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[1993] ZASCA 53
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Tödt v Ipser (194/91) [1993] ZASCA 53; [1993] 2 All SA 296 (A) (31 March 1993)
IN THE
SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter:
SELMA
PATRICIA TODT
Appellant
and
CLAUDE
WALTER IPSER
Respondent
CORAM
:
E M GROSSKOPF, MILNE, EKSTEEN, NIENABER, JJA,
et
VAN COLLER
AJA.
HEARD
:
9 March 1993
DELIVERED
:
31 March 1993
2
JUDGMENT
E M GROSSKOPF, JA
The
appellant unsuccessfully sued the respondent for damages allegedly
arising from her arrest and imprisonment at the instance of
the
respondent pursuant to sec 65A
et seq
of the Magistrates'
Courts Act, no. 32 of 1944 ("the Act"). With the leave of
the court a quo (Howie J in the Cape Provincial
Division) she now
appeals to this court.
The
respondent was at all relevant times an attorney in Bellville, Cape.
The appellant and her husband were estate agents. They were
on
reasonably friendly terms with the respondent. The parties met
socially and the respondent performed conveyancing work sent his
way
by the appellant and her husband.
At one
stage the appellant's estate agency business
was very
successful. In her own words:
"Our
standard of living was very high, we did exceptionally well. Both of
us drove Mercedes-Benz. We entertained, we lived the
high life, I
would say, and we maybe possibly over-extended our limits at certain
stages ... At a certain point in time
3
suddenly
the market seemed to collapse around us, the interest rates soared,
everything just seemed to collapse around us and at this
particular
time both my husband and I seemed to be experiencing marital
problems, and things went from bad to worse and eventually
I decided
to institute divorce proceedings."
The
collapse occurred in 1985. The appellant consulted respondent (or his
firm) to act for her in the divorce. Initially the matter
was handled
by a professional assistant, one Joubert, but he left the
respondent's employ in April 1985, and thereafter the respondent
dealt with it himself. By September 1985 the appellant and her
husband had become reconciled. On 2 September 1985 the respondent
wrote to the appellant telling her that he was closing the file and
enclosing his final account. The amount was R296,34 which included
interest.
At this
time the appellant was in serious financial difficulties, and on the
advice of an attorney, one De Braal, she applied for,
and was
granted, an administration order in terms of
sec. 74
of the
Magistrates' Courts Act. That
section
4
provides
that, where a debtor is unable forthwith to pay the amount of any
judgment obtained against him or to meet his financial
obligations,
and does not have sufficient assets available to satisfy such
judgment or obligations, and the total amount of his debts
does not
exceed a specified amount (at present R20000), the court may make an
administration order providing for the administration
of the debtor's
estate and for the payment of his debts in instalments or otherwise.
Section 74E
makes provision for the appointment of an administrator
and his duties are set out in
section 74J.
They are mainly to collect
payments made in terms of the administration order, to keep proper
books, and to distribute the payments
among the creditors. According
to
sec 74A(2)(e)
an application for an administration order must
contain a complete list of the debtor's creditors and their
addresses, and particulars
of their claims. After his appointment the
administrator must draw up and lodge with the clerk of the court a
complete list of creditors.
Provision is made for
5
creditors,
who were not mentioned in the list accompanying the application, to
be included in the list compiled by the administrator
so as to share
in any distribution.
The
administration order in the present case was granted on 17 October
1985. The court ordered the appellant to pay R60 per month
in respect
of her debts. De Braal was appointed administrator.
In her
application for the administration order the appellant did not
include the respondent as one of her creditors. He found out
about
the administration order in October or November 1985 from Mrs. Brink,
who managed his collections department. She became aware
of it
because they were collecting a debt from the appellant on behalf of a
client, Kirchoff & Van Greunen.
On 9
December 1985 the respondent (through his clerk, one Botha) wrote to
De Braal asking to be placed on the list of the appellant's
creditors
for an amount of R308,73 in respect of professional fees. This
comprised the
6
original
capital amount plus interest. The letter concluded
by stating
that further interest at 20 percent per annum from
1 December
1985 to date of payment would be added. On 13
January
1986 De Braal replied, querying the claim for
interest.
