Preller and Others v Jordaan

• Jurisdiction: South Africa

Preller and Others v Jordaan
1956 (1) SA 483 (A)

1956 (1) SA p483

Citation	1956 (1) SA 483 (A)
Court	Appellate Division
Judge	Centlivres CJ, Van Den Heever JA, Fagan JA, De Beer JA and Reynolds JA
Heard	October 27, 1955
Judgment	December 3, 1955

Flynote : Sleutelwoorde A

Fraud and undue influence — 'Undue influence' constitutes a ground for restitutio in integrum in Roman-Dutch Law — Whether transaction induced by fraud or undue influence void or voidable — Test is B whether party seeking restitution intended to enter into transaction at the time — Where sale only voidable purchaser can pass ownership and party seeking restitution cannot claim vindicatio against third parties — Appeal — Costs — Party succeeding on appeal on point not taken below — Effect.

Headnote : Kopnota

Per FAGAN, J.A., CENTLIVRES, C.J., DE BEER, J.A., REYNOLDS, J.A., C concurring; VAN DEN HEEVER, J.A., dissenting: The grounds of restitutio in integrum in the Roman-Dutch Law are wide enough to cover the case where one person obtains an influence over another which weakens the latter's resistance and makes his will pliable, and where such a person then brings his influence to bear in an unprincipled (gewetelose) manner in order to prevail upon the other to agree to a prejudicial (skadelike) transaction which he would not normally have entered into of his own D free will. The words 'undue influence', or such words as 'onbehoorlike beïnvloeding' ('improper influence'), constitute an altogether suitable name for the ground of action which exists in these circumstances. It is not possible to draw a line with mathematical clarity between what is 'proper' (behoorlik) and what is 'improper' (onbehoorlik) in this connection.

In determining whether a transaction induced by fraud or undue influence is void or merely voidable. the test is whether the person seeking to have it set aside entered into the transaction wilfully and knowingly, E with the intention to bring about the legal consequences which it entailed, or not. If so, then it is a valid transaction until it is declared invalid, although it may be voidable at his instance on the ground that he was induced to enter into it in an unlawful manner. If, however, it was not his intention to enter into the transaction (indien egter sy wil nie met die handeling bepaard gegaan het nie), then the transaction (apart from whatever effect estoppel might have) has no legal consequences.

An elderly farmer in his declaration against his former medical F practitioner and the latter's son and daughter averred that at a time when he was old and sick and bodily, spiritually and mentally weak and exhausted, he had been influenced in an improper and unlawful manner by his doctor, who was also his adviser, to give and transfer to him four farms to be administered by him for the benefit of the farmer's wife and the labourers on the farm, and that he would never have done so had he not been so weak and exhausted and totally under the influence of the doctor. The declaration further alleged that the doctor had subsequently G transferred one of the farms to his son and two of them to his daughter, and claimed against the doctor an order declaring that the authority to pass transfer which he had signed and the transfer was null and void and an order for the retransfer of the farm which the doctor had retained in his name into the plaintiff's name. Against the son and daughter he claimed retransfer of the farms registered in their names respectively. Defendants had excepted to the declaration as disclosing H no cause of action on the ground that 'undue influence' was not a good ground for setting aside the transaction in Roman-Dutch Law and a Provincial Division had dismissed the exception with costs. In an appeal, it was contended for the first time on behalf of the son and daughter that, as the transaction was voidable but not void and as transfer had been passed to them, the plaintiff could not claim back these farms from them by vindicatio.

Held, per FAGAN, J.A., CENTLIVRES, C.J., DE BEER, J.A., REYNOLDS, J.A., concurring, VAN DEN HEEVER, J.A., dissenting, that the exception taken by the doctor had rightly been dismissed.

1956 (1) SA p484

Held, further, however, as it appeared that the farmer had intended to have the farms transferred to the doctor, and as ownership had therefore passed to him and thereafter, in the case of the farms transferred to the son and daughter, to the latter respectively, that the exception taken by them succeeded with costs in the lower Court but with no order as to the extra costs occasioned by their being joined in the proceedings in the Appeal Court.

The decision in the Orange Free State Provincial Division in Jordaan v. A Preller and Others, confirmed in part and reversed in part.

Case Information

Appeal from a decision in the Orange Free State Provincial Division, dismissing an exception to a declaration. The nature of the pleadings appears from the judgment of FAGAN, J.A.

