May v Udwin

• Jurisdiction: South Africa
• Judge: Wessels JA, Trollip JA, Kotzé JA, Joubert JA and Botha AJA
• Judgment Date: 26 September 1980
• Hearing Date: 20 March 1980
• Court: Appellate Division

Joubert JA:

This is an appeal against a judgment of VAN WINSEN J in the Cape Provincial Division awarding the respondent R1 000 damages and costs on the Supreme Court scale in an action brought by the respondent, as plaintiff, against the appellant, as defendant, for defamation. The G judgment has been reported: see Udwin v May 1978 (4) SA 967 (C). For convenience I shall hereafter refer to the parties by their names.

The action arose in the following circumstances. Udwin, an attorney of Johannesburg, employed one Van der Walt as a junior clerk. During 1963 Van der Walt obtained judgment in the magistrate's court, Johannesburg, H against one Absolom for payment of R600 with costs. The Industrial Council for the Building Industry (WP) (hereinafter referred to as "the council"), which carried on business in Cape Town, from time to time held certain monies by way of holiday leave pay due by it to Absolom. Udwin, acting on behalf of his client Van der Walt, in 1971 and 1972 obtained garnishee orders in the magistrate's court, Johannesburg, against the council, as garnishee, in respect of the then outstanding judgment debt and costs. After the garnishee orders had been served on the council, the latter in 1971 and 1972 remitted to Udwin the amounts of holiday leave pay then due by it to Absolom in reduction of

Joubert JA

the judgment debt and costs. On 20 November 1973 Van der Walt made an affidavit in support of another application in the magistrate's court, Johannesburg, for a garnishee order against the council, as garnishee, A for attachment of an unknown amount of holiday leave pay due by it to Absolom, the judgment debtor. At that stage an amount of R349,09 was still outstanding in respect of the judgment debt. On 22 November 1973 Udwin, acting on behalf of Van der Walt, the judgment creditor, obtained B in the magistrate's court, Johannesburg, a garnishee order against the council, as garnishee, for the attachment of a debt due by it to Absolom, the judgment debtor. The order directed the council to pay Van der Walt or his attorney so much of its debt due to Absolom as might be sufficient to satisfy the judgment debt's outstanding balance of R349,09 as well as the costs of attachment. The order was made returnable on 16 January 1974 C if the council failed to pay as aforementioned. On 5 December 1973 the order was served on the council but, despite the fact that the latter was at that stage indebted to Absolom in the amount of R312, it neither paid anything to Van der Walt, the judgment creditor, nor did it appear in that court on 16 January 1974. On the latter date the garnishee order was confirmed with costs. The amount then outstanding on the judgment debt, D inclusive of costs, was the sum of R483,60. It subsequently appeared that on 12 March 1974 the council had made out a cheque in favour of Udwin for R312 but apparently due to negligence on the part of the council's employees the cheque was never transmitted to Udwin.

On 20 March 1974 a warrant of execution, signed by Udwin as the attorney of Van der Walt, the execution creditor, was issued out of the E magistrate's court, Johannesburg, for the judgment debt of R483,60 against the council, as execution debtor. This warrant of execution authorised the messenger of the court to raise the sum of R483,60 together with his costs of execution on the property of the council. On 27 March 1974 the F messenger of the court went to the premises of the council in Cape Town to execute the warrant of execution. In consequence of this visit one Watson, the manager of the council's pension schemes, telephoned Udwin and informed him that the council held only R312 due by it to Absolom. He erroneously informed Udwin that a cheque for this amount had already been sent to him on 12 March 1974. He asked Udwin to ascertain from his client G Van der Walt whether the latter would accept payment of the sum of R312 from the council in regard to the warrant of execution. Udwin was instructed by Van der Walt to insist on payment by the council of the full amount of the warrant of execution, ie the sum of R483, as well as the costs of the messenger of the court. After having discovered his error H concerning the alleged dispatch of the council's cheque, Watson telephoned Udwin on 28 March 1974 and informed him of the true position relating to the cheque. Udwin advised him of Van der Walt's instructions to him. On the same day Udwin telegraphically conveyed Van der Walt's instructions to the council and the Donveyed Van der Walt's instructions to the council and to messenger of the court.

