Tödt v Ipser

• Jurisdiction: South Africa
• Judgment Date: 31 March 1993
• Citation: 1993 (3) SA 577 (A)

Tödt v Ipser
1993 (3) SA 577 (A)

1993 (3) SA p577

Citation	1993 (3) SA 577 (A)
Court	Appellate Division
Judge	E M Grosskopf JA, Milne JA, Eksteen JA, Nienaber JA and Van Coller AJA
Heard	March 9, 1993
Judgment	March 31, 1993

Flynote : Sleutelwoorde G

Delict — Injuria — Wrongful or unlawful arrest — Not requiring proof of animus injuriandi in full sense of term as including consciousness on part of defendant that he is acting unlawfully.

H Delict — Injuria — Wrongful or unlawful arrest and imprisonment — Estate of claimant for damages under administration order in terms of s 74 of Magistrates' Courts Act 32 of 1944 — Creditor, an attorney not included in list of claimant's creditors, applying for and being granted application in terms of s 74P(1) for leave to initiate proceedings against claimant, such leave being limited to institution of action and taking of I judgment — Leave specifically excluding right to execute while administration order in existence — Creditor taking judgment against claimant and nonetheless proceeding in terms of s 65A et seq — Such proceedings culminating in claimant's arrest and civil imprisonment — Court holding that effect of conditions upon which s 74P(1) application J granted being that

1993 (3) SA p578

A creditor not having judgment which could sustain valid execution or proceedings under s 65A — Institution of s 65A proceedings constituting unlawful act by creditor — Similarly, issuing of warrant leading to arrest and imprisonment suffering basic defect of lack of enforceable B judgment debt — Magistrate's committal order under s 65F wholly void since there was no judgment capable of execution — Claimant thus entitled to damages for unlawful arrest and imprisonment.

Headnote : Kopnota

An action for wrongful arrest does not require proof of animus injuriandi in the full sense of the term as including consciousness on the part of C the defendant that he is acting unlawfully.

The dictum in Smit v Meyerton Outfitters 1971 (1) SA 137 (T) at 139D approved and applied.

The appellant owed the respondent, an attorney, an amount in respect of fees. When the appellant's estate was placed under an administration order in terms of s 74 of the Magistrates' Courts Act 32 of 1944 the respondent was not included as one of her creditors. His attempts to be included in D the list of creditors participating in periodic distributions made by the administrator proved unsuccessful. He applied in terms of s 74P(1) of the Act for leave to initiate proceedings against the appellant in order to be placed on an equal footing with other creditors who had judgments in their favour. In his supporting affidavit he stated that he accepted that 'such leave be limited to the institution of action and the taking of judgment, and that I will not be free to execute whilst the administration order is in existence'. [Section 74P(1) provides that 'no creditor shall have any E remedy against the debtor or his property for collecting money owing, except . . . by leave of the court and on such conditions as the court may impose' for as long as an administration order is in force.] The application was granted; the respondent issued summons and later obtained default judgment against the appellant. Despite this, the respondent's efforts to be included in the list of the appellant's creditors failed once more and, after 14 months, he commenced proceedings against her in terms of the provisions of s 65A et seq of the Act, which proceedings F culminated in the respondent's forwarding to the messenger of the court a warrant for the appellant's arrest and a request to the messenger that he collect 'the full oustanding balance . . . together with your charges'. When the warrant was served the appellant's husband offered to pay the amount claimed. The messenger refused to accept the money, arrested the appellant and transported her to prison in his patrol van. She remained in prison until her release the next morning after her husband had paid the amount claimed at the office of the messenger.

G The appellant claimed damages from the respondent for malicious, alternatively unlawful or wrongful, arrest and imprisonment. A Provincial Division dismissed the claim holding, in relation to the alternative cause of action, that the claim could not succeed because the messenger had not acted as the respondent's agent in arresting the appellant and the warrant had been issued only after a magistrate had exercised his discretionary power to order the appellant's committal under s 65F. The appeal was confined to the claim on the basis of wrongful arrest. H

Held, that the effect of the conditions on which the respondent's application in terms of s 74P(1) had been granted, in particular that he 'would not be free to execute' while the administration order was in existence, had been that the respondent had not had a judgment which could have sustained a valid execution or valid proceedings under s 65A: there had been no enforceable judgment and there had, accordingly, been no basis for the proceedings under s 65A.

I Held, further, that the institution of s 65A proceedings in the absence of an enforceable judgment debt had constituted an unlawful act on the part of the respondent.

