Gillespie v Toplis and Another

• Jurisdiction: South Africa
• Judge: De Villiers JP
• Judgment Date: 03 November 1950
• Court: Cape Provincial Division

C De Villiers JP:

In this matter the claims in respect of which certain exceptions have been taken are of a somewhat unusual character The plaintiff is the son of one Elizabeth Magretta Gillespie born van Rooyen who died in 1901 The defendants are the executors testamentary D in the estate of Rosina Elizabeth Parkes who died on the 15th April 1950 The Circuit summons alleges that Elizabeth Gillespie was buried in an old cemetery on a farm known as Pisang River Plettenberg Bay which was owned by one H van Rooyen The burial took place with the permission of van Rooyen The plaintiff alleges that in 1921 with the E permission of the said van Rooyen who was still the owner he erected a tombstone and iron railing on the grave of his mother and that these remained intact until 1947 In January 1947 Mrs Parkes then the owner of the farm wished to remove the tombstone and lay it down on the F grave To this the plaintiff objected in writing but no indication of the nature of his objection or his right so to object is set forth in the summons Between 1947 and December 1949 the precise date being unknown to the plaintiff Mrs Parkes who was then the owner of the farm wrongfully violated the graves in the cemetery by removing the G tombstone and railing demolishing the graves and building a garage on the graves Plaintiff alleges that he will have to bear the cost of restoring the grave of his mother and has obtained the consent thereto of the present owner whose name is not disclosed nor is there any allegation as to when he became the owner He alleges that he has suffered patrimonial loss in the sum of £295 by reason of the violation H of his mother's grave this sum being the cost of the erection of a new tombstone and railing By the wrongful violation of the graves in the cemetery plaintiff's feelings of piety and veneration were hurt and his dignity offended Under this head the damage claimed is £2000 The allegation here clearly rests upon the actio injuriarum Mrs Parkes died on the 15th April 1950 and the plaintiff alleges that the defendants as her executors are liable for both claims

The Circuit summons in this case was issued on the 15th September,

De Villiers JP

1950, and served on the defendants on the 16th September, 1950. To this summons the defendants have excepted to both the claims set forth therein. The first exception relating to the claim for £295 is to the effect that the claim is bad in law, more particularly in that the A plaintiff has not alleged any proprietary interest in the tombstone and railing entitling him to claim compensatory damages from the defendants, or alternatively that on the facts alleged it is not clear on what basis the defendants are being held liable. The second exception on the claim for £2,000 raises two defences:

(a)

that the unlawful conduct alleged grounds no action in law B against the deceased estate of Mrs. Parkes in favour of plaintiff for hurt to his feelings and dignity; and

(b)

that the death of Mrs. Parkes before litis contestatio extinguished any claim which might have been made against her.

At the hearing Mr. de Vos, who appeared for the plaintiff, abandoned the C claim for £2,000. Authority would appear to support his abandonment of this claim. The Aquilian action, not being penal, is transmissible against the estate of Mrs. Parkes, while the actio injuriarum, being vindictam spirans, was not transmissible against the estate of the wrongdoer nor in favour of the estate of the person wronged. It was, D therefore, transmissible neither actively nor passively. See McKerron, Law of Delict (3rd ed., pp. 168/9 and the authorities there referred to).

Only the first exception, therefore, remains to be considered. It is important, therefore, to analyse the ambit of the allegations in the E summons in order to see precisely on what legal ground the claim is based. There is no allegation that the plaintiff or his mother or indeed any of his forbears were at any time owners of the farm in question or had any jus in re in respect thereof. The only basis of the claim appears to be that, as the plaintiff had initially in 1921 been given F permission to erect the tombstone and railing and that some time after the end of 1949 he had again been given permission by the new owner to re-erect the tombstone, he retained a patrimonial interest entitling him to sue. His claim appears to be based upon his contractual right to erect and to reerect, the right being given by the owner of the farm at G the date of erection and the proposed re-erection, respectively. There is no allegation that any right by way of servitude was either accorded to or reserved to him, nor is it alleged that any subsequent owners had knowledge of his contractual rights. Had the person who granted him the permission infringed his contractual rights, doubtless plaintiff would H have had a remedy, a remedy which would also presumably be available against subsequent owners who had purchased with knowledge of his contractual rights. In particular there is no allegation that Mrs. Parkes bought this farm with...