Beckenstrater v Rottcher and Theunissen

• Jurisdiction: South Africa
• Judge: Schreiner JA, Van Den Heever JA and Fagan JA
• Judgment Date: 28 September 1954
• Citation: 1955 (1) SA 129 (A)
• Hearing Date: 27 September 1954
• Court: Appellate Division

D Schreiner, J.A.:

The appellant sued the respondents in the Transvaal Provincial Division for damages for malicious prosecution: the case was heard by MALAN, J. who dismissed the claim with costs. From that order appeal is now brought to this Court.

E The appellant's claim arose out of his trial before the Nelspruit Circuit Local Division in August, 1950 on three charges which may be summarised as follows: -

(1)

That on the 28th May, 1946, in contravention of sec. 9 of Act 16 of 1914, as amended by sec. 82 of Act 46 of 1935, he knowingly made certain F false statements on affidavit; this may be referred to as the 'road charge';

(2)

That on the 18th March, 1949 he committed perjury in a certain Water Court case; this may be called the 'ten inch pipe charge';

(3)

(3) That he contravened sec. 133 (3) (a) of Act 8 of 1912, as amended, G by disobeying an order of the Water Court made on the 24th August, 1949; this I shall call the 'contempt charge'.

The appellant alleged in his declaration that the respondents, after conspiring to that end, set the law in motion and instituted criminal proceedings against him on these charges, that they did so wrongfully, unlawfully and maliciously and without reasonable and probable cause, that he was duly acquitted, and that as a consequence of the prosecution H he suffered damage. The plea was a denial of all the essential averments in the declaration.

The origin of the present proceedings is apparently to be found in the strained relations that have existed between the parties since they became neighbours in the district of Nelspruit some ten years ago. In

Schreiner JA

the year 1943 the appellant acquired the farm Krokodilspruit, through which flows the Sand River and its tributary, the Krokodilspruit. Out of the lower portion of the farm Krokodilspruit had been carved the farm Lochaber, farmed by one MacGregor. Below Lochaber lies the farm A Heidelberg, which is divided among a number of owners, including the two respondents, who acquired their respective properties shortly after the appellant became the owner of Krokodilspruit; the first respondent had previously leased the portion of Heidelberg that he afterwards acquired. It seems that not only the respondents but also other owners of portions of Heidelberg and MacGregor were on bad terms with the appellant from soon after his arrival in the district, and relations B did not improve with the passage of time. He was charged in 1945 with assaults upon natives and one of the cases led to a conviction in the magistrate's court which was reversed on appeal. Civil proceedings for damages at the suit of the native complainant were settled by the C appellant's paying a substantial sum and costs. there was also litigation in 1946 between the appellant and his neighbours about the use of the water in the Sand River and the Krokodilspruit, and about the use by the appellant of a private road running through Lochaber and Heidelberg to join a public road called the Bultfontein road.

The road litigation took the form of an application by the first D respondent against the appellant to interdict him from using the private road. Eventually the appellant renounced his claim to use this road and agreed to pay the costs of the proceedings, but this result is not important for present purposes. In the petition and in a supporting affidavit by MacGregor there were allegations to the effect that, apart E from the private road, there were two roads leading from the appellant's homestead to the Bultfontein road. Counsel at the hearing of the appeal were not in agreement as to the reason why it was material for the first respondent to show that the appellant in 1946 had other access by road to the Bultfontein road, but, for one or other of the reasons suggested, the existence of such access was treated as having relevancy to the F question whether the interdict should be granted or not. To the petition there was attached a map, referred to in the present proceedings as exhibit H, on which were shown two roads, labelled 'first' road and 'second' road respectively, leading from the appellant's homestead to the Bultfontein road, in addition to the G private road, labelled 'third' road, the use of which by the appellant the first respondent was seeking to restrain.

In dealing with the allegation in the petition concerning the so-called 'first' and 'second' roads the appellant stated in his affidavit that there were not three roads leading from his farm to the Bultfontein road, but that the routes referred to as the 'first' and 'second' roads were quite impassable and had not, according to his information, been H used for about 22 to 25 years. He said that in fact there were no roads where the 'first' and 'second' roads were alleged to be. He attached photographs purporting to represent the appearance of these so-called roads and showing them as over-grown dongas, obviously unusable for the passage of vehicles. In dealing with the affidavit of MacGregor the appellant said in his affidavit.

Schreiner JA

'I have no knowledge of the state of the roads marked 'first' and 'second' roads prior to the year 1925, but since I have been familiar with the farm Krokodilspruit, that is to say since 1937, the only passable road from the said farm to the Bultfontein road has been the road referred to as the 'third road''.

The respondent's case against the appellant on the road charge was that, while it was accepted as correct that there were no usable roads in the A positions of the 'first' and 'second' roads shown on exhibit H, there was at all material times another road running from the appellant's homestead to the Bultfontein road which was both usable and in use by motor vehicles. This road was referred to in the evidence as 'the present road'. the respondents contended that the appellant's abovementioned reply to the allegations in the petition, though in a literal sense it might be true, conveyed and was intended to convey the B false impression that the only passable, i.e. usable, road from the appellant's homestead to the Bultfontein road was the 'third' road. The reply, it was argued, deliberately suppressed the existence of the present road and fastened on the mistaken identification in the petition of the usable present road with the unusable 'first' road marked on C exhibit H, in order to convey to the Court in 1946 the impression that the appellant had no access to the Bultfontein road except via the 'third' road. So far as the reply to the allegation in MacGregor's affidavit was concerned the respondents contended that that reply was, in terms, false when it stated that the only passable road was the 'third' road.

D It was as early as October, 1946 that the second respondent laid a charge against the appellant for swearing falsely in regard to the roads in his affidavit, but no prosecution was then instituted against him.

The ten inch pipe charge and the contempt charge both arose out of Water E Court proceedings in the year 1949. Litigation in the Water Court in 1946 had resulted in an agreement between the parties which was made an order of the Water Court. Trouble arose regarding the implementation of the order and in 1949 the owners of Heidelberg and Lochaber again applied to the Water Court for relief agianst the appellant. The latter gave evidence in the course of which he made statements to the effect F that a ten inch pipe had existed in 1943 in the wall of a certain...