Republic of South Africa 

(western cape high court, cape town)

In the matter between:

And
IAN LESLIE McDONALD						Respondent

binns-ward j:

[1] The respondent instituted action against the appellant in the Knysna Magistrates' Court under two case numbers. The actions were tried together and a single judgment was delivered by the trial court. The appellant comes before this court on appeal against that judgment.

[4] Only a very brief summary of the relevant facts is required. They were not materially in dispute. Indeed, at the hearing of the appeal only the issue of quantum of damages was argued by counsel for the appellant, notwithstanding the absence of formal abandonment of the contentions advanced on the issue of liability in the heads of argument.

[6] By prior arrangement with the appellant the respondent spent some time, spread over four days, at the appellant's house during June 2006 packing his personal possessions, which had been removed by the appellant from the main body of the house to a basement while the respondent had been away attending a wedding at St. Francis Bay and thereafter visiting a parent in Durban. The respondent had very little contact with the appellant during the period he was packing up his possessions; and indeed that remained the position during the ensuing months to November 2006. What little contact the parties had during that time was through intermediaries who were engaged to assist in trying to resolve the proprietary consequences of the break-up. In this regard it should be mentioned that the respondent apparently believed that he was entitled for some form of financial settlement from the appellant; and indeed litigation in that connection subsequently ensued in the High Court.

Kahn and an assistant were the two men who forcefully relieved the respondent of the vehicle in the shopping mall parking lot on 24 November 2006.
[8] It was also not in dispute that the respondent had a previous, albeit superficial, acquaintance with Kahn and also that he knew that Kahn was a longstanding acquaintance of the appellant. It was not surprising in the circumstances that the respondent should suspect that the appellant might have been behind the assault on him by Kahn in the course of forcibly dispossessing him of the vehicle

[12] The appellant's evidence as to the alleged role of her erstwhile attorney is inherently improbable. No attempt was made to confirm the evidence by the evidence of the attorney concerned. While this in isolation might have been understandable because of the unlikelihood that the legal practitioner would own up to such deviance; it is nevertheless significant that there was no indication placed on record that the appellant, or her current legal advisors had taken any steps to draw to the attention of the Law Society what would, if the appellant were to be believed, constitute grossly dishonest and unethical conduct by her erstwhile attorney. It is also significant that the appellant did not withdraw the proceedings after the respondent had delivered a detailed opposing affidavit and even went to the lengths of engaging in the drafting of a replying affidavit, albeit one not deposed to before proceedings were eventually withdrawn in February 2007, with no tender as to costs. As already mentioned, even if all the allegations about the conduct of her then attorney, Ms Leslie Swart, were true, they afforded no justification for the appellant to allow the proceedings to go ahead. It is clear to me that she did so as a means to obtain the release to her from police impoundment of the vehicle taken by Kahn from the respondent

[16] In the heads of argument filed on behalf of the appellant, counsel addressed argument against the award based on the assault on the respondent, but aside from the issue of quantification of damages advanced very little, if anything, of substance by way of argument on the malicious institution of proceedings or defamation claims. As mentioned, at the hearing counsel confined her oral argument to the issue of quantum, advisedly so in my view.

[25] Taking into account all the circumstances, including the consideration that the respondent's behaviour in regard to refusing to acknowledge that the appellant had given notice of her wish to have her vehicle returned to her appears to have been somewhat disingenuous and therefore served as a measure of provocation, I consider that an award of R5 000 in damages would have been appropriate. The award of R80 000 granted by the magistrate was quite obviously excessive; and by so gross a margin as to impel interference.

[27] The magistrate also made an order directing that the appellant was liable for the respondent's costs in the proceedings instituted by the appellant under the Domestic Violence Act. In doing so he purported to be acting on his understanding of a judgment in those proceedings by Magistrate van der Merwe in case no. G462/2006, delivered on 25 May 2007. It may be inferred from this that the issue of costs in the Domestic Violence Act proceedings had been argued before Mr van der Merwe. In terms of s 15 of the Domestic Violence Act a court may only make an order as to costs against any party if it is satisfied that such party has acted frivolously, vexatiously or unreasonably. The proceedings before the court in the Domestic Violence Act matter are only incidentally before us, with the result, amongst other considerations, that we do not have before us the judgment of Magistrate van der Merwe. In my view we are therefore not equipped to entertain an appeal against the costs order in those proceedings. If the appellant wishes to pursue that aspect, she must do so by appeal or review in that case. No relief will therefore be granted in respect of the attack on the order by the magistrate in case no. G462/2006.

[29] It is also necessary, in my view, that the matter of how the proceedings in terms of the Domestic Violence Act came to be instituted in the manner they were be investigated by the Law Society. It is undesirable that the serious allegations made about the conduct of Ms Leslie Swart in this connection be left undetermined. As mentioned, there are aspects about the application which raise concerns about the role of Ms Swart, quite apart from the issues arising from the respondent's evidence. These are the relief sought in regard to the return of the vehicle held by the police and the fact that the supporting affidavit purports to have been deposed to before Ms Swart herself as the applicant's attorney. Without being understood to anticipate any findings in respect of these or any other aspects of the matter, it is desirable that the Law Society be directed to investigate. A direction to that effect will be included in the order to be made.

Order

1.      The appeal is upheld to the extent set out below:
(a) The award of damages by the trial court in Knysna Magistrates' Court case no. 1058/07 in the sums of R50 000 and R30 000, respectively, in respect of the (i) the injurious institution of proceedings in terms of the Domestic Violence Act and (ii) defamation is set aside and an award in the globular amount of R25 000 is made in substitution therefor.

2.	
3.	No order is made in respect of the appellant's complaint about the costs order made by the magistrate in case no. G462/2006 on the grounds that the proceedings between the parties in terms of the Domestic Violence Act are not before this court in this appeal.
4.	The appellant is awarded the costs of the appeal, save that the appellant shall be permitted to recover only 70 percent of the costs in respect of the preparation and perusal of the record.
5.	
6.	The Director of the Cape Law Society is requested to advise the Registrar in writing of the outcome of the investigation directed in terms of paragraph 5 of this order.

						Judge of the High Court

BAARTMAN J:
I concur.

							Judge of the High Court