GARWE JA:
[1] This is
an appeal against the decision of the High Court, Harare, dismissing with costs
a claim for delictual damages arising out of the unlawful eviction of the
appellant from certain rented premises in Harare and attachment of its tools of
trade. The High Court, whilst finding
for the appellant on the question of wrongfulness, concluded that there was
insufficient evidence on whether the respondent had acted negligently in
causing the eviction of the appellant and consequently dismissed the claim.
FACTUAL BACKGOUND
[2] A. Adam
& Company (Private) Limited (“the respondent”) instituted two separate
actions in the High Court for the eviction of Ritenote Printers (Private)
Limited (“the first appellant”) from two premises it had rented out to the
first appellant on the basis that the first appellant had breached the lease
agreement in failing to pay rentals. The
actions were subsequently withdrawn and re-instituted in the Magistrates'
Court. The Magistrates' Court granted an order, inter alia, for the eviction of the first appellant from the two
premises.
[3] Dissatisfied
with the outcome, the first appellant appealed against that order to the High
Court. Believing that the noting of the
appeal would not suspend the order of eviction, the first appellant accordingly
filed an application for the stay of execution pending the determination of the
appeal. The Magistrate, erroneously
believing that the common law principle that the noting of an appeal
automatically suspends the operation of the order appealed against, dismissed
the application on the basis that the applicant could not apply for the stay of
execution of an order which had already been stayed by the noting of the
appeal.
[4] Section 40 (3) of the Magistrates' Court Act [Chapter 7:10] provides that where
an appeal has been noted, the Court may direct either that the judgment shall
be executed upon notwithstanding the appeal or that the execution thereof shall
be suspended pending the determination of the appeal. The corollary to this provision is that a party
that seeks to have the discretion exercised in its favour has to make an
application justifying the grant of such discretion.
[5] Contrary to the above provision, the
respondent, through its legal practitioners, did not apply for leave to execute
the judgment granted in its favour following the noting of the appeal. The
respondent's legal practitioners simply instructed the Messenger of Court to
proceed to evict the first appellant and attach its property, with which
instruction the Messenger of Court complied.
[6] Upon eviction, the first appellant applied to
the High Court for an order setting aside the eviction and attachment of its
property. The High Court, having noted
that the Magistrates' Court was not a court of inherent jurisdiction, came to
the incorrect conclusion that since the noting of the appeal did not suspend
the judgment of the Magistrates' Court, the respondent was entitled to execute
the judgment.
[7] In a judgment between the parties handed down
as SC 15/11, CHIDYAUSIKU CJ came to the conclusion that the High Court was
wrong in the above regard and that the respondent was, in terms of the law,
obliged to make an application to execute notwithstanding the noting of the
appeal. Not having made such an
application, the respondent was not entitled to execute. Consequently the learned Chief Justice made
an order restoring the first appellant's occupation of the leased premises and
directing the respondent not to sell any of the attached items pending the
determination of the appeal.
[8] On 6 July 2011, this Court allowed the appeal
filed by the appellants with costs, set aside the judgment of the High Court
and substituted the same with an order granting the provisional order sought. In
August 2012, the appellants then instituted an action for payment of delictual
damages before the High Court. The
action was not successful and is the subject of the present appeal.
PROCEEDINGS BEFORE
THE HIGH COURT
[9] Before
the High Court, the appellants averred that the eviction of the first appellant
from the leased premises was wrongful, unlawful and intentional. They further averred that, consequent upon
such eviction and attachment of some of first appellant's tools of trade, the
appellants had suffered certain patrimonial losses and, in respect of the
second appellant, certain damages for inuria. They accordingly sought payment of various
delictual damages by the respondent.
[10] In its plea, the respondent denied acting
either intentionally or negligently. It
further averred that it did not, in any event, foresee any harm being
occasioned as it genuinely believed in the validity and competence of the order
of the Magistrates' Court. The
respondent also denied having been aware of the invalidity of the writ of
ejectment issued at the instance of its legal practitioners.
