Meevis v Sheriff, Pretoria East

• Jurisdiction: South Africa
• Judge: De Villiers J
• Judgment Date: 25 February 1998
• Hearing Date: 22 November 1994
• Docket Number: 5194/93
• Citation: 1999 (2) SA 389 (T)
• Counsel: WRC Prinsloo (with him RG Beaton) for the plaintiff FH Terblanche for the defendant
• Court: Transvaal Provincial Division

De Villiers J:

The plaintiff claims damages from the defendant in his personal capacity, alternatively in his capacity as the appointed sheriff. At this stage only the merits are in issue, an order having been made in terms of Rule 33(4) of the G Uniform Rules of Court that the quantum of plaintiff's claim is to be decided later.

The plaintiff's main claim is based upon the following averments:

1.

On about 5 June 1990 plaintiff undertook to furnish the defendant in his official capacity with security in the sum of R12 500 in jewellery as guarantee for the due appearance of one Smithers. H

2.

Pursuant to her undertaking, as aforesaid, the plaintiff duly handed certain jewellery to the defendant.

3.

The defendant duly accepted the said jewellery for safekeeping, pending the outcome of the action against Smithers and undertook to return the jewellery to the plaintiff in good condition after the case had been disposed I of.

4.

Judgment in the case was given on 2 November 1991.

5.

On or about 17 January 1992 the plaintiff duly demanded return of her jewellery but defendant failed and/or refused to comply with the demand.

6.

At all relevant times the jewellery was valued at R51 595, which J

De Villiers J

was the reasonable market value thereof. (This is set out in para 8 of plaintiff's particulars of claim.) A

7.

Defendant is in possession of the plaintiff's jewellery and is liable to return same, alternatively to pay plaintiff the value thereof, but despite demand has refused to do so.

In his plea the defendant, in essence, admits that the jewellery was to be retained by him until the action against Smithers B had been disposed of, but avers that he was robbed of the jewellery, without any negligence on his part, on 16 January 1992. Defendant admitted the plaintiff's demand on 17 January 1992.

At the trial it became common cause that an armed robbery took place on the aforementioned date. C

Mr Beaton, who appeared for the plaintiff, submitted that the defendant was in mora in regard to the return of the jewellery and that accordingly the defendant was liable to plaintiff on her main claim.

It is clear, however, that the defendant was not in mora at the time when the robbery took place. As indicated, the D jewellery had to be returned when the action against Smithers had been disposed of. It is common cause that the action was disposed of on 21 November 1991.

The date of the judgment in the action was not a dies certus an ac quando. Accordingly there was no mora ex re as E from 21 November 1991. See De Wet and Van Wyk Kontraktereg en Handelsreg 5th ed at 158. This was not a case of dies interpellat pro homine. A demand was accordingly necessary in order to place the defendant in mora. As indicated, the demand only took place after the robbery. The main claim can accordingly not be sustained.

The plaintiff's alternative claim was only introduced on the first day of the trial. The defendant did not object to its F introduction. Later, when the plaintiff applied for an amendment of the alternative claim, it was again granted without any objection from defendant's side.

In the alternative claim plaintiff avers that defendant wrongfully attached the jewellery on 21 November 1991 and that, G when plaintiff on 17 January 1992 demanded its return, defendant was either unable or unwilling to return same to her. In the premises it is averred that defendant is liable to plaintiff for her loss, being the value of the jewellery flowing from defendant's failure as aforesaid and the said wrongful attachment. (The value of the jewellery appears from para 8 of H the plaintiff's particulars of claim.)

I raised with Mr Beaton whether the plaintiff's alternative claim discloses a cause of action in view of the fact that plaintiff is claiming patrimonial damage, as set out in para 8 of her particulars of claim, whereas no express averment is I made in regard to fault (intent or negligence). Compare Neethling Law of Personality (1996) at 72—6.

It is trite law that the same set of facts may give rise to different causes of action, for example if an attorney is defamed as being dishonest he may have a claim based on the actio injuriarum in respect of the defamation, as well as a claim based upon the actio legis Aquiliae in respect of the pecuniary loss he has suffered as a result of the defamation. J

De Villiers J

Mr Beaton conceded that the plaintiff's alternative claim was one based upon patrimonial loss and not for satisfaction A ('genoegdoening'). To my mind, this concession was rightly made.

The question is, accordingly, whether our law recognises a claim for patrimonial loss flowing from a wrongful attachment where no fault (intent or negligence) is averred as an element of such claim. B

Mr Beaton could not justify such a claim on principle. He acknowledged that fault is an element of an actio legis Aquiliae, but relied on the judgments of Weeks and Another v Amalgamated Agencies Ltd 1920 AD 218; Smit v Van Wyk 1966 (3) SA 210 (T) and Trust Bank van Afrika Bpk v Geregsbode, Middelburg 1966 (3) SA 391 (T) for the argument that the alternative cause of action is sui generis. C

The averment of a wrongful attachment may imply that the defendant acted intentionally. Compare Brown v Hoffman 1977 (2) SA 556 (NC) at 559B—E and Foulds v Smith 1950 (1) SA 1 (A) at 11. If that is so a claim for patrimonial loss caused by the attachment would be justified.

Mr Beaton argued, however, that intent or negligence is not necessary to found liability in a claim of this nature. D

Neethling (op cit at 202), relying on, inter alia, the cases referred to by Mr Beaton, puts it thus:

'In the case of wrongful attachment of property the conduct concerned takes place without any justification or judicial authority whatsoever. Such wrongful conduct makes the defendant liable without further ado. Fault (intent or negligence) is unnecessary to found liability. E Accordingly the defendant cannot raise mistake or absence of consciousness of wrongfulness as a defence - he is liable without fault.'

I respectfully agree with this analysis. In footnote 539 at 203 the learned author says: F

'This negation of the intent...