Botha replied as follows on 28 January 1986:
"Ons
verwys na u brief gedateer 13 deser en wens u mee te deel dat ons op
grond van 'n stilswyende ooreenkoms die rente van 20%
per jaar eis.
Ons verneem graag binne twee weke van u of u die eis aanvaar soos
uiteengesit. Indian nie sal ons noodwendig aansoek
ingevolge Artikel
74 P (1) doen om verlof om te dagvaar bloot met die doel om vonnis te
kry om ons op 'n gelyke voet met ander skuldeisers
te plaas wat
betref rente."
De Braal
does not appear to have replied to this
letter. On
19 February 1986 the respondent filed an
application
under section 74P(1) of the Act. This provision,
in so far
as it is relevant, reads as follows:
"As
long as any administration order is of force and effect in respect of
the estate of any debtor, no creditor shall have any
remedy against
the debtor or his property for collecting money owing, except ... by
leave of the court and on such conditions as
the court may impose."
7
The
application was prepared by Botha, but the
respondent
signed the affidavit in its support. The affidavit
set out
the history of the matter,
inter alia
recording that
the
administrator had questioned the respondent's claim for
interest,
and that the respondent had, in the letter of 28
January
1986 called upon the administrator to accept the
claim for
interest, failing which the leave of the court
would be
sought "to institute action ... with a view to
obtaining
judgment for no other purpose than to qualify for
interest".
The affidavit then continued as follows:
"It
is important that interest accrues on the capital owing to me as it
will be many years before my claim is settled and inflation
is
eroding the value thereof at the rate of approximately 18% p.a.
at
present.
...I
therefore humbly request the Court for leave to institute proceedings
against the Respondent [i.e., the present appellant] so
that I may be
placed on an equal foot with other creditors who have judgments in
their favour. I accept that such leave be limited
to the institution
of action and the taking of judgment, and that I will not be free to
execute the judgment whilst the Administration
Order is in
existence."
8
The
application was granted by the magistrate of Bellville. The
magistrate recorded that the order was "in respect of the
interest
only as per affidavit attached to application."
In due
course summons was issued, and, after some difficulty in getting hold
of the appellant, personally served. The appellant did
not defend,
and on 17 July 1986 respondent obtained default judgment against her
for R340,34 plus interest at 20% from 31 August
1985 to date of
payment.
Having
obtained judgment, the respondent renewed his efforts to be included
in the list of the appellant's creditors so as to participate
in the
distribution. On 24 July 1986 he wrote to De Braal informing him of
the judgment and requesting to be placed on the list of
creditors. On
21 August the respondent received a dividend on behalf of Kerchhoff &
Van Greunen, but the list of creditors accompanying
the payment did
not include the appellant's own claim. After several further letters
from the respondent, De
9
Braal
eventually wrote on 29 October 1986 "to inform that we have
included you in the distribution". However, matters continued
as
before. In April 1987 the respondent received a dividend on behalf of
Kerchhoff & Van Greunen but he himself was not on the
list
accompanying the payment and he received nothing. Further letters to
Van Braal evoked no reaction. Personal requests, either
telephonic or
face to face (they both practised in the Bellville area, and saw each
other fairly often), fared no better. The respondent
became
increasingly frustrated. By June 1987 he came to the conclusion that,
despite the letter from De Braal of 29 October 1986,
he was not on
the list of the appellant's creditors who would share in any
contributions made by her. He stated in evidence that
this conclusion
was based not only on De Braal's failure to react to his claims but
also on the results of (unspecified) enquiries
made by a staff
member. The respondent decided that the time had arrived for sterner
measures.