[11] During
the trial before the High Court, the respondent's director told the court that
the respondent had been represented in the Magistrates' Court by a legal
practitioner who had failed to appreciate the need to apply for leave to
execute before instructing the Messenger of Court to proceed with the
execution. He told the court that he did
not himself handle the legal issues of the company but left this in the hands
of their legal practitioner. As director
of the respondent, he assumed that the practitioner was competent and consequently
relied on his advice. At no stage did he
or anyone else representing the respondent know that the grant of leave was a
pre-requisite to the execution. Whatever
was done was at the instance of the respondent's legal representative.
[12] In its
judgment, the court a quo accepted
that the respondent had left all issues legal in the hands of its legal
practitioner and that the eviction was the result of a lack of appreciation, on
the part of the legal practitioner, of the requirement to seek leave to execute
first before such execution was effected.
The court further found that it was wrongful of the respondent to evict
the first appellant in these circumstances, notwithstanding that such wrongful
conduct was based on ignorance of the law and reliance on the advice of its
legal practitioner. On the fault
requirement, the court was of the view that this was neither specifically
pleaded nor proved. No averment of
intention or negligence had been made.
No evidence had been led to show deliberate infliction of harm with full
knowledge that the eviction would result in harm. Consequently, the court a quo reached the conclusion that the summons and declaration did
not disclose a cause of action cognisable at law and accordingly dismissed the
claim with costs. Hence this appeal.
GROUNDS OF APPEAL
[13] In their grounds of appeal, the appellants allege
that the court a quo erred in four
respects. Firstly, it misdirected itself
in concluding that the appellants had not pleaded and proven fault when the
appellant had in fact pleaded and proved intention, which is an element of fault. Secondly, it erred in failing to come to the
conclusion that the unlawful eviction of the first appellant was deliberate and
therefore intentional. Thirdly, it erred
in failing to appreciate that the respondent had acted through its legal
practitioner and therefore could not be absolved from the consequences of the
actions of the legal practitioner. Lastly, it erred in failing to appreciate that
there was an evident distinction between the claim brought by the first
appellant and that brought by the second appellant.
APPELLANTS'
SUBMISSIONS ON APPEAL
[14] In
submissions before this Court, the appellants have argued that there are two
issues that fall for determination. The
first is whether fault was alleged and proved in the court a quo. The second is
whether the actions of the legal practitioner of the respondent are
attributable to the respondent itself. They
have submitted that the declaration clearly states that the respondent
wrongfully, unlawfully and intentionally procured the eviction of the first
appellant. Since the respondent is
liable for its legal practitioner's conduct in effecting an unlawful eviction,
the court a quo was therefore wrong
in separating the actions of the respondent from those of its legal
practitioner when the relationship between the two was one of principal and agent. The appellants further submitted that, in
terms of the law, the respondent is liable for the conduct of its lawyer. It is the legal practitioner who proceeded to
flout laid down procedures in executing a decision which had been appealed
against without the leave of the Court.
RESPONDENT'S
SUBMISSIONS ON APPEAL
[15] In its
submissions before us, the respondent has accepted that the court a quo was wrong in stating that the
element of fault was neither specifically pleaded nor proved. Fault in the form of intention was indeed
pleaded in respect of the claim under the Aquilian action but not in respect of
the claim under the actio injuriarum, which
lacked the level of particularity required by the law. The respondent further submitted that it was
not proper for the appellant to allege both intention and negligence, as one
excludes the other. In its pleadings,
the first appellant based its claim on intention as a fault factor but in
evidence relied on negligence.
[16] The
respondent has also argued that the court was fettered from making a finding of
fault based on either negligence or intention on the part of the respondent's
legal practitioner because the latter was not party to the suit. Such misjoinder was therefore fatal.
