LAW OF DELICT

Damages — Where

a person has a legal right to perform an act,

andif he performs that act in the ordinary

mode

of doing so and nevertheless causes

damage

to another person, he is not consideredtohavedone anywrong.

Summary:

Plaintiff sued defendants for damages for assault, lossof afenceand contumelia. Plaintiffhaderected a fence on land to which he had no claim and

when

the land was allotted to defendant No. 2, the latter removed the fence.

The

fencing material subsequently disappeared.

Defendants consented to damages of £1 for the assault but denied liabilityin respect of the rest of the claim.

In a majority judgment, with which Ashton,

Member,

dissented:

—

Held: That once defendant No. 2wasallotted the land he had a right toremovethefencingencroachingonto his land.

Heldfurther: That ifa person has a legal right to perform an act andifhe performs the actin theordinary

mode

of doing so and nevertheless causes

damage

to another person, he is

not consideredtohavedone anywrong.

193

Held further: That it is clear from ^the evidence that any loss suffered by plaintiff was entirely due to his

own

dilatoriness in not removing the fencing material which he

knew

was lyingaboutonthe land.

Appeal from the Court of the Native Commissioner, Pieter- maritzburg.

Steenkamp (President):

—

In his

summons

plaintiff claimed from the four defendants (1)

£10 damages for assault, (2) £25 being the value of a fence and

(3) £10 contumelia.

During thecourse ofthe proceedings thefollowing note appears on the record:

—

“Mr. Feetham informs Court that it has been agreed by the parties thatan offerof £1 by defendantsin respectofthe assault threat be recorded andthe plaintiff accepts this offer, further thatplaintiffabandonshis claimfordamagesfor con- tumelia, and that the only point at issue

now

^is the

amount

of damages to which plaintiff is entitled in respect of the fence.

Mr. Theron formally admits that the fence was pulled

down

byhis clients and ^acceptsthe onus ofleading evidence in this connection.”

During arguments in this Court Mr. Feetham conceded that the words ^“if any^” should have been inserted after the word

“damages” where that word appears in line 9 of the above passage.

On

the claim for damages for assault judgment was entered for £1 and inrespect ofthedamages tothe fence for £4. 2s. and costs.

An

appeal has

now

been noted to this Court

on

the following grounds:

—

“_1.

The

learnedJudicial Officer erred

—

(a) in not taking into consideration that the plaintiff had actedwithout anycolour of rightor authority in tres- passing upon the defendant’s property and in erecting the fence;

(b)in not taking into consideration the evidence that the defendants,in removingthefence didso afterreceiving the consent and permission of their

own

tribal autho- ritiestodoso;

(c) in not accepting that the preponderance of probability exists, and was proved by the defence evidence. That the timber of which the fencewas

made

wasreturned by the defendants and accepted by the plaintiff and that, plaintiff therefore, was not entitled to any damagesatallin respectofthe said fence;

{d) in rejecting the defence evidence which is to the effect that the plaintiff himself removed the timber to his kraal after the fence had been demolished and the timbers placed by defendants near the plaintiff’s

boundary

when

they became aware of the fact that thetimberbelongedtotheplaintiff;

2.

The

defendants furtheraver

—

(i) that there isa strong probabilitythat theevidence for thedefenceistruein all themain andessentialfeatures and that of the plaintiff unsatisfactory, unreliable and uncorroborated, in no

way

disproving or refuting the evidence givenbythedefendants;

194

(li) that on the premises contained in paragraph 1 and 2 (i) hereof, the plaintiff was not entitled to judgment as granted and, therefore, not entitled to any costs as the

amount

that isdue to himisout of all proportion to the

amount

claimed by him in the summons, alter- imtively that the Judicial Officer erred in overlooking the fact that both plaintiff (in trespassing onto defen- dants’ property and there erecting a fence, where he had never been granted any right or permission to do so) and defendants (in demolishing the fence) were

at fault and equally responsible for the resultant liti-

gayion (sic) and, that being so, no order as to costs shouldhave beenmade.”

The

facts are that defendant No. 2 had been informed at the Chief’s placethata certain land had beenallotted to him by the Native Commissioner. There was a fence on this land and the following Saturday defendant No. 2 pulled

down

the fence and piled the fencing materials on vacant ground near his land and next to plaintiff’s ground. Plaintiff, however, states that the materials were scattered about but for the purposes of this case

itdoes notseemmaterialwhatthepositionwas.

After removing the fence the defendant No. 2 ploughed the ground.

There isa conflict of evidence as to whetherplaintiffremoved the fencing material after defendant No. 2 had demolished the fence. Defendant No. 2 states that he saw ^plaintiff doing so.

