HERSCHEL V MRUPE 1954 (3) SA 464 (A)

Source:
South African Appellate Division Reports (1910 to date)/SA APPELLATE REPORTS – CHRONOLOGICAL LISTING 1910 to March 2024/1954/Volume 3
(August)/HERSCHEL v MRUPE 1954 (3) SA 464 (A)
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HERSCHEL v MRUPE 1954 (3) SA 464 (A) F
1954 (3) SA p464
Citation 1954 (3) SA 464 (A)
Court Appellate Division
Judge Centlivres CJ, Schreiner JA, Van Den Heever JA, Hoexter JA and Fagan JA
Heard March 4, 1954
Judgment May 25, 1954
Annotations Link to Case Annotations
Flynote : Sleutelwoorde
Negligence What amounts to Erroneous information bona fide supplied as to name of insurer Wasted costs incurred in suing wrong insurer
Insured not liable therefor in damages.
Headnote : Kopnota
To enable the plaintiff (appellant) to recover, in terms of the Motor H Vehicle Insurance Act, 29 of 1942, damages sustained through the death
of her husband in a collision between two vehicles one of which was the property of the defendant (respondent), the plaintiff's attorney by
letter requested the defendant to advise her of the name of the insurance company so that a communication could be addressed to it. The
defendant's attorney informed the plaintiff that S. was the name of the insurance company. This
1954 (3) SA p465
information, though given in good faith, was incorrect. Plaintiff through her legal adviser sent a letter of demand to the S. company claiming
damages. Throughout the negotiations for a settlement with the S. company it was accepted that the vehicle had been insured with the S.
company. These negotiations broke down and the plaintiff, without making further enquiries, instituted action against the S. company. When the
company's plea was received it was revealed for the first time that the A S. Company was not the insurer of the vehicle. Plaintiff withdrew her
action against the S. Company. She paid £10 10s. in settlement of its costs and had in the meantime wasted £102 0s. 10d. in costs between
attorney and client. Plaintiff instituted action against the defendant for the recovery of these wasted costs, averring in her particulars of claim
'that as the result of the information given by the defendant to plaintiff, which was given wrongfully and negligently, the plaintiff had suffered
damages amounting to £112 10s. 10d.. being attorney and client B costs in the action instituted against the S. company'. In her plea the
defendant denied negligence and pleaded two alternative defences, viz. contributory negligence and that any loss suffered by appellant had
been caused by the S. company in failing to deny ab initio that it was the insurer. A magistrate's court entered judgment for the plaintiff with
costs, which judgment was altered on an appeal to one of absolution from the instance with costs. In a further appeal by the plaintiff, leave
having been granted by the Court a quo,
C Held (CENTLIVRES, C.J., dissenting), that the appeal should be dismissed.
Held, per CENTLIVRES, C.J., that the respondent was under a duty towards the appellant to exercise due care in seeing that she correctly gave
the name of the company.
Held, further, that on the facts the respondent had acted negligently in telling her attorney to reply to the enquiry in the terms in which the
reply had been couched.
D Held, further, that there was no substance in the plea of contributory negligence: the appellant was entitled to act, without further enquiry,
upon the information given by the respondent.
Held, further, that the S. company had acted within its rights to wait until plea before disclosing its defence and consequently the appellant was
not entitled to recover from that company any part of the damages suffered.
Held, per SCHREINER, J.A., that the test was whether a reasonable man E would, not could, have foreseen the harm: the situation must be
such that the reasonable man not only would have foreseen the harm but would have 'governed his conduct accordingly' and 'guarded against'
the danger.
Held, further, that a reasonable man might have foreseen trivial harm arising from the sending of a useless letter and the receipt of one
correcting the mistake, but that he would not have guarded against its happening.
Held, therefore, that the case was not one of negligence followed by an unforeseeable increase of the loss without the intervention of any F
outside agency; it was a case where there was no negligence at all: in morals and good conscience the plaintiff had no right to rely upon the
defendant for information and the defendant owed no duty to give it with care.