[17] Lastly
the respondent drew the attention of the court to the fact that the appellants
had conceded that the eviction had emanated from the advice of its legal
practitioner. However, fault on the part
of respondent's legal practitioner or the respondent itself was not pleaded or
proved. Moreover the relationship between the respondent and its lawyers was not
simply one of principal and agent but rather one of mandate.
ISSUES FOR
DETERMINATION
[18] There
are two central issues that fall for determination in this appeal. The issues are, firstly, whether the
respondent is delictually liable for the misconduct of its legal practitioner
and secondly, whether the appellants pleaded and proved the two important
elements under the Aquilian action, namely, wrongfulness and fault. Before considering these issues however, it
is necessary to restate the relevant facts of this case, to the extent that
such facts are either common cause or not seriously in dispute.
THE AGREED FACTS
[19] In the
court a quo, as before this Court,
the parties were agreed that the action instituted by the appellants arose out
of the improper issue, by the respondent's legal practitioner, of a writ of
ejectment and attachment against the first appellant. Indeed, before the court a quo, it was common cause that, in order to execute upon the
judgment granted in its favour but which had been appealed against, the
respondent required the leave of the court to execute that judgment. This the respondent's legal practitioner had
not applied for, apparently out of a lack of appreciation of the correct legal
position in the circumstances.
[20] It was
common cause that the respondent had left its affairs in the hands of its legal
practitioner, believing that he would professionally handle those affairs. The fault in not applying for leave and
thereafter in instructing the Messenger of Court to proceed to evict the first
appellant and attach its property was that of the legal practitioner. The respondent was not involved in the making
of this decision nor was it aware of the fact that the eviction and attachment
were unlawful. In short the respondent
had not done anything beyond instructing its legal practitioner to represent it
in the ensuing litigation.
WHETHER A PARTY IS
LIABLE FOR ITS LEGAL PRACTITIONER'S DELICTS
[21] In my
view, this question is central. What is
the relationship between the respondent and its legal practitioner in terms of
our law of delict? Is it simply one of
principal and agent as submitted by the appellant?
[22] The
position in English law is clear. A legal
practitioner is his client's agent. What
he does or does not do binds his client.
The act of the legal practitioner is the act of the client. This is the position both in contract or
delicit.
[23] The
above position has been stated and restated in various English cases. In Collett
v Foster 1857 2 H + N 356, 157 ER 147 the court stated at p 150:-
“I have always
understood that, where a party employs an attorney, and judgment is obtained
and execution issued, and that execution set aside on the ground of
irregularity, then the client is liable for any act of trespass under that
process. The writ is a justification to the officer but not to the party. The
attorney who has gone beyond his duty becomes responsible with his client. An
attorney is a peculiar kind of agent; in the Court he is put in the place and
stead of the client, and is authorized to take proceedings on his behalf, but
the client, who rarely knows what proceedings the attorney takes, is
responsible. This principle has been so long settled and laid down in the books
that I do not wish it to be understood that I entertain the slightest doubt
upon this subject………… But the general rule in the case of attorney and client
is, that when legal process issues, and a trespass is committed, and the writ
is afterwards set aside, the principal becomes liable. The contest generally
is, not whether the client, but whether the attorney is liable.”
[24] In
Roman-Dutch law, within the field of contract, the position is not different. Contractual
liability depends on the presence of privity which exists in most cases. In such cases the client's liability for a legal
practitioner's conduct is the same as if the client had performed the service
himself. For this reason, in proceedings
before the Court, the conduct of the lawyer binds the client – see, for example,
the remarks of my sister judge ZIYAMBI JA in Machaya v Muyambi SC 4/05.
[25] The
position in delict is however different.
A situation where a client instructs a lawyer to handle his affairs and
leaves everything to his discretion and the legal practitioner then commits a
delicit cannot be determined by reference to the employer – employee
relationship because the lawyer is not an employee of the client. He is a professional who has tendered his
services for a fee. Such an agreement is
one of mandatum or lastgeving. In such a contract, a legal practitioner, as
mandatary (mandatarius), undertakes
to perform legal work on behalf of the client, who is the mandator (mandator).
