Griesel v Liebenberg (201/2007) [2008] ZAFSHC 39 (24 April 2008)

Griesel v Liebenberg (201/2007) [2008] ZAFSHC 39 (24 April 2008)

The court held that while the conduct of the spoliator is wrongful in terms of the possessory remedy of mandament van spolie, the common law does not recognise a delictual claim for general damages based solely on an act of spoliation. The rationale is that public policy does not allow a person to benefit from their own unlawful activity, and the mandament van spolie is intended only to restore possession, not to confer additional rights or damages. Furthermore, the respondent failed to discharge the onus of proving all elements of delict, particularly fault, as the appellant lacked the necessary intention or consciousness of wrongfulness. Therefore, the Magistrate erred in awarding...

Citation
[2008] ZAFSHC 39
Parties
Appellant: Robin Geraldine Griesel; Respondent: Lenré Liebenberg
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 April 2008
Case Number
201/2007
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal allowed with costs; Magistrate's order set aside and substituted.
Judges
H.M. Musi, S.P.B. Hancke
Legal Topics
Mandament Van Spolie, Self Help, Wrongfulness, General Damages, Delictual Liability
Civil Procedure Delict Mandament Van Spolie Self Help Wrongfulness General Damages Delictual Liability

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Robin Geraldine Griesel

Appellant

Lenré Liebenberg

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether an act of spoliation by an owner against an unlawful possessor constitutes a delict entitling the spoliatus to claim damages.
  2. 2 Whether the Magistrate was correct in awarding general damages to the respondent for shock and post-traumatic stress caused by the removal of the horse.
  3. 3 Whether the appellant is liable for the stable costs incurred by the sheriff.

Ratio Decidendi

The court held that while the conduct of the spoliator is wrongful in terms of the possessory remedy of mandament van spolie, the common law does not recognise a delictual claim for general damages based solely on an act of spoliation. The rationale is that public policy does not allow a person to benefit from their own unlawful activity, and the mandament van spolie is intended only to restore possession, not to confer additional rights or damages. Furthermore, the respondent failed to discharge the onus of proving all elements of delict, particularly fault, as the appellant lacked the necessary intention or consciousness of wrongfulness. Therefore, the Magistrate erred in awarding...

Court Disposition

Appeal allowed with costs; Magistrate's order set aside and substituted.

Orders

  • The plaintiff's main claim succeeds with costs.
  • The plaintiff is liable for the stable costs of 'Honey Girl' from the date the sheriff removed the horse from the defendant's possession.