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[2000] ZASCA 190
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Sheriff, Pretoria East v Meevis (286/98) [2000] ZASCA 190; [2001] 1 All SA 10 (A); 2001 (3) SA 454 (SCA) (29 September 2000)
REPORTABLE
Case number: 286/98
IN THE SUPREME COURT
OF APPEAL OF
SOUTH AFRICA
P
COETZEE (SHERIFF, PRETORIA EAST) APPELLANT
and
F
E MEEVIS
RESPONDENT
CORAM
: VAN
HEERDEN DCJ, SMALBERGER, VIVIER, ZULMAN JJA and MELUNSKY AJA
DATE OF
HEARING
: 18
SEPTEMBER 2000
DELIVERY DATE
: 29
SEPTEMBER 2000
Unlawful attachment -
sheriff’s liability.
____________________________________________________________
JUDGMENT
____________________________________________________________
SMALBERGER JA
SMALBERGER JA:
[1]
The
appellant is the duly appointed sheriff for the district of Pretoria
East.
He appeals, with leave of
the Chief Justice, against a finding by De Villiers J in the
Transvaal Provincial
Division that he is liable to compensate the respondent (the
plaintiff in the court
a
quo
) for the damage she has
suffered as a result of his
unlawful attachment of
certain jewellery belonging to her. The judgment of the
court
a
quo
is reported as
Meevis
v Sheriff, Pretoria East
1999(2) SA 389 (T).
[2]
In
June 1990 the respondent and one Smithers, a British national
(“Smithers”), were living together in Pretoria. Action
had been instituted against Smithers in the Transvaal Provincial
Division by a certain Mrs Hutchinson. He was arrested
tamquam
suspectus de fuga
. In
order to secure his release the respondent, on 5 June 1990, gave a
written undertaking to one Vlok, the acting sheriff of
Pretoria, in
his official capacity, to furnish him with security in the sum of R12
500,00 for the due appearance of Smithers.
This was done in terms of
rule 9(8) of the Uniform Rules of Court. The security was in the
form of jewellery comprising two bracelets
and a diamond and emerald
pendant (“the jewellery”). The jewellery was handed over
voluntarily to Mr Vlok by the respondent
at the common residence
which she shared with Smithers and accepted by him for safekeeping.
[3]
The
undertaking, after providing that:
“
I . . . hereby
undertake to furnish . . . security in the sum of R12 500,00 . . . in
jewellery . . . on behalf of respondent [Smithers]”
continues
“
Such security
shall act as a guarantee for the due appearance by the said
respondent until finalisation of the aforesaid action
and shall
ensure his appearance at any or all times of hearing of that action.
I agree further that such
security shall be given by me on behalf of and in the name of the
respondent and shall be forfeited to
the applicant should respondent
fail to appear as aforesaid.”
[4]
On
27 June 1990 and 5 July 1990 warrants of execution were issued
against Smithers for judgments in the sums of R2644,26 and R87
000,00
respectively, plus costs. Service of the warrants on Smithers on 7
July 1990 resulted in a returns of
nulla
bona
. On 6 August 1990 the
jewellery was attached in execution pursuant to a warrant. The sale
in execution of the jewellery was advertised
in two local newspapers
to take place on 9 October 1990. The sale, however, was cancelled
before that date but the acting sheriff
was instructed by the
executing creditor’s (Mrs Hutchinson’s) attorneys to keep
the jewellery under attachment.
[5]
Following
upon the delimitation of the areas of jurisdiction of the sheriffs in
Pretoria on 1 December 1990 the appellant assumed
responsibility for
the further conduct of the matter and the relevant file, together
with the jewellery, was handed over to him.
He was instructed by Mrs
Hutchinson’s attorneys to keep the attached jewellery in
safekeeping pending further instructions.
[6]
On
21 November 1991 judgment was given against Smithers. (The judgment
is reported as
Hutchinson v
Hylton Holdings and Another
1993(2) SA 405 (T).) On the same day the appellant was furnished
with a further warrant of execution by Mrs Hutchinson’s
attorneys and was instructed by them in their covering letter “to
attach immediately the jewellery held by yourselves as
security . .
.” The appellant duly proceeded to do so, the attachment
taking place at his office where the jewellery was
being held. In
his return of service the appellant refers to the jewellery “which
[was] held by me as security.”