Held, per VAN DEN HEEVER, J.A., that the notion of 'a duty of care', the existence or nonexistence of which had first to be determined, was
dispensible save perhaps in the cases of damage suffered by invitees and licensees: the basis of our law relating to redress for G damage
flowing from the negligence of others was the Aquilian action, and this action in respect of damnum iniuria datum could only be instituted by a
plaintiff against a defendant if the latter had made an invasion of rights recognised by the law as pertaining to the plaintiff; apart from that,
loss lay where it fell.
Held, further, that apart from contract, fraud or statutory provisions, there was no right by which one ordinary citizen could elicit from another
ordinary citizen information to be used at leisure and which could be tested for accuracy, and demand that the person furnishing it should be a
guarantor of its correctness.
H Held, further, that where there was no right to receive correct information, there was none to be infringed.
Held, per HOEXTER, J.A., although the appellant had a right to obtain the relevant declaration of insurance from the insured, that she had failed
to avail herself of the protection afforded by the Act and therefore had only herself to blame for the result.
1954 (3) SA p466

Held, further, as the danger of suing the wrong insurance company was not created by the respondent, that she was not liable for the
appellant's loss.
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Held, per FAGAN, J.A., that the appellant had failed to discharge the onus of proving culpa on the part of the respondent.
to avail herself of the protection afforded by the Act and therefore had only herself to blame for the result.
1954 (3) SA p466

Held, further, as the danger of suing the wrong insurance company was not created by the respondent, that she was not liable for the
appellant's loss.
Held, per FAGAN, J.A., that the appellant had failed to discharge the onus of proving culpa on the part of the respondent.
The decision in the Transvaal Provincial Division in Herschel v Mrupe A confirmed.
Case Information
Appeal from a decision in the Transvaal Provincial Division (MALAN, J., and BRESLER, A.J.). The facts appear from the judgment of VAN DEN
HEEVER, J.A. B
R. S. Welsh, for the appellant: The distinction, suggested by the Court a quo, between claims based upon physical injury to the person of the
plaintiff and claims based upon pecuniary loss suffered by him, finds some support in the English decisions; see Old Gate Estates, Ltd v Toplis &
Harding & Russell, 1939 (3) A.E.R. at pp. 216 7; Candler v. C Crane, Christmas & Co., 1951 (2) K.B. at pp. 189, 195 and cf. Alliance Building
Society v Deretitch, 1941 T.P.D. at pp. 209, 212. It is, however, recognised in England that the distinction is illogical and it is regarded by many
high authorities as unsatisfactory or indefensible; see Candler's case, supra, at pp. 178 9, 195, 202. Winfield Law of D Tort (5th ed., pp. 391
2); 67 L.Q. Review (1951, art. by Warren A. Seavey at pp. 473 4); 25 Canadian Bar Review (1947, art. by G. W. Paton at pp. 123, 129).
