus was not discharged in the
instant
case.
[12]
I hold therefore that the Magistrate was wrong in awarding
damages
to the respondent. Accordingly the appeal is
allowed
with costs. The magistrate’s order is set aside and
substituted
with the following order:
“
1.
The plaintiff’s main claim succeeds with costs.
2.
The plaintiff is liable for the stable costs of ‘Honey Girl’
form
the date the sheriff removed the horse from the
defendant’s
possession.
3.
The defendant’s counterclaim is dismissed with costs.”
_____________
H.M.
MUSI, JP
I
agree.
_______________
S.
P. B. HANCKE, J
On
behalf of the appellant: Adv. S. Grobler
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Attorney O. J. van Schalkwyk
Instructed
by:
Lovius
Block
BLOEMFONTEIN