It is apparent, having regard
to the letter and subsequent returns of service by the appellant,
that he must have been aware of
the judgment on 21 November 1991 (or
at the latest 27 November 1991).
[7]
On
18 December 1991 the respondent filed an affidavit with the appellant
in which she confirmed that the jewellery belonged to
her and was
given as security to secure Smithers’s appearance in court.
She went on to add that “at no time was my
jewellery intended
to guarantee payment of Supreme Court awarded damages or costs.”
This occurred after Smithers had made
a number of calls to the
appellant’s office concerning the safekeeping of the
respondent’s jewellery.
[8]
On
6 January 1992 Smithers’s attorneys wrote to the appellant
confirming that an affidavit had been filed by the respondent.
The
letter continues:
“
Ons versoek u
vriendelik om intussen voort te gaan met ‘n tussenpleitgeding
ten einde hierdie aspek tot finaliteit te bring.
Ons het egter geen
beswaar indien hierdie tussenpleitgeding oorgehou word hangende die
appèl hierin nie”.
The appeal referred to
was presumably that noted by Smithers against the judgment given
against him.
[9]
No
letter of demand for the return of the jewellery was sent, nor were
any further steps taken to secure their return, before 16
January
1992. On that day an armed robbery took place at the appellant’s
offices. Amongst the items taken was the jewellery,
which has not
since been recovered. No fault attached to the appellant or any
member of his staff in relation to the robbery.
On the day following
the robbery formal demand for the return of the jewellery was made
for the first time.
[10]
The
respondent’s main claim was based on the appellant having been
in mora
in regard to the return of the jewellery and thus liable for the loss
she sustained. De Villiers J held that he was not
in
mora
(at 392 C-F). This
finding was not raised or challenged on appeal. There is no need to
express any view as to its correctness
and I specifically refrain
from doing so. The learned judge, however, found for the respondent
on her alternative claim based
on the wrongful attachment of the
jewellery on 21 November 1991. Central to this finding was the
reliance he placed on the decision
in
Weeks
and Another v Amalgamated Agencies, Ltd
1920 AD 218.
[11]
Weeks
’s
case was decided by a court presided over by Innes CJ. Two
concurring judgments were delivered, the one by De Villiers
AJA and
the other by Juta AJA. The remaining members of the court concurred
in the latter judgment. Both judgments had comprehensive
regard to
Roman-Dutch authority. In the course of his judgment Juta AJA said
the following (at 238):
“
Applying the
principles of the Roman-Dutch law, and the Statute Law (Act 32 of
1917), the position of a Messenger in attaching the
goods of a third
person seems clear. [1] If he attaches them while in the possession
of the judgment debtor they are presumed to
belong to the latter, and
the Messenger is not liable to the owner for such attachment. [2] If
on attachment or thereafter before
they are sold, they are claimed by
a third person, his duty is to take out an interpleader summons. If
he neglects to do so he
is answerable to the owner of the goods. [3]
If he attaches goods not in the possession of the judgment debtor
which belong to
a third person, he does so at his own risk, and is
answerable to the true owner. No hardship is imposed on the
Messenger because
by Order 25, section 6 of Act 32 of 1917, if he is
in doubt as to the validity of any attachment or contemplated
attachment, he
may require that the party suing out the process shall
give security to indemnify him.”
(Numbered square
brackets inserted by me.)
[12]
De
Villiers AJA, referring to the position of the messenger had,
inter
alia
, the following to say
(at 226):
“
He is therefore
not entitled to attach the property of third parties. If he does so
he acts outside the limits of his functions
and is liable. . . .
[T]he authorities are unanimous that the Messenger is liable if he
attaches the goods of third parties, whether
there be negligence in
the ordinary sense on his part or not.
Only in one case is a
Messenger entitled to attach the property of a third party, and that
is when the property is found in the
possession of the debtor.”
[13]
Weeks
’s
case has since been followed in a number of decisions (see, eg,
Smit
v Van Wyk
1966(3) SA 210
(T) (per Marais J) and
Trust
Bank van Afrika, Bpk v Geregsbode, Middelburg
1966(3) 391 (T) (per Trollip and Colman JJ). It has also received
the approval of academic writers (see, eg,
Neethling’s
Law of Personality
at
202/3). Its correctness was not challenged on appeal before us.