10
In
deciding what measures to adopt the respondent relied only on his own
recollection of the legal position pertaining to administration
orders. The respondent stated that in the early years of his practice
(he started in 1973) he had been engaged in a couple of
administration
order matters. He did not like this type of work and
avoided it afterwards. His recollection from those days was that a
creditor,
who was not included in the list of creditors compiled by
the administrator, was entitled to execute against the debtor as if
no
administration order existed. Although he knew that the sections
of the Act dealing with administration orders had been largely
re-written
by amendments in 1976 (he had in fact read the amendments
at the time of their promulgation), he was firmly under the
impression
that the right of a creditor to execute if he did not
appear on the list, had not been touched. Although he had signed the
affidavit
in the proceedings under sec 74P of the Act, he did not (he
testified) consciously note that sec 74P
11
required
the court's leave for proceedings against a debtor under
administration even by creditors who were not on the list. Because
of
his view of the legal position he considered that he had been
friendly and co-operative in trying to be included in the list of
creditors when he might have proceeded to execution. He now decided
to assert his rights.
The
procedure chosen by the respondent was that provided by sections 65A
et seg
of the Act. This entailed, in a case like the present
where the creditor relies on a default judgment, that the debtor
first had
to be "advised ... by registered letter of the terms
of the judgment ... and the consequences of his failure to satisfy
the
judgment ... " (sec 65A(2) ). Ten days after posting this
letter the creditor may proceed to the next step. He may then issue
from the court of the district in which the debtor resides a notice
calling upon the debtor to appear before the court in chambers
on a
date specified in the notice to show cause why
12
he should
not be committed for contempt of court and why he
should not
be ordered to pay the judgment debt in instalments
or
otherwise (sec 65A(1) ).
On 17
August 1987 the respondent gave the following
written
instruction to Mrs Brink:
"Indien
ons nie ingesluit is in die lys van skuldeisers word ons nie deur die
Administrasiebevel
gebind nie. Gaan voort met a 65A stappe asb."
On 18
August 1987 a notice in terms of sec 65A(2)
was sent
by registered mail to the appellant at an address in
Hout Bay.
This was returned with the comment "Gone away - no
address
left". A further notice was sent by registered mail
in
December 1987 to the appellant's new address in Three
Anchor
Bay. This notice was returned in January 1988, marked
"unclaimed".
On 10 February 1988 the respondent caused a
notice in
terms of sec 65A(1) to be issued calling upon the
appellant
to appear on 14 March to show cause why she should
not be
committed to gaol for contempt of court and ordered to
pay the
judgment debt which, with interest and ancillary
13
costs, had by then increased to
more than R520. On 23
February 1988, the messenger of
the court, Mr Bateman, who
gave evidence at the trial, served
this notice by affixing it
to the main door of the
appellant's flat. The appellant
testified that she did not receive
the notice. She did not
appear at the hearing on 14 March
1988 and the court ordered,
in terms of section 65F(1) of the
Act, that she undergo a
period of 30 days committal in
Pollsmoor prison.
Sec 65H provides that a warrant
for the arrest and
detention of a judgment debtor
shall be prepared by the
judgment creditor or his attorney,
shall be signed by the
judgment creditor or his attorney
and the clerk of the court
and shall be executed by the
messenger of the court. The
respondent prepared and signed
such a warrant for the arrest
and detention of the appellant,
had it signed by the clerk of
the court, and sent it to the
messenger of the court under
cover of a letter dated 11 April
1988 reading:
"We enclose a Warrant of
Arrest and Detention for service on the above-named Debtor at given
address.
14
Please
endeavour to collect an amount of at least R250,00 from the Debtor".
It was
explained in evidence that warrants of arrest and detention issued in
terms of section 65H did not usually lead to the actual
incarceration
of the debtor. In most cases service of the notice was a sufficient
inducement to the debtor to make some payment in
order to retain his
or her freedom. It was accordingly the usual practice for a creditor
to inform the messenger of the court how
much he was prepared to
accept from his debtor to avoid execution of the warrant of arrest.
After an
unsuccessful attempt to execute the warrant on 4 May 1988, Bateman
served the warrant on 11 May at about 5 a m. In response
the
appellant's husband handed Bateman a cash cheque for R448. The trial
judge accepted Bateman's evidence that he served two warrants
on the
appellant that morning, and that only R250 of this amount was to be,
and was in fact, paid to the respondent.