[26] Commenting
on the nature of this relationship, J.R. Midgley states in his text, Lawyers
Professional Liability, at p 192:-
“… one of the
features of a lawyer's mandate is that the obligation to obey instructions is
varied and the lawyer is granted sufficient independence to fall outside the
client's control. As Atiyah points out “prima
facie it is clear that a solicitor in private practice is an independent
contractor in his relationship with his clients, and it might therefore have
been assumed that a client could not be vicariously liable for anything done by
his solicitor, even though it be done in his name and on his behalf.”
[27] However,
there have been conflicting opinions, both in academic and judicial circles, as
to whether or not, in principle, a mandator is vicariously liable for his
mandatary's delicts – J. R Midgley, op
cit, at p 189.
[28] In
Eksteen v Van Schalkwyk en'n Ander 1991 (2) S.A 39 (T), the court confirmed
that an attorney – client relationship is based on mandate. Following a thorough
review of Roman and Roman-Dutch law, the court was unable to find any instance
in which a mandator was held vicariously liable for the delict committed by a
mandatary. Under Roman law, a mandatary
was not the agent of the mandator. See Totalisator Agency Board, OFS v Livanos 1987
(3) SA 192 W, 201.
[29] However
in Barclays National Bank Ltd v Traub,
Barclays
National Bank Ltd v Kalk 1981 (4) S.A 291 (W) the mandator was held
liable for the delict committed by an agent on the basis that the agent's
knowledge could be imputed to the principal.
This case followed English and American law where clients have been held
liable for the improper institution and conduct of legal proceedings – J.R
Midgley, op cit, p 191.
[30] In Eksteen v Van Schalkwyk en'n Ander, (supra), the court accepted the position
to be that, where a client had not instructed an attorney to commit a delict or
where he was not able to foresee that the attorney would commit the delict, the
client would not be liable.
[31] Neethling.Potgieter.Visser
in their book Law of Delict, 7th ed, also argue
that the mandator is only liable for damage caused by the mandatary if the
former himself also committed a delict (at p 391).
[32] J. R
Midgley, op cit, concurs. The learned author states at pp 190-191:-
“Roman-Dutch law ……
indicates that the mandator could be liable in delict, but only if he were a
party to the conduct or where the mandator himself were at fault in that he
should reasonably have foreseen the mandatary's conduct. South African law ……… reflects this position
…”
[33] The learned author further opines:-
“… outside an
employment relationship, the crucial question is whether or not the person who
committed the delict is subject to another's right of control. If he is not,
the position is similar to that which obtains when an independent contractor
commits a delict.”
[34] In Tendere v Municipality of Harare 2004
(1) ZLR 495 (S), a full bench decision, this Court has held that a judgment
creditor is not vicariously liable for the actions of the Messenger of Court
and that it is only where the judgment creditor or his attorney plays an active
role in the unlawful attachment of the property by the Messenger of Court and
makes the messenger's actions his own that he or his attorney can be held
delictually liable on the same basis as the messenger.
[35] J. R
Midgley, op cit, at p 192, has further
stated:-
“… common sense
surely dictates that a client should not be held liable for a lawyer's
delicts. Whatever the rationale for
vicarious liability – be it the benefit, the identification, the solvency or
the risk theory, or social convenience and rough justice – justifications
applicable to employment relationships do not apply with equal force in cases
where persons obtain professional services. In most instances the rationale for
vicarious liability is to provide the injured plaintiff an opportunity to sue
someone who is not a person of straw: the defendant, instead of being an
individual, is a business enterprise which is capable of distributing its
losses over all its customers. The
converse occurs where professional services are involved: the person who is in
the position to spread the risk is the mandatary, not the mandator. Also, one
usually engages a professional because one wishes to avoid doing things
incorrectly. One relies upon the skilled person to avert loss to another. To
hold the client liable for the conduct of the professional is contrary to one's
sense of fair play. It is neither equitable nor reasonable to distribute the
loss in such a manner, which accounts for the reluctance of English courts to
hold clients liable and Atiyah's view that such vicarious liability is
questionable.”