There is no warrant for this distinction in our law. Even in the Roman law there was an actio in factum in respect of damage done nec corpore
nec corpori; see Inst. 4.3.6; Lawson, Negligence in the Civil Law (pp. 24 7); Buckland and McNair, Roman Law and E Common Law (2nd ed.,
p. 367). The process of extension which was begun by the Roman Praetors has continued, and in our law the Aquilian action is a general remedy
for patrimonial loss wrongfully inflicted; see The Cape of Good Hope Bank v Fischer, 4 S.C. 368; Union Government (Minister of Railways &
Harbours) v Warneke, 1911 AD at pp. 662, 664 F 5; Matthews & Others v Young, 1922 AD at pp. 504 5, 507; Bredell v Pienaar, 1924 CPD at
p. 213; Union Government v Lee, 1927 AD at p. 222; Oslo Land Co. Ltd v The Union Government, 1938 AD at pp. 590 1; Perlman v
Zoutendyk, 1934 CPD at pp. 155, 158 9; G van den Heever, Aquilian Damages in SA Law (vol. 1, pp. 32, 33 5); Aquilian Liability for Negligent
Statements (art. by Price, in 67 S.A.L.J. at pp. 138, 257, 411 and 68 S.A.L.J. at p. 78). The reasoning of the Court a quo that unless some
limitation is placed upon liability for negligent misstatements, ordinary intercourse between individuals would be fraught with great danger and a
person in communicating with H another would speak at his peril is supported by some English and American authorities; sec Dickson v Reuter's
Telegram Co., 3 CPD at p. 6; Ultramares Corporation v Touche, 255 N.Y. 170; Candler's case, supra, at pp. 194 5, 202 7, and cf. Alliance
Building Society case, supra, at pp. 213 5. But these fears are exaggerated. Ordinary intercourse between individuals would not be intolerable
if the same rules governed liability for careless deeds and careless
1954 (3) SA p467

words alike. The same arguments were raised against the extension of the Common Law liability of manufacturers but the English Courts had no
difficulty in rejecting them; see Grant v Australian Knitting Mills, Ltd., 1936 A.C. at pp. 107 8. Not every word, written or spoken, will expose
its author to legal liability. The act must be viewed in its A setting; see Glanzer v Shepard, 223 N.Y. 236 and cf. International Products Co v
Erie R.R. Co., 244 N.Y. 331 cited in 67 S.A.L.J. (1950) at pp. 147 8. The fact that a statement will, to the knowledge of its maker, be acted
upon over a long period of time by large number of persons who may suffer heavy pecuniary loss if it is false renders it B necessary that he
should be particularly careful or at any rate warn the persons who are likely to act on the statement, that they do so at their own risk; see 68
S.A.L.J. at pp. 87 8; 67 L.Q.R. at p. 177; 15 Modern Law Review at p. 161. Another reason given for the English rule is that the law 'does not
consider that what a man writes on paper is like a gun or other dangerous instrument'; see Le Lievre v Gould, C 1893 (1) Q.B. at p. 502; Old
Gate Estates case, supra, at p. 216. But it cannot be contended that the publication of nondefamatory words is an extrahazardous act. The
question is merely whether the ordinary rules of negligence do not apply to words as well as deeds; see 14 Harvard Law Review (1900), p. 190;
Candler's case, supra, at pp. 176 D 7. It is generally recognised that the English rule is not only illogical but also unjust; see Heskell v
Continental Express, Ltd., 1950 (1) A.E.R. at p. 1042; Candler's case, supra, at pp. 176, 184 5, 195, 201 2; Winfield, op cit at pp. 392 3;
Goodheart, Essays in Jurisprudence and the Common Law (pp. 277 9); Buckland, Duty to Take Care (51 L.Q.R. p. 369); Seavey (67 L.Q.R.
466). Perlman's case, E supra, appears, therefore, to have been correctly decided and accordingly the liability of the respondent in the present
case should be decided in accordance with the ordinary rules relating to negligence. As to contributory negligence on the part of appellant or
her attorney, it would have been a measure of extreme caution, not of reasonable care, F in the circumstances, to have demanded a sight of
the declaration of insurance; see Lennon, Ltd v B.S.A. Co., 1914 AD at p. 6; Fred Saber (Pty.) Ltd v Franks, 1949 (1) SA at pp. 405 6. As to
the respondent's alternative plea that the appellant's loss was caused by the failure of the South British Insurance Co. to deny at any stage
until the filing of the plea that respondent's vehicle was insured by G it, no one is entitled to assume that the recipient of a letter of demand
will deal promptly and specifically with every allegation made by the claimant and disclose at once all his defences to the claim. A defendant is
under no such obligation before he files his plea though in a proper case, where he discloses his defence for the first time in his plea, the Court
may order him to pay the plaintiff's wasted costs; see H Rosenthal v Liebenguth, 1930 W.L.D. at p. 274; Sandler v Middelburg Coal Agency
(Pty.), Ltd., 1940 W.L.D. 282; Chetty v Louis Joss Motors, 1948 (3) SA 329; Pretoria City Council v Lombard, N.O., 1949 (1) SA 178; Rubin,
Costs (p. 64). The failure of the South British Insurance Co. to disclose that it was not the insurer of respondent's car at the
1954 (3) SA p468
earliest possible opportunity was not so extraordinary an event that respondent could not reasonably have foreseen and guarded against it. The
Insurance Co. may have thought that it had a good defence apart from the fact that it was not the insurer. No one is entitled to assume
honesty in others; see Stansbie v Troman, 1948 (2) K.B. 48. Neither A insurance companies nor attorneys are always careful and respondent
had no right to rely upon the company to correct her own error at once. The failure of the company to do so was, at most, a supervening and
concurrent cause of appellant's loss and does not operate to relieve respondent from liability; see Joffe & Co., Ltd v Hoskins, 1941 AD B at pp.