15
On 10 June
the respondent wrote to the appellant as
follows:
"You
must remit payment of not less than R50,00 per month, failing which
we intend re-issuing the warrant for your arrest".
The
appellant received this letter. She telephoned the respondent's
office and spoke to a clerk whom she told that she considered
the
claim to have been paid in full. This message apparently never
reached the respondent. There was no further communication between
the parties. The appellant made no further payments. On 18 July the
respondent again forwarded the warrant of arrest to Bateman under
cover of a letter in which he requested Bateman to collect "the
full outstanding balance of R394,21 together with your charges".
Bateman
served the warrant at about midnight on 1 August 1988. The appellant
and her husband were highly indignant, but the appellant's
husband
nevertheless offered to pay the amount. Bateman refused to take the
money. There was an imbroglio between Bateman and the
appellant's
husband
16
and
Bateman fetched police support. Eventually the appellant was placed
in the patrol van of the messengers of the court, and, after
various
other defaulting debtors had been picked up, deposited at Pollsmoor
prison. The next morning her husband paid the amount
owing at the
office of the messenger of the court, and the appellant was released
in terms of sec 65L (b) of the Act. In her evidence
the appellant
gave a graphic account of her odyssey in the patrol van and her stay
in prison. I do not propose repeating it herein.
Obviously it was a
most unpleasant experience.
Arising
from these events the appellant claimed damages from the respondent.
In addition she claimed, by way of a
condictio indebiti
,
return of the money paid by her husband. Both claims failed in the
court a quo. The claim based on the
condictio indebiti
is not
subject to appeal and no more need be said about it.
Concerning
the claim for damages, the trial court considered that the
appellant's case as pleaded was one of
17
malicious
arrest and imprisonment. The appellant as plaintiff therefore had to
prove
animus injuriandi
on the part of the respondent. This
the appellant had failed to do. In particular, the appellant had
failed to show that the respondent
did not genuinely believe that he
was entitled, despite the existence of the administration order and
the qualified nature of the
default judgment obtained against the
appellant, to institute proceedings under sec 65A of the Act.
Moreover, it was held, the appellant
had not shown that the
respondent foresaw that the appellant's arrest and detention might
actually materialise in the circumstances
of this case.
The trial
court then dealt with an alternative basis of liability suggested by
the appellant's counsel, namely wrongful or unlawful,
as opposed to
malicious, arrest and imprisonment. The distinction between these two
causes of action was stated as follows by the
trial judge on the
authority of
Newman v Prinsloo and Another
1973 (1) SA 125
18
(W) at
127H-128A:
"In
wrongful arrest the act of restraining the plaintiff's freedom is
that of the defendant or his agent for whose action he
is vicariously
liable. In malicious arrest the interposition of a judicial act
between the defendant's act and the arrest makes the
restraint the
act of the law not the act of the defendant".
On the
basis of this distinction, the learned judge
a quo
held that
the suggested alternative cause of action could not succeed because
the messenger did not act as the respondent's agent
in arresting the
appellant and the warrant was issued only after a magistrate had
exercised his discretionary power to order the
appellant's committal
under sec 65F. In what follows I use the expressions wrongful arrest
and unlawful arrest interchangeably
The
appellant's main argument before us was that the alternative case
based on unlawful arrest and detention should have succeeded
in the
court
a quo
. Before considering the merits of that contention
I must, however, first deal with a problem of pleading. Before us it
was argued,
as it
19
had been
before the court
a quo
, that a claim in respect of
wrongful
arrest was not before the court because the
appellant
did not in her particulars of claim allege facts
necessary
for such a cause of action. I do not agree. The
relevant
paragraphs read as follows:
"3.
At all material times, Plaintiff was subject to an administration
order issued by the Additional Magistrate, Bellville, and
such order
was of full force and effect.
In terms
of section 74P(1) of the Magistrate's Court Act (Act No 32 of 1944,
as amended), no creditor has any remedy against a debtor
under
administration or against his property (save for debts secured by way
of mortgage bond or referred to in terms of Section 74P(3)
of the
said Act) without the leave of the Court and on such conditions as
the Court may impose.