[36] The learned author further comments at p
192:-
“… the legal
convictions of the community would not favour vicarious liability in lawyer and
client cases. A client should therefore
not be held liable for a lawyer's delicts.”
[37] I am
inclined to agree entirely with the above sentiments which are, at any rate,
consistent with South African case law and, to a large extent, our own. The position then must be that a client is
not liable for the delict committed by his legal practitioner, unless he makes
common cause with such lawyer or otherwise instructs him to proceed
notwithstanding an obvious irregularity in the papers.
[38] In the
particular circumstances of this case therefore, the onus was on the appellants to plead and prove wrongfulness in the
sense that the respondent had conducted itself in a morally blameworthy way or
otherwise made itself party to the delict.
THE APPELLANT'S CLAIM A
QUO WAS BASED ON THE LEX AQUILIA AND ACTIO INJURIARUM
[39] The
appellant's claim in the court a quo was
for payment of various amounts in damages for unlawful eviction. It is clear that the first appellant's claim
was based on the lex Aquilia whilst
the second appellant's claim was based on both the lex Aquilia and the actio
injuriarum.
[40] The
requirements for the Aquilian action are well established. They are:
-
Voluntary conduct which is
-
unlawful or wrongful (wrongfulness)
-
Capacity
-
the conduct must have led to physical harm to person or property and thereby to
financial loss or have caused purely financial loss which does not stem from
any physical harm to person(Loss)
-
the loss must have been inflicted intentionally or negligently (fault or culpa),
and
-
there must be a casual link between the conduct and the loss (causation).
[41] Under
the actio injuriarum the plaintiff
must plead and prove an intentional infringement of a personality right. Inuriae
which occur regularly have come to be known by specific names, such as
defamation, wrongful attachment of property, abuse of legal proceedings, etc,
but essentially remain species of the genus
inuria. Both intention and
wrongfulness must also be pleaded.
THE
BASIS OF THE APPELLANTS' CLAIM
[42] The
appellants' claim in the court a quo was
predicated on the common cause fact that the writ of ejectment and attachment
was null and void. In the declaration
and further particulars supplied, the appellants alleged that the respondent
had “wrongfully, unlawfully and intentionally procured the eviction of the
first plaintiff from certain premises” and that, as a result, both plaintiffs
had suffered certain losses. The
eviction was said to be “a wrongful, deliberate and intentional affront” to the
second appellant and therefore constituted an inuria.
[43] Although
it was common cause that it was the respondent's legal practitioner who had
been at fault in failing to appreciate the provisions of the law before
instructing the Messenger of Court to evict the first appellant, no basis was
pleaded upon which the respondent would be said to have been delictually liable
for the conduct of its legal practitioner in these circumstances. There was no suggestion that the respondent,
well knowing or realising that there was need for leave to execute to be sought
and granted first before the eviction of the first appellant, nevertheless
directed its legal practitioners to proceed in the absence of such leave. There
was also no suggestion that the respondent, aware that the writ of ejectment
and attachment was irregular, nevertheless directed its legal practitioners to
proceed and instruct the Messenger of Court to evict the first appellant.
[44] It is
also apparent from the papers filed in the court a quo that both appellants sought to claim the damages jointly. No attempt was made to separate the first
appellant's claim from that of the second appellant. For example the claim for losses suffered by
reason of the failure to trade are claimed by both appellants. So too is the claim for payment of the sum of
$450 000 being the diminution in the value of the first appellant's business.
