Soffiantini v Salmon

• Jurisdiction: South Africa
• Judge: Jennett J
• Judgment Date: 01 August 1956
• Citation: 1956 (4) SA 156 (E)
• Court: Eastern Districts Local Division

A Jennett, J.:

Plaintiff claims that defendant wrongfully, unlawfully, maliciously and without reasonable or probable cause or care, caused the issue on 10th December, 1954, of a reception order against him under the provisions of the Mental Disorders Act, 38 of 1916, as amended. In respect of that act and his consequent detention in a mental hospital he B claims £1,000 as damages. His summons was issued on 21st March, 1955, and his declaration was filed on 21st May, 1955.

Defendant now applies for a stay of the proceedings in terms of sec. 76 (3) of that Act, alleging that:

(i)

Plaintiff has no reasonable grounds for alleging want of good faith or reasonable care on the part of the defendant in making the application for a reception order, and alternatively,

(ii)

C Plaintiff's action against defendant is frivolous or vexatious.

In support of this application affidavits were filed by defendant, a Miss Howells, one Alex McLean, the magistrate of East London, the physician superintendent of the Komani Hospital, Queenstown and certain other persons. Plaintiff replied in a lengthy affidavit and filed also an affidavit by Miss Sheena Hewitt.

D At the outset Mr. Addleson for plaintiff applied for the striking out of certain paragraphs in the affidavit filed by the defendant on the ground that they contained hearsay evidence. It is unnecessary to decide on this application.

E The first question for decision is where the onus lies. For plaintiff it was argued that defendant must prove that 'there is no reasonable ground for alleging want of good faith or reasonable care'. For defendant the submission was that plaintiff must show the existence of reasonable ground for alleging want of good faith or reasonable care.

The argument for defendant proceeded thus; - the burden of proving F lack of good faith or reasonable care is expressly placed on plaintiff in terms of sec. 76 (2), therefore it remains on him at all stages of the proceedings against defendant.

There is no doubt but that the effect of secs. 76 (1) and 76 (2) is to prevent plaintiff succeeding in his action unless he proves either want of good faith or lack of reasonable care in defendant. Penrice v Dickinson, 1945 AD 6 at p. 15.

G Sec. 76 (3) provides a special form of relief to a defendant. It enables him to obtain a stay of proceedings against him, upon application by him to the Court in which these proceedings are taken. In terms of the section...