4. On 10th
March 1986, Defendant applied to the Additional Magistrate,
Bellville, for leave to institute action against Plaintiff
in terms
of Section 74P(1) 'for no other purpose than to qualify for interest'
on an amount of R296,34, alleged by Defendant at the
time to have
been owed to him by Plaintiff.
Defendant
moreover accepted that, should such leave to institute action (and in
due course obtain judgment) be granted, Defendant
would 'not be free
to execute (upon) the judgment while the administration order (was)
in existence'.
20
Leave was
duly granted to defendant to institute action (and to obtain
judgment), Defendant having restricted himself to obtaining
such
judgment for the aforesaid purposes and subject to the aforesaid
restriction, pursuant to which Defendant obtained judgment
against
Plaintiff in the Bellville Magistrate's Court.
Notwithstanding
the aforegoing, Defendant wrongfully, wilfully and with the
intention to injure, obtained a judgment in the Cape
Town
Magistrate's Court (based on the aforesaid judgment in the Bellville
Magistrate's Court), instituted proceedings against Plaintiff
in
terms of Section 65 of Act No 32 of 1944 (of which Plaintiff was at
all material times unaware) and caused a warrant of arrest
to be
issued for Plaintiff's incarceration, pursuant to which Plaintiff
was arrested by the Deputy Messenger, Cape Town, on 1st
August 1988
and detained in prison on 2nd August 1988.
By virtue
of the aforegoing, Plaintiff suffered grave distress and
inconvenience, was severely humiliated and was gravely injured
in
her dignity."
The acts
about which the appellant complains in
para 6,
are the following:
The
obtaining of a judgment in the Cape Town Magistrates' Court;
The
institution of proceedings in terms of
21
Section
65A of the Act; and
(c) The
causing of a warrant of arrest to be issued for the appellant's
incarceration pursuant to which she was arrested and detained
in
prison. The complaint in paragraph (a) may be ignored. The only
proceedings instituted in the Cape Town Magistrates' Court were
those
mentioned in paragraph (b), namely the proceedings in terms of
section 65A. Now the acts set out in paragraphs (b) and (c)
were, so
it is alleged in paragraph 6 of the particulars of claim, committed
by the respondent "wrongfully, wilfully and with
the intention
to injure". The allegation of intention to injure (
animus
injuriandi
,
dolus
) is necessary in an action for malicious
arrest, (cf
Moaki v Reckitt & Colman (Africa) Ltd and Another
1968 (3) SA 98
(A) at pp 103D to 104G and authorities there cited).
However, an action for wrongful arrest does not require proof of
animus injuriandi
in the full sense of the term as including
consciousness on the part of the defendant that he is acting
22
unlawfully.
In the recent judgment in
Minister of Justice y
Hofmeyr
(unreported case no 240/91 delivered on 26 March
1993) this
court expressly approved the following passage
from
Smit
v Meyerton Outfitters
1971 (1) SA 137
(T) at p
139D:
"In
die geval van die
actio injuriarum
het die skuldbegrip met
twee oorwegings te make. Die eerste is dat die verweerder opsetlik
(intentionally) gehandel het en die tweede
is dat hy geweet het dat
die handeling onregmatig is. In die geval van onregmatige arrestasie,
hoewel dit uit die
actio injuriarum
ontwikkel het, is die
tweede oorweging nie 'n vereiste vir aanspreeklikheid nie."
It follows
that the allegation in the particulars
of claim
of an intention to injure (which would include
consciousness
of unlawfulness) went beyond what was required
to
disclose a cause of action for unlawful arrest. In
respect of
such a cause of action, this allegation may be
regarded
as surplusage. However, this does not detract from
the fact
that the remainder of the paragraph does allege,
inter
alia
, that the respondent wrongfully and wilfully
caused the
appellant's arrest. No doubt it would have been
23
better
pleading to allege malicious arrest and wrongful arrest in the
alternative, but, except for the respondent's state of mind,
the same
issues arose in respect of both causes of action, and the same
evidence was relevant. It is not suggested that any question
relating
to the case of wrongful arrest was not fully canvassed in the court a
quo, or that the respondent would in any way be prejudiced
if a
decision on that ground were to be given. In these circumstances I
consider that we are entitled, and in fact obliged, to consider
whether the proven facts establish liability on the ground of
wrongful arrest and imprisonment. See, in this regard, e g,
Robinson
v Randfontein Estates
G.M. Co., Ltd
1925 AD 173
at 198 and
Marine & Trade Insurance Co Ltd v Van der Schyff
1972 (1)
SA 26
(A) at pp 44H to 45B. I now turn to this enquiry.