On 29 March 1974 the council brought an urgent ex parte application in the magistrate's court, Cape Town, for a stay of the warrant of execution. This application was heard by May in his capacity as an additional magistrate. He granted an interim order staying the warrant of execution

Joubert JA

and calling on Van der Walt, the respondent and execution creditor, to show cause on 19 April 1974 why the order should not be confirmed with A costs. Security in the amount of R317,15 was paid by the council, the applicant, into the court. Udwin in a replying affidavit on behalf of Van der Walt strenuously opposed the confirmation of the interim order and asked for costs on an attorney and client basis against the council. In answering affidavits by Watson and one Fava on behalf of the council it B was alleged that the respondent Van der Walt was unreasonable in refusing to agree to the stay of the warrant of execution and to accept the amount tendered by the council. In view of Van der Walt's opposition to the application costs on an attorney and client basis were asked for against him. The return day of the interim order was by agreement between the parties extended to 10 May 1974.

In the meantime the magistrate's court in Johannesburg, on the C application of the council, granted an order amending the garnishee order of 22 November 1973 so as to limit the liability of the council, as garnishee, to Van der Walt, the judgment creditor, to the sum of R312 (which the council held on behalf of Absolom), and setting aside the warrant of execution as being incompetent and having been incorrectly D issued on 20 March 1974 against the council since no judgment had been granted against the latter on 16 January 1974 when the garnishee order was confirmed. The council was, however, ordered to pay the costs of the application on an opposed basis because the court was of the opinion that the whole cause of the application arose from the negligence of the council's employees before the issue of the warrant of execution. An E appeal by the council to the Transvaal Provincial Division against the award of costs was upheld and Van der Walt, the judgment creditor, was ordered to pay the costs of the application on an attorney and client basis and also to pay the costs of the appeal.

F To revert to the situation in Cape Town. As a result of the setting aside of the warrant of execution by the magistrate's court in Johannesburg, it was no longer necessary for the council to proceed in the magistrate's court in Cape Town with the application for a stay of the warrant of execution. On 10 May 1974, ie the extended return day of the interim order, the matter came before May, the magistrate, in Cape Town. A Mr G Nurek appeared for the council while Van der Walt, the execution creditor, was represented by a Mr Conradie. Udwin did not appear in the matter. Mr Nurek retendered the sum of R312 which had been paid into court on 29 March 1974. The only outstanding question to be determined related to the costs occasioned by the application for a stay of the warrant of execution H issued against the council in the magistrate's court, Johannesburg. After hearing argument on this issue magistrate May made the following order:

"In that payment was made into court and in that Mr Udwin, on behalf of plaintiff, knew he could not succeed, it would be decidedly unjust logically, legally or ethically, not to place the garnishee in the position he would have been left in had he not been disturbed. The costs of this application in Cape Town awarded to the garnishee to be paid by plaintiff on an opposed scale.

Monies paid into court to be paid to plaintiff on demand to the clerk of the court."

Joubert JA

With a view to noting an appeal to the Cape Provincial Division against this award of costs Van der Walt on 20 May 1974 requested magistrate May A to furnish his reasons for judgment. On 28 May 1974 he furnished them. In the course of his written reasons magistrate May made the following remarks which Udwin claimed to be defamatory of him, viz:

"(i)

'Mr Udwin then sought payment in execution for the sum of R483,60 plus costs, well knowing that garnishee did not hold B that much and admitting to have advice of that fact; yet despite such knowledge claiming more than R312.'

(ii)

'Mr Udwin for judgment creditor was informed and knew full well that garnishee was responsible for the monies it held on behalf of judgment debtor only.'

(iii)

'Despite such knowledge he refrained from informing the court in Johannesburg that garnishee did not hold the full amount C owing by debtor - such silence no doubt moving the court to grant a garnishee order and writ for the full amount.'

(iv)

'The court awarded costs on an opposed scale and seriously considered costs de bonis propiis but withheld from such course in that this court has no knowledge as to Mr Udwin's personal decisions in this matter.

This court is astounded at the amoral attitude on behalf of judgment creditor and shocked at the cavalier treatment of garnishee, and D moreover surprised that this matter has not yet been placed before the Law Society of the Transvaal.'"

Suffice it to say that Van der Walt's appeal to the Cape Provincial Division against the award of...