Plaintiff denies this but the fact remains that plaintiff

knew

the fencing materials were there. After defendant No. 2 received the

summons

hewent to the Induna and Plaintiffwascalled toa conference. Defendant No.2stateshe onlybecame aware ofthe owner to the fencing material

when

he received the summons.

Plaintiffadmitsthaton thedayof theconference thepoleswere lying where the fence had been and to his knowledge they were there fortwo weeks and disappeared during the third week.

He

alsoadmits that after the fencewas pulled

down

he did nothing aboutthepolesandthoughthewouldwaitfor the case.

Plaintiff’s

own

witness states that after the conference the Induna, plaintiff and he went to inspect the poles which were lying around.

There isnoquestion that theland belonged to the plaintiffand the evidence that the land had been allotted to defendant no. 2

is not refuted.

1

am

of opinion that once defendant No. 2 was allotted the land he had the right to remove the fencing encroaching on to his land.

He

had the legal right to perform that act and if he performs the act in the ordinary

mode

of doing so and neverthe- less causes

damage

to another person, he is not considered to have done any wrong (see Principles of South African

Law

by Wille,page492, third edition).

Defendant No. 2 is the only person

who

had the right to that land and the mere fact that plaintiff withdrew his action in respect of contumelia, which could onlyhave succeeded if defen- dant No. 2 had acted unlawfully, goes to show that only defen- dant No. 2 hada right to that land. Even ifI

am

wrong in

my

conclusions and assuming that defendant No. 2 acted wrongly in

removing the fence, it became plaintiff’s duty to mitigate the damages by removing the fencing material to a place of safety.

He

failed to do so and the only damages he might have been entitled to if defendant No. 2 had no right to remove the fence was the damages for infringing any rights which he might have hadandwhich,according totherecord,hehadnot.

195

I wish to return to the admissions

made

during the course oftheproceedings. At firstblush it would appearthat defendant No. 2 admitted he had infringed plaintiff’s rights and that the only issue in dispute was the value of the fencing materials but in view ofthe statement

made

by plaintiff’s Counsel during the course of arguments in this Court, the question to be decided was whether plaintiff had suffered any damages due to

some

wrongful act on the part of defendant No. 2. It is clear from the evidence thatanyloss suffered byplaintiffwasentirely dueto his

own

dilatoriness in not removing the fencing material which he

knew

waslyingabouton the land.

In the circumstances in

my

opinion theappeal succeedsandthe Native Commissioner’s judgment should be altered to read as follows:

—

“(1)Judgment for plaintiff by consent for £1 damsges for assault against all four defendants, jointly and severally the one paying the others to be absolved.

(2) Balance of claimfordefendants.

(3)

No

orderas to costs.”

De

Sousa(Member): Iconcur.

Ashton (Permanent Member): Dissentiente: I regret that I

am

unabletoagree withthemajority.

The

evidenceis full of contradictions and discrepancies butthe issue was narrowed

down

at the hearingon the22nd July,at page 16ofthe record

when

Mr. Feetham,for the plaintiff,said that the parties had inter alia agreed that “ the only point at issue

now

^is

the amount ofdamages towhich plaintiffis entitled in respect of the fence”. Mr. Theron for the defendants thereupon admitted the fence was pulled

down

by his clients and accepted the onus of leadingtheevidenceinthisconnection.

It was argued that all that the parties agreed to and admitted in relation to the fence was that Defendants had pulled it down.

But there would have been no point in such a restricted admis- sion by defendants at that stage.

To my

mind it was admitted that there was a right to damages if any damages in fact were sufferedand defendantstook uponthemselves theonusof proving that no

damage

was suffered by plaintiff.

They

attempted to discharge this onus by showing that plaintiff collected the fence materialsbutinthis theyfailed.

The

land on which the fence was erected was claimed by the 2nd defendant to be his

own

and when he found the fence he reported to the Chief

who

said he had been allotted it by the NativeCommissioner. Thereupon he pulled it

down

without con- sulting the plaintiff to

whom

the land previously belonged. It

was only when he gota

summons

that he wentinto thematter at a conference at the Induna’s kraal. It was sought to show that the fencing materials were collected by plaintiff but the evidence led did not establish this.

What

became of the materials is not clearbuttherewas no proofthatplaintiffrecoveredthem. Defen- dants’ actions were unauthori.scd and they must be taken to be liable for the consequences of their wrongful acts. I think the Acting Assistant Native Commissioner was right and his assess- mentofthevalue ofthematerialscannot be quarreledwith.

To my

mindtheappeal should be dismissed withcosts.

ForAppellant: Adv. J.H. Niehaus, instructedby D. B. Theron.

For Respondent: Adv.R.C. C. Feetham, instructed byJ. R. N.

Swain.

196

NORTH-EASTERN NATIVE APPEAL COURT.