The
commencement of the chain of events which culminated in the
appellant's imprisonment was the application under sec 74P of the
Act. This application was
24
granted
conditionally. The respondent was given leave to issue summons and
obtain judgment but "for no other purpose than to
qualify for
interest" - in particular the respondent "would not be free
to execute" while the administration order
was in existence. The
effect of these conditions was, in my view, that the respondent did
not have a judgment which could sustain
a valid execution or valid
proceedings under sec 65A of the Act. Before sec 65A can be invoked
there must be a judgment debt which
is payable by the debtor and has
remained unpaid for ten days or more. In this case the debtor's
estate was under administration.
In terms of sec 74J (14) of the Act
a payment by the appellant of the judgment debt would have been
invalid. The manner in which
the appellant was required to pay her
debts was by making regular payments to the administrator of the
amounts ordered by the court
so as to enable the administrator to
distribute them among her creditors generally. And the conditions
imposed in the application
granted under sec 74P were devised to
ensure that
25
any
judgment granted would not interfere with this regime. In short,
there was no enforceable judgment debt and there was accordingly
no
basis for the proceedings under sec 65A. The court had no power to
entertain such proceedings.
The
institution of sec 65A proceedings in the absence of an enforceable
judgment constituted, in my view, an unlawful act on the part
of the
respondent. In
Sliom v
Wallach's Printing & Publishing
Co Ltd
1925 TPD 650
the defendant had issued a summons against a
partnership of which the plaintiff was a member. A default judgment
was taken on this
summons against the plaintiff personally. In a
subsequent action the plaintiff sued,
inter alia
, for damages
on the ground that the defendant had unlawfully taken judgment
against him. The court deciding (on appeal) an exception
to the
damages claim held that the plaintiff had not been legally cited
before the court in the earlier proceedings, and that the
judgment
obtained against him was a nullity (at p 656). Regarding the
defendant's liability in
26
these
circumstances, the court said (at p 657):
"The
summons alleged that what the respondent [defendant] company did was
to obtain this judgment against the plaintiff wrongfully
and
unlawfully and maliciously, and as the judgment itself was a nullity,
as the respondents [defendant] had no right to apply for
and obtain
that judgment against the appellant [plaintiff] personally, it
follows that the procedure adopted by the respondents was
an illegal
procedure, and it is quite unnecessary for the plaintiff in this case
to allege any absence of reasonable and probable
cause".
The court
referred to the case of
Cohen Lazar & Co v Gibbs
1922 TPD
142
in which a defendant was held liable for causing
a debtor's
property to be attached in execution when there
was no
judgment to support it, and quoted the following
passage
from the judgment (p 145 of the
Cohen Lazar
case,
quoted at
p 657 of
Sliom's
case):
"When
a person sues out a warrant of execution with us and he has no right
to do so, because he has no judgment to support it,
we say he is
guilty of a delict and he is liable in damages. The delict lies in
the wrong he has done by asking for a writ of execution
when he is
not entitled to do so and not in the fact that he acts maliciously".
After
quoting this passage, the court in
Sliom's
27
case
continued:
"That
seems to apply with equal force in the present case. The delict
committed in this case was to apply for a judgment against
a person
who has not been properly cited before the Court..."
In the
instant case, by a parity of reasoning, it
would seem
that the respondent acted unlawfully when he
instituted
proceedings under sec 65A without a supporting
judgment.