[14]
The
extract from the judgment of Juta AJA in para
[11]
postulates three situations which I numbered for convenience. In the
present matter we are dealing with the third situation -
the
attachment of goods not in the possession of the judgment debtor (in
casu
Smithers) which belongs to a third person (in
casu
the respondent). Where a messenger (or sheriff) so acts, he does so
at his own risk and must answer to the true owner for any
loss
suffered. It is no defence that he believed the attachment to be
lawful as consciousness on his part of the wrongful character
of his
act is not a requirement for liability (
Minister
of Justice v Hofmeyr
1993(3) SA 131 (A) at 154 H-J;
Ramsay
v Minister van Polisie en Andere
1981(4) SA 802 (A) at 818 E- 819C).
[15]
It
was common cause on appeal that the jewellery belonged to the
respondent. The circumstances in which the appellant’s
predecessor was placed in possession of the jewellery were such that
he must have known that it belonged to the respondent, a fact
which
would also have become known to the appellant when the relevant file
and jewellery were later handed over to him. The jewellery
was never
attached while in the possession of Smithers. Nor was it attached at
the common residence of Smithers and the respondent.
As previously
mentioned, it was handed over at their residence to the appellant’s
predecessor as security on behalf of Smithers
for his due appearance
in the proceedings instituted against him. That the jewellery was
the respondent’s was apparent both
from her conduct and the
terms of the undertaking she gave (“I . . . hereby undertake;
security . . . given by me.”)
The nature of the jewellery
per
se
strongly suggested that
it was hers. (That it was her property was a position she maintained
steadfastly throughout.) No one
else ever laid claim to the
jewellery. Nor did later events detract from the fact that the
jewellery was the respondent’s
property which was being held as
security.
[16]
There
was no lawful basis for the attachment of the jewellery on 6 August
1990 which preceded the aborted attempt to sell the jewellery
in
execution. When judgment was given against Smithers on 21 November
1991, the jewellery was still being held by the appellant
as
security. As provided for in rule 9(8), the giving of adequate
security is intended to ensure “that the defendant will
appear
according to the exigency of the said writ, and will abide the
judgment of the court thereon.” The Afrikaans word
used for
“abide” in the sub-rule is “afwag”. On a
proper construction of rule 9(8) security is only required
until the
time that judgment is given. When that occurs the purpose it was
designed to achieve ceases. While the rule is silent
on this score,
as a matter of law and logic a third party who has provided security
would immediately thereafter be entitled to
the return thereof.
Security provided by a third party under rule 9 is not intended to
satisfy the judgment debt (
cf
Herbstein and Van Winsen:
The
Civil Practice of the Supreme Court of South Africa
:
4
th
ed at 109). This approach would seem to be in accordance with rule
9(15) which deals with the situation where a defendant has
been
arrested and not yet released. It provides that “[i]f in any
such proceedings judgement is given against the defendant,
he shall
be entitled to his release.” (See also rule 9(13).) If
judgment operates to release the defendant, it should likewise
operate to release any security put up by a third party to ensure the
defendant’s attendance (
cf
Alliance Corporation Ltd v
Blogg
[1999] 3 All SA 262
(W) at 265 h - 266 c). It is noteworthy that the appellant admitted
the allegation made by the respondent in para 6 of her particulars
of
claim that when judgment was given on 21 November 1991 “the
undertaking given by [the respondent] . . . was duly complied
with.”
[17]
When
the appellant purported to attach the jewellery again on 21 November
1991 the respondent was entitled to its return. It was
attached in
part satisfaction of Smithers’s judgment debt. As I have
found, the appellant (who chose not to give evidence)
must have been
aware of the fact that the jewellery belonged to the respondent. It
was not attached while in Smithers’s
possession nor had it
previously come from his possession. It matters not that when the
attachment took place the jewellery was
in the appellant’s
safekeeping. The lawfulness of the appellant’s conduct must be
judged in relation to whom the jewellery
belonged and where it
originally came from. The position which pertained falls squarely
within the third situation postulated
in
Weeks
’s
case. In the circumstances the attachment was unlawful.
[18]
There
remains to be considered whether the appellant’s wrongful
conduct was the cause of whatever damage the respondent has
suffered
as a result of the loss of the jewellery (the quantum of her claim
having been ordered to stand over for later determination).
