The Protesting Dominus: A Reconsideration in the Light of German Law

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Citation: (2009) 20 Stell LR 517
• Author: CJ Maxwell
• Pages: 517-532

517

THE PROTESTING DOMINUS: A

RECONSIDERATION IN THE LIGHT OF

GERMAN LAW*

C J Maxwell

BA LLB LLM LLD

Associate Professor, University of the Western Cape

1 Introduction

The question whether a party may bring an action against someone

whose affairs he has managed again st the latter’s express wishes has long

been a vexed one.1 Even in Roman law, the question was disputed until

Justinian ruled out an action i n such circumstances.2 Martinus, one of the

quattuor dottores, later suggested that it should be permitted.3 Subsequent

academics who considered the question fell into two camps, some adhering

to the Roman position4 while others, some very inue ntial, followed the

lead of Marti nus.5 In Sout h Africa, while the earliest decisions apparently

disallowed an action,6 an action was granted to the gestor acting agai nst the

protest of the dominus in Colonial Government v Smith and Company.7 The

action in question is u sually regarded as having been an enrichment action,

* This ar ticle is an adaptation of part of ch 2 of my d octoral thes is Aspects of Multi-Part y Enrichmen t in

South Afr ican Law: A Comp arison with Ge rman Law UCT (20 06) I wish to thank the N RF, the DAAD

and UWC for financ ial support which faci litated my research I also wish to than k Professor Reinhard

Zimmerm ann of the Univer sity of Regensburg and th e Max-Planck-Institu t für ausländ isches und

internat ionales Privat recht in Hamb urg for his k ind and genero us hospitality which made it possible for

me to complete my the sis

1 For the h istorical background, see eg Van Zyl Negotiorum Gestio in South African Law (1985) 105ff;

De Vos Verry kingsaanspree klikheid in die Suid -Afrikaanse Reg 3 ed (1987) 40, 84, 214-215; Son nekus

Unjustifi ed Enrichment in South African Law (2008) (transl Rhoodie) 257ff; Visser Unjustified Enrichme nt

(2008) 572-573; Odendaal v Van Oudtshoorn 1968 3 SA 433 (T) 437ff; Standard Bank Finan cial Services

Ltd v Taylam (Pty) Ltd 1979 2 SA 383 (C) 387ff

2 W hitty & Van Zyl “Unauthor ized Management of A ffairs (Negot iorum Gestio)” in Zi mmermann ,

Visser & Reid (eds) Mixed Legal S ystems in Comp arative Perspective: Propert y and Obligat ions in

Scotland and Sou th Africa (2004) 366 391-392 Also see Van Zyl Negotior um Gestio 105; Ode ndaal v Van

Oudtshoorn 1968 3 SA 433 (T) 437G; D 17 1 40; C 2 19 24; De Vos Verrykingsaan spreeklikheid 27; Rubin

Unauthoriz ed Administrati on (Negotiorum G estio) in South Afri ca (1958) 29-30

3 Vi sser Unjustifie d Enrichment 572

4 Se e, eg, De Vos Verrykingsaanspreeklikheid 59; Huber Heed endaegse Rechtsge leertheyt 3 28 8; Van der

Keessel Th 505; Van der Keessel Pra electiones ad Gr 3 3 30

5 D e Vos Verrykingsaanspreeklikhei d 59; Visser Unjustified Enric hment 572; Voet 3 5 11; Groenewegen ad

C 3 32 5

6 Un ion Bank v Beyers, Union Ba nk v Du Toit 1884 3 SC 89; R yneveld v The Wine Depôt 1833 2 Menz

185 (In t he latter case, t he court allowed on e Brand to appear on beha lf of the Wine De pôt Company

as n egotiorum gestor but only because the opposing party consente d, and not because it in any way

“admitte d that he had any right to app ear in that capacit y if any objection had been ma de to his so doing”

(185) This case i s cryptical ly short, an d it appears that the ins titution of neg otiorum gest io was used i n

circumst ances analogo us to the Roman law, ie Brand acted as the dominus’s representative in the leg al

proceedi ngs Such circum stances would not arise today b ecause nobody is “permitted to raise or defen d

an act ion on a nother’s behalf and in his na me, or to represent another in legal proceedings ” without a

mandate (W hitty & Van Zyl Unauthor ized Management 383)

7 1901 18 SC 380 392

(2009) 20 Stell LR 517

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namely the extended actio negoti orum gestorum,8 and it is this action t hat

will form the focus of the discu ssion that follows.

2 Colonial Government v Smith and Company9

Smith and Company was a rm th at imported a nd traded i n explosives.10

With the informal con sent of the Port Elizabeth Town C ouncil, it stored its

explosives in magazines sit uated on the outskirts of the town. Later, with the

expansion of the town and the advent of the Boer War, the council regarded the

magazines as a source of da nger to the public. It accordingly request ed Smith

and Company to remove the magazines to a differ ent site. In spite of repeated

requests and ultimatums from the council and the govern ment, the company

did nothing to comply with the demands of the authorities. Eventually, despite

the formal protest of Smith and Compa ny, the government had the explosives

placed on a ship for safe storage. The governme nt sued for the cost of removing

and storing the explosives.

Regarding t he removal of the explosives t o the ship, Smith and Company

argued, inter alia, that the explosives had been moved without its consent and

despite it s protest.11 T he government, on the other hand, argued that it had

acted as a negotiorum gestor and th at it should accordingly be reimbu rsed for

its expenses. The cour t stated that

“the usual conception of a negotiorum gestor is one who, without express mandate, carries on the

business, or who protects the property of another who is absent or who is incapable of acting for

himself. As a rule, if the owner is present, or is unwilling or forbids the business being done, the

unauthorised agent cannot force his services upon such owner.”12

It went on to hold,13 however, that a mala de possessor could claim

compensation for useful expenses, that the govern ment in thi s case (though

not a mala de possessor) should not be in a worse position than a mala de

possessor, and therefore that the governme nt’s claim for the cost of removal

should succeed.14 (The government’s claim for the costs of st orage was also

granted, but on a d ifferent basis. The cou rt allowed the claim because the

goods were stored with the implied consent of Smith and Company, as they

were free to move the explosives to another location at any time but chose not

to do so.)15

As said above, this case is usu ally cited as authorit y for t he proposition

that a gestor who acted domino prohibente is allowed to sue the dominus

8 Se e Van Zyl Negotior um Gestio 108-109; Whitty & Van Zyl “Unauthorized Manag ement” in Mixed Legal

Systems 392-393; Standard Bank Financ ial Services v Taylam 1979 2 SA 383 (C) 393-394

9 1901 18 SC 380

10 See 388ff for the fac ts

11 390

12 392

13 Citing Voet 3 5 11

14 393

15 394 There was al so a claim for the cost of st oring other explosive s which had been plac ed on the ship by

Smith and Com pany itself The cou rt also dealt w ith this as a cont ractual ques tion ie the goods ha d been

stored with t he company’s consent (394)

518 STELL LR 2009 3

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