Whether the unlawful institution of the
proceedings
would, by itself and without proof of
animus
injuriandi
,
have rendered the respondent liable for damages
(see, in
this regard
Cohen Lazar's
case and
Sliom's
case,
supra
)
need not be considered now since the respondent did
not stop
there. He continued by issuing warrants of arrest
- and
detention which ultimately led to the appellant's arrest
and
imprisonment. This whole process (which was in effect one
of civil
imprisonment - see
Quentin's v Komane
1983 (2) SA
775
(T) at
p 778 D-E) - suffered from the basic defect that
there was
no judgment to support it. And we now have firm
authority
in
Minister of Justice v Hofmeyr
(
supra
) for the
28
proposition
that the conscious unlawfulness which is normally an element of
animus injuriandi
is not required for liability on the grounds
of unlawful deprivation of liberty. It therefore would not matter if
the respondent
thought he was entitled in law to act as he did.
There is,
however, one respect in which the present case possibly differs from
the
Cohen Lazar
case and
Sliom's
case. In both these
cases the courts emphasized that the purported legal acts (the writ
in the former case and the judgment in the
latter) were completely
void. In the instant case the questions consequently arise whether
the order of the magistrate under sec
65F was equally void and, if
not, whether it would make a difference to the respondent's
liability. In
Sliom's
case, following (apparently) Voet,
Commentarius ad Pandectas
2.4.14 and 66, the court held (at p
656) that a judgment given against a person who had not been duly
cited before the court is of
no effect whatsoever. It is a nullity
and can be disregarded. In logic the same argument
29
should
apply here. If there was no valid executable judgment
against
the appellant, then the notices under sec 65A and
everything
that followed thereon should in logic be void. And
the mere
fact that one of the succeeding events was an order
of the
court should make as little difference as it did in
Sliom's
case. Similarly the following passage from the
Cohen
Lazar
case (at p 145), relating to execution against the
property
of a debtor, would seem to be wholly apposite,
mutatis
mutandis
, to the present case, which is in effect one
of
execution against the person of the debtor:
"It
is revolting to one's common sense to think that a person unsupported
by any judgment could induce a clerk to issue to him
a writ, seize a
person's property, and escape liability merely because he acted
without malice and under the impression that no judgment
was
required."
This
passage was quoted with approval in
Minister of Justice
v.
Hofmeyr
(
supra
).
The
difficulty is that in our law the tendency is
against
holding that judgments are void. According to our
common law
authorities judgments are void in only three types
30
of cases -
where there has been no proper service, where there is no proper
mandate or where the court lacks jurisdiction. See
Minister of
Agricultural Economics and
Marketing v Virginia Cheese and
Food Co (1941) (Pty) Ltd
1961 (4) SA 415
(T) at p 422E to 424H;
S
v Absalom
1989 (3) SA 154
(A) at p 163C and 164E - G; and the
earlier authorities cited in these cases. In the present case the
court was not entitled to issue
a committal order because there was
no enforceable judgment against the appellant, but this is possibly
not a lack of jurisdiction
in the sense in which the term was used by
our authorities. However, I do not think the old authorities quoted
in the cases above
are of decisive importance for present purposes.
They deal with judgments generally. In the present case we are
concerned, not with
a judgment settling a substantive
lis
between the parties, but with an order made in the course and for the
purpose of execution. It seems inconceivable to me that such
an order
can have any validity where there is no judgment capable of
31
being
executed. Even if it were to be that there is no lack of jurisdiction
in the strict sense in such a case, I consider that such
an order
must be wholly void. There is, accordingly, in my view no distinction
between the present case and those of
Sliom
and
Cohen Lazar
(both
supra
) and it was unlawful on the part of the respondent
to institute and carry through the proceedings under sec 65A
et
seq
. of the Act. Because the purported order of court was void,
there was no "interposition of a judicial act" which,
according
to the passage quoted from
Newman's
case
supra
,
would have rendered the appellant's arrest and detention "the
act of the law not the act of the defendant". For this reason
I
consider that the court
a quo
erred in holding that there
could not be liability for unlawful arrest in the present case.
In view of
my conclusion on this part of the case it is not necessary to
consider whether the respondent's position would have been
any better
if the committal order had not been void but merely voidable. I
express no view on
32
had not
been void but merely voidable. I express no view on this point.