Held, further, that the respondent's issuing of the warrant of arrest which ultimately had led to the appellant's arrest and imprisonment had thus suffered from the basic defect that there had been no judgment to support it.

Held, further, since conscious unlawfulness was not required for liability on the grounds of unlawful deprivation of liberty, that it was irrelevant whether the respondent had thought that he had been entitled in law to act J as he had.

1993 (3) SA p579

A Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) applied.

Held, further, as to whether the order of the magistrate under s 65F (ordering the appellant's committal) had been void and, if not, whether that would make a difference to the respondent's liability, that, according to common-law authorities, judgments were void in only three types of cases: where there had been no proper service, where there had been no proper mandate and where the court lacked jurisdiction. B

Held, further, however, that the old authorities, dealing as they did with judgments generally, were not of decisive importance for the present purpose: the case in this instance concerned, not a judgment settling a substantive lis between the parties, but an order made in the course of and for the purpose of execution.

Held, further, that it was inconceivable that the magistrate's order could have had any validity where there was no judgment capable of being executed and that, even if it were that there had been no lack of C jurisdiction in the strict sense in such a case, such order had to be wholly void.

Held, further, as to the respondent's argument that, even if the committal order had been void, he could not be held liable because the appellant's arrest and imprisonment had resulted from an act of the messenger of court over whom he had had no control and who had, in fact, acted contrary to his instructions by not accepting payment from the appellant's husband at the time of service, that the true position was that the respondent had D authorised and instructed the appellant's arrest and imprisonment but had expected supervening events beyond his control to prevent it at the last moment, and when that had not happened the appellant had duly been arrested and imprisoned in terms of the unlawful authority and instructions given to the messenger by the respondent.

Held, accordingly, that the respondent was liable in damages for the appellant's unlawful arrest and imprisonment.

E The decision in the Cape Provincial Division in Tödt v Ipser reversed.

Case Information

Appeal from a decision in the Cape Provincial Division (Howie J). The facts appear from the judgment of E M Grosskopf JA.

The appellant, in person, referred to the following authorities, the F heads of argument having been drawn by C W Rosenthal: Newman v Prinsloo and Another 1973 (1) SA 125 (W) at 127H-128A, 128D-129D; Jones and Buckle The Civil Practice of the Magistrates' Courts in South Africa 8th ed vol 2 at 324-5 and the authorities there cited; Begeman v Cohen 1927 TPD 674 at 677-8; Kelmann v Brown & Co 1916 EDL 85 at 96; Mabaso v Felix 1981 (3) SA 865 (A) at 872H, 873E; Joubert and Others v Venter 1985 (1) SA 654 (A) at G 696D-H and the authorities there cited, 697A-H; Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A); Ramsay v Minister of Police and Another 1981 (4) SA 802 (A) at 817E-818B, 818E-819C; Iyman v Natal Witness Printing & Publishing Co (Pty) Ltd 1991 (4) SA 677 (N) at 683F; May v Udwin 1981 (1) SA 1 (A); Dantex Investment Holdings (Pty) Ltd H v Brenner 1989 (1) SA 390 (A) at 396-7; Boberg (1971) 88 SALJ 57 at 69; Cohen Lazar & Co v Gibbs 1922 TPD 142 at 144, 147; Joosub v J I Case SA (Pty) Ltd 1992 (2) SA 665 (N); Boberg The Law of Delict at 652; S v De Blom 1977 (3) SA 513 (A) at 529H, 531H-532A; Neethling, Potgieter and Visser The Law of Delict (1989) at 109. I

T D Potgieter for the respondent referred to the following authorities: Cole's Estate v Olivier 138 CPD 464 at 468; Cohen Lazar & Co v Gibbs 1922 TPD 142 at 149; Weeks and Another v Amalgamated Agencies Ltd 1920 AD 218; O'Connor v Marais (1906) 16 CTR 929; Majiet v Zuckerman and Carroll (1907) 24 SC 608; R L Weir & Co v De Lange 1970 (4) SA 25 (E); Newman v Prinsloo J and Another 1973 (1) SA 125 (W); Hart v Cohen (1899)

1993 (3) SA p580

A 16 SC 363; Boshoff v Van Zyl 1938 CPD 414 at 418, 419 in fine; Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A); Moaki v Reckitt & Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 104B, 105H, 106A; Groenewald v Minister of Justice 1973 (2) SA 480 (O)...