[45] The
position is now settled that a plaintiff claiming delictual damages under the lex Aquilia must not only allege but
prove, inter alia, culpa. In alleging such culpa, the party must give sufficient particulars of the mental
status of the offending party so that the latter knows what case he has to
meet. Failure to allege culpa or to provide particulars of such culpa is fatal as the claim would not
disclose the plaintiff's cause of action – Border
Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 298 (S) 131 (H), 139
D-E; Metallon Corp Ltd v Stanmaker Mining
(Pvt) Ltd 2007 (1) ZLR 298 (S), 299 E-G.
WHETHER
WRONGFULNESS AND CULPA WERE ALLEGED AND PROVED
[46] I agree
with the respondent that the appellants alleged, in the declaration, that the
respondent had wrongfully, unlawfully and intentionally procured their
eviction. However, no particulars of such
wrongfulness or intention were provided.
The eviction was further said to have been a deliberate, wrongful and
intentional affront to the person of the second appellant and that it
constituted an inuria. Again, no particulars were provided in this regard and
the specific inuria allegedly committed by the respondent was neither pleaded
nor identified.
[47] Clearly
the bald averments made on behalf of the appellants were not sufficient to
inform the respondent of the case that he was being called upon to meet.
[48] Taking
into account the current position of our law on the liability of a client for
delicts committed by a legal practitioner, it was incumbent on the appellant to
allege how, in the circumstances of this case, the respondent's conduct had
both been wrongful and intentional. The
conduct of the respondent would have been wrongful if its state of mind had
been legally blameworthy or reprehensible. For this purpose, wrongfulness is
determined by reference to public policy or the legal convictions of the
community whilst culpa or fault is
determined by reference to whether it intended that result or foresaw the
possibility of harm and whether it should have taken steps to prevent the
occurrence of such harm.
[49] The
declaration filed by the appellant in the court a quo did not indicate how, having left all its affairs in the
hands of its legal practitioner and, not having interfered with the legal
practitioner's use of discretion in any way, the respondent's conduct would
have been considered wrongful. Nor was
there any indication in the papers as to how, in these circumstances, the
respondent's conduct could be said to have been intentional or even negligent.
[50] From
the facts of this case, it is clear that the appellants were labouring under
the misapprehension that, once the fact was established that the legal practitioner
was acting on behalf of the respondent and the legal practitioner had
unlawfully instructed the Messenger of Court to evict the appellants, then the
appellants did not need to prove anything else. In this they were clearly wrong. Whilst, as already noted earlier in this
judgment, a legal practitioner provides professional legal services on behalf
of a client, the client is not, in our law, liable in delict for any wrongs
committed by the legal practitioner in the course of providing such services,
unless the client himself also commits a delict in the process.
[51] Indeed
the court a quo was at pains to point
out that “proof of fault would have required evidence of more than wrongfulness
or unlawfulness …” and that “there was no evidence before the court that
proceeding to evict the first plaintiff on the back of two court orders was an
unreasonable manner to proceed on the part of the defendant.”
[52] In the
absence of an averment and evidence that the respondent had done more than just
brief its legal practitioner, neither wrongfulness nor culpa were alleged or proved. In short, in the absence of such averment the
appellants had no cause of action.
DISPOSITION
[53] It is
clear that the appellants had no cause of action against the respondent, in the
absence of an allegation and proof that the respondent had done more that instruct
its legal practitioners to handle its affairs. The respondent's conduct in
enlisting the services of its legal practitioner to secure the eviction of the
first appellant was not wrongful.
[54] In the
circumstances, the appeal must fail.
[55] It is
accordingly ordered as follows:-
“The
appeal be and is hereby dismissed with costs.”
HLATSHWAYO
JA: I agree
GUVAVA
JA: I agree
Messrs
Hamunakwadi, Nyandor & Nyambuya, appellant's legal practitioners
Messrs Venturas & Samkange, respondent's legal practitioners