The
respondent's counsel argued that, even if the committal order is
void, the respondent cannot be held liable for the appellant's
arrest
and detention because this resulted from an act of the messenger of
the court over whom the respondent had no control - in
fact, the
messenger acted contrary to the instructions of the respondent in not
accepting money from the appellant or her husband.
I do not
think this argument is sound. The respondent unlawfully obtained an
order for the appellant's committal, he unlawfully had
a warrant
issued for her arrest and imprisonment and he sent it to the
messenger for execution. The messenger gave effect to the
warrant by
arresting the appellant and causing her to be imprisoned. If these
were the only facts the respondent would clearly be
liable. See the
Cohen Lazar
case,
supra
, and
Carter & Co
(Pty)
Ltd v McDonald
1955 (1) SA 202
(A) at p 210C. In the
33
present
case we have the further circumstances that the
respondent
requested the messenger to collect the full
outstanding
balance and that the respondent thought that the
appellant
would be able to pay this money, thereby
forestalling
an arrest. These circumstances did not, however,
detract
from the authority which the appellant had bestowed
on the
messenger. The warrant remained unimpaired. The
respondent
knew that it would be executed if the appellant
was unable
to raise the money in a form acceptable to the
messenger
(hardly an unlikely event in view of the
appellant's
parlous financial position). He also must have
known that
the messenger could comply with his request to
collect
the outstanding amount by simply arresting the
appellant
and thereafter obtaining the money. This is in fact
what
happened. The true position, it seems to me, is that the
respondent
authorised and instructed the appellant's arrest
and
imprisonment but that he expected supervening events
beyond his
control to prevent it at the last moment. This did
34
not happen
and the appellant was duly arrested and imprisoned in terms of the
unlawful authority and instructions given to the messenger
by the
respondent. The respondent cannot,in my view, escape liability for
this.
In the
circumstances, and for the reasons stated, I consider that the
respondent is liable in damages for the appellant's unlawful
arrest
and imprisonment. It is accordingly unnecessary to consider whether
the court
a quo
was correct in holding that a case of
malicious arrest and imprisonment had not been established.
I turn now
to the amount of damages. Both parties to the appeal requested that
this be fixed by us rather than having the case remitted
to the court
a quo
. In the course of his thorough judgment the trial judge
(commendably) considered what amount he would have awarded had
malicious
arrest and imprisonment been proved. It was argued before
us that
animus injuriandi
was a factor justifying an increased
award of damages, and that therefore, if the respondent were
35
held
liable for wrongful arrest only, this court should reduce the amount
suggested by the trial court. However, in assessing the
quantum of
damages, the trial court concentrated on the nature of the ordeal
suffered by the appellant, and the extent to which she
was herself
the authoress of her misfortunes. As far as the respondent's attitude
was concerned, the court mentioned only that he
had offered an
apology in his plea, and did not expressly have regard to the
postulated presence of
animus injuriandi
. Of course, this must
have been present to the court's mind because it was basic to the
assumption on which the court fixed damages.
However, it does not
seem to have been accorded much weight. Moreover, since the
respondent was at least grossly negligent in instituting
and carrying
through the sec 65A proceedings, and the amount fixed by the court
was in any event a relatively modest one, I consider
that we should
accept the court's suggestion as a proper award in the present case.
36
As far as costs in the court
a
quo
are concerned, the effect of this judgment is that the
appellant should have been successful in her claim for damages, but
she failed
in respect of her
condictio indebiti
which is not
on appeal before us. I think that that amounts to substantial success
in the trial court, particularly as the
condictio indebiti
did
not require any additional evidence. She is accordingly, in my view,
entitled to her costs in the court
a quo
.
In the result the appeal is
allowed with costs. The order of the court
a quo
is set aside
and replaced by the following:
The defendant is ordered to pay
damages in the amount of R4000,00;
Claim c) in the particulars of
claim is dismissed;
The defendant is ordered to pay
the costs of suit.
E M GROSSKOPF, JA
MILNE, JA EKSTEEN, JA NIENABER, JA
VAN COLLER, AJA Concur