H. J. Edeling, Q.C. (with him F. Badenhorst, Q.C. and Miss L. van der Heever), for the appellants: Undue influence is not a ground for restitutio in integrum in Roman-Dutch law. The only grounds for restitutio in this system are metus, dolus, justus error, absentia, minoris aetas, laesio enormis, capitis diminutio; see Grotius, 3.48.3 - 14; 3.52.1; Voet, 4.1.26; van der Linden, 1.18.10; van Leeuwen, 4.42.4; C van Leeuwen, Cens. For., 1.4.40.10; Huber, Hed. Rechtsgel, 4.37.12. In addition to these grounds, what may seem to be a discretionary ground is mentioned by van der Linden, 1.18.10; van Leeuwen, 4.42.4; van Leeuwen, Cens. For., 1.4.40.10; Huber, 4.37.12; Voet, 4.6.8. Van der Linden, D 1.18.10, relies on Grotius, 3.48 and 52, who does not support him. Van Leeuwen relies on D. 4 and Cod. 2.53 (54), and these also do not support such a general clause. The only relevant passages in Bk. 4 of the Digest are 4.1.3 and 4.6.1 (cf. D. 4.6.28.2 and 4.6.29.9) and the only relevant passage in Cod. 2.53 (54) is 2.53 (54).1 and 2. Huber himself limits this 'general clause' to justus error and in his elaboration of the E topic in 4.41.5 - 7, he expressly negatives the idea that under this general clause the Court is given the discretion to annul any transaction it might regard as unfair though not falling within the group of recognised grounds for restitution. Voet, 4.6.8 et seq., does not deal with contract at all. The Romans regulated by statute transactions between persons in special relationships to each other e.g. guardian and ward, agent and principal; see D. 18.1.34.7 read with Inst. F 1.21.3 and D. 26.8.5.2 and C. 4.38.5. In dealing with the relationship of doctor and patient, the corpus juris prohibits certain types of transactions only; cf. C. 10.52.9. The transaction prohibited is one that in any event would fall within the ambit of the actio quod metus causa. Van der Linden, 1.15.1, in propounding it as a rule of law that no patient may make a donation to his doctor, is wrong. Voet, on whom he G relies, contradicts him at 2.14.19. The only transactions prohibited between doctor and patient are those in which the doctor's conduct is fraudulent or extortionate; see C. 10.52.9 and cf. D. 50.13.3. Van Wesel, Ad. Novel. Const. Ultraj, ad art. 15 para. 10, misconstrues the above passage from the Code. The attitude of South African Roman-Dutch H law, then, is that a person who serio ac deliberato animo makes a contract, is bound thereby. Our Courts do not interfere to protect people from their own ignorance, weakness or folly; see D. 4.4.16.4; Tjollo Ateljees v Smal, 1949 (1) SA at p. 871. The 'undue influence' of English law has been referred to in many of our cases and many modern text-books take it for granted. But 'law taken for granted often fails when its sources are reached'; see Dyason v Ruthven, 3 S. at p. 292. In the B

1956 (1) SA p485

great majority of the cases, no mention of 'undue influence' was necessary, since the facts clearly revealed either metus or dolus, recognised in Roman-Dutch law as a ground for avoiding a contract induced thereby; see e.g. Stieger v Union Government, (1919) 40 N.L.R. 221; Mauerberger's case, 1948 (4) SA 902; Yates v Estate Yates, 20 A S.C. 35. Only in Natal has the 'doctrine' been actually employed; see Armitage's Trustees v Allison, 1911 NPD 88; Ratanee v Maharaj, 1950 (2) SA 538. But these cases are clearly in conflict with Roman-Dutch law; cf. Huber, 4.38.5; Voet, 4.2.11; Cod. 2.20.6; Cens. For., 1.1.13.8, and see de Wet & Yeats, Handelsreg (2nd ed., pp. 36 - 40). This Court has certainly never granted restitutio on grounds of undue influence B alone; cf. Van Pletsen v Henning, 1913 AD 82; Armstrong v Magid, 1937 AD 260. Only in the dissenting judgment of DE WET, J.A., at p. 276, was the view adopted that the doctrine is not inconsistent with our law. But this would seem to be an erroneous view. This Court will have no hesitation in deciding that, despite references purporting C to accept the 'doctrine', the 'doctrine' forms no part of our law; cf Dyason's case, supra; Harris and Others v Minister of the Interior, 1952 (2) SA at pp. 452 - 54. There are valid objections to the acceptance of the doctrine in our law. The English law required merely unfair dealing as a ground for setting aside a contract; cf. Smith v Kay, 7 H.L.C. 779; In re Fry, 40 Ch. at p. 324; Baker v Monk, 4 D.J. & D S. 388; Mutual Finance Ltd v Wetton & Sons, 1937 (2) A.E.R. 657. And sometimes not even that; see Turner v Collins, 7 Ch. App. at pp. 329, 340; Bullock v Lloyds Bank, 1954 (3) A.E.R. 726. Nothing but uncertainty in law can arise from such boundless elasticity. In Roman-Dutch law the basic principles of metus and dolus are clear-cut E and wide enough to protect people from all force or fraud, but not from their own weakness or ignorance; see Tait's case...