Causation involves two distinct inquiries. They were formulated by
Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley
1990(1) SA 680 (A) at 700 E-I as follows:
“
The first is a
factual one and relates to the question as to whether the defendant’s
wrongful act was a cause of the plaintiff’s
loss. This has
been referred to as ‘factual causation’. The enquiry as
to factual causation is generally conducted
by applying the so-called
‘but-for’ test, which is designed to determine whether a
postulated cause can be identified
as a
causa
sine qua non
of the loss in
question. . . . [D]emonstration that the wrongful act was a
causa
sine qua non
of the loss
does not necessarily result in legal liability. The second enquiry
then arises, viz whether the wrongful act is linked
sufficiently
closely or directly to the loss for legal liability to ensue or
whether, as it is said, the loss is too remote. This
is basically a
juridical problem in the solution of which considerations of policy
may play a part. This is sometimes called ‘legal
causation’.”
(See too
Groenewald
v Groenewald
1998(2) SA
1106 (SCA) at 1113 C-I). We are only concerned with the first
inquiry because it is common cause that if factual causation
has been
established (the
onus
in this regard being on the respondent) the requirements for legal
causation have been satisfied.
[19]
According
to what was said by Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley
when elaborating on the test for factual causation (at 700 F-G), one
must ask oneself what would probably have happened but for
the
wrongful attachment of the jewellery. This involves “the
mental elimination of the wrongful conduct and the substitution
of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff’s
[respondent’s] loss would have ensued or not”. The
answer to my mind is that the jewellery would most probably have
been
returned to the respondent before the robbery took place. The
appellant was under an obligation to return the jewellery once
judgment had been given. The respondent in turn was anxious to have
the jewellery restored to her possession - hence Smithers’s
frequent enquiries culminating in the affidavit filed by her on 18
December 1991. Given the fact that the jewellery belonged to
her and
that she would naturally have wanted it to be returned as soon as
possible after it had served its purpose (she had after
all been
deprived of its possession and use for well over a year) one would
normally have expected its early return - indeed that
is what she
sought to achieve. But for the attachment the appellant would have
had no reason to keep the jewellery. It was the
unlawful attachment
alone that precluded its early return - in fact the whole purpose of
the attachment was presumably to prevent
it being handed back. Had
it been returned when it should, and probably would, have been but
for the attachment, the jewellery
would no longer have been in the
appellant’s possession, and would not have been stolen, on 16
January 1992.
[20]
The
letter written by Smithers’s attorneys on 6 January 1992 (see
para
[8]
above) does not in any way affect this conclusion. I shall assume
that it was written with the respondent’s knowledge and
approval. The respondent was faced with a
fait
accompli
. There had been
an attachment of her jewellery and that was the reason why the
appellant refused to return it. The letter was
a further step in the
process of trying eventually to recover the jewellery. The fact of
the matter is that the attachment was
unlawful and should not have
taken place, in which case the jewellery would have been returned and
the letter would have been unnecessary.
The letter is therefore not
relevant to the factual causation inquiry.
[21]
In
my view the court
a quo
correctly held that the appellant’s wrongful attachment of the
jewellery caused or materially contributed to the respondent’s
loss, and that he is accordingly liable to her for such loss.
[22]
The
appeal is dismissed with costs.
_________________________
J W SMALBERGER
JUDGE OF
APPEAL
VIVIER JA )
ZULMAN JA )Concur
MELUNSKY
AJA )
HJO
VAN HEERDEN WndHR
[1] Om redes wat volg,
kan ek nie akkoord gaan met die meerderheidsuitpsraak nie.
[2] In alle gevalle wat
in die tersaaklike bronne vermeld word, het die beslaglegging gepaard
gegaan met besitstoeëiening
deur die betrokke amptenaar; in
ons hedendaagse reg die balju. Geen vermelding word gemaak van ‘n
geval waarin die goed
reeds in besit van die balju is nie, en dus
slegs ‘n kennisgewing van beslaglegging beteken word.
[3] Die reël dat ‘n
balju skuldloos aanspreeklik is vir ‘n skadestigtende,
onregmatige beslaglegging is klaarblyklik
‘n uitsondering op
die algemene vereiste vir aanspreeklikheid. Bowendien lê dit
nie voor die hand nie dat in die
gepostuleerde geval - in
teenstelling tot, byvoorbeeld, ‘n verkoping as gevolg van ‘n
beslaglegging - die blote beslaglegging
ongepaard met ‘n
fisiese handeling in sigself onregmatig is. Ek sou dus huiwer om die
skuldlose aanspreeklikheid van ‘n
balju uit te brei om ook ‘n
geval soos die onderhawige in te sluit. Dit is egter nie nodig om
daaroor uitsluitsel te gee
nie.
[4] Aangenome dat daar
in casu
‘n onregmatige beslaglegging was, kon die appellant teenoor die
respondent aanspreeklik wees slegs indien, onder andere,
daar ‘n
feitlike kousale verband tussen die beslaglegging en die respondent
se verlies bestaan het. Die respondent se advokaat
het geredelik
toegegee dat die bewyslas betreffende hierdie vereiste op haar gerus
het. Die vraag is dus of die respondent bewys
het dat sy nie ‘n
verlies sou gely het indien daar geen beslaglegging was nie.
[5] Die
appellant het instruksies van die vonnisskuldeiser gekry om op die
juwele beslag te lê. Indien hy sonder goeie rede
versuim het
om die instruksies uit te voer, sou hy aanspreeklikheid teenoor die
skuldeiser opgeloop het indien sy late laasgenoemde
geskaad het:
Bort,
Rechtsgeleerden
Wercken, Arresten
6.4. Hoogstens sou die appellant dus die beslaglegging agterweë
gehou het met kennis aan die respondent van die instruksies
wat hy
ontvang het.
[6] Dit
is glad nie ‘n uitgemaakte saak dat die respondent wel op so ‘n
kennisgewing sou reageer het nie. Ons weet
immers dat nadat vonnis
op 21 November 1991 teen Smithers verleen is tot nadat die roof
gepleeg is, die respondent geen poging
aangewend het om herbesit van
die juwele te verkry nie - selfs nie eens by wyse van informele
aanmaning nie. Indien sy egter wel
aanspraak op die juwele sou
gemaak het, was dit die appellant se plig - en ook redding - om ‘n
tussenpleitgeding aanhangig
te maak, selfs al was daar nie ‘n
beslaglegging nie:
Weeks v
Amalgamated Agencies, Ltd
1920 AD 218
,238. Het dit gebeur, sou die appellant ten tye van die
roof waarskynlik nog in besit van die juwele gewees het, sy dit dan
nie
onder beslaglegging nie.
[7] Om die benarde
posisie van ‘n balju in die gepostuleerde geval te illustreer
kan op die volgende voorbeeld gelet word.
In opdrag van ‘n
vonnisskuldeiser lê ‘n balju beslag op goedere wat
volgens sy instruksies aan die skuldenaar
behoort, maar nie by die
adres van die skuldenaar nie. Daarna maak ‘n derde aanspraak
op die goedere. Die enigste manier
waarop die balju hom dan kan
beveilig, is om met behoud van die goedere ‘n tussenpleitgeding
aanhangig te maak. As die respondent
dit reg het, kan die balju
egter skuldloos aanspreeklik wees indien sy besit van die goedere vir
die derde ‘n verlies meebring.
[8] In bostaande verband
kan ook op die bepalings van Hofreël 45 gelet word. Subreël
(3) bepaal dat indien die balju
goedere in beslag geneem het of in
beslag wil neem, en ‘n derde daarop aanspraak maak, die eiser
die balju moet vrywaar teen
verlies of skade weens die beslaglegging,
waarna die balju dit moet behou of beslag daarop moet lê en in
bewaring neem.
Aangenome dat die vonnisskuldeiser in ons geval die
vrywaring verstrek het - soos wel gebeur het - was die appellant dus
verplig
om die juwele in sy besit te hou. Dit mag dus wees dat Reël
45 die gemeenregtelike posisie soos uiteengesit in Weeks gewysig
het.
[9] Samevattend is ek dus
van mening dat nie bewys is dat indien daar geen beslaglegging van
die juwele was die verlies nie in elk
geval sou ingetree het nie.
Ek sou dus die appèl met koste handhaaf.
VAN HEERDEN WndHR