455 6; Restatement of the Law of Torts (vol. 2, paras. 439 40, 447, 452); Mayne, Damages (11th ed., pp. 45 7); de la Bere v Pearson,
Ltd., 1907 (1) K.B. at p. 488) 1908 (1) K.B. 280; H.M.S. London 1914 P. 72; Burrows v The March Gas & Coke Co., 7 Ex. 96; Grant v Sun
Shipping Co., Ltd., 1948 A.C. at pp. 563 4; S.A.R. v. C Symington, 1935 AD at p. 44; Heskell v Continental Express Ltd., 1950 (1) A.E.R. at p.
1047. Even if respondent could not reasonably have foreseen the precise extent of the loss which appellant would suffer, that is not a defence.
She is responsible for the whole of the loss; see Dig. 9.2.7.5; Dalieu v White & Sons, 1901 (2) K.B. at p. 679; The 'Arpad', 1934 P. at pp. 202
3; Bourhill v Young, 1943 A.C. at pp. D 109 10; Thorogood v van den Berghs and Jurgens, Ltd., 1951 (2) K.B. 537; Restatement of the Law
of Torts (vol. 2, para. 435). Where, in consequence of the defendant's wrongful act, the plaintiff has reasonably incurred costs in legal
proceedings with third parties, such costs (including the plaintiff's own attorney and client costs), may be E recovered from the defendant; see
Halsbury's Laws of England (2nd ed.), vol. 10, para. 145; Mayne, Damages (11th ed., pp. 119 130, 374 8); Yonge v Toynbee, 1910 (1) K.B.
at p. 229; 'The Solway Prince', 31 T.L.R. 56; Britannia Hygienic Laundry Co., Ltd v Thornycroft & Co., Ltd., 135 L.T. 83; Sidney Bennett, Ltd v
Kreeger, 41 T.L.R. 609; Kasler and Cohen v Slavouski, 1928 (1) K.B. 78; Devenish v Johnstone, F 2 M. 82; Hain & Son v Elandslaagte Colliery
Co., Ltd. & Young, 24 N.L.R. 363, 466; Silverton Estates Co v Bellevue Syndicate, 1904 T.S. at pp. 470 1; Cairncross v Brummer, 1917 E.D.L.
at p. 133; Johnson v High Sheriff and Pienaar, 1925 CPD at p. 112; Behm v Ord. 1953 (4) SA at pp. 105 6. The wasted costs claimed as
damages were G reasonably incurred by appellant. They are the measure of her damages for respondent is obliged to put her in the position she
would have occupied if the delict had not been committed; see Caxton Printing Works (Pty.), Ltd v Transvaal Advertising Contractors, Ltd.,
1936 T.P.D. at p. 215; Trotman & Another v Edwick, 1951 (1) SA at pp. 449 50; Amiradakis v Rumble, 1951 (4) SA 674.
H I. E. Lubinsky, for the respondent: Before liability can attach to a negligent statement by one party to another, some special relationship
must exist between the parties, contractual or fiduciary, or some special circumstances must exist which create a similar relationship; see
Ultramares Corporation v Touche, 74 A.L.R. A. 39; Alliance Building Society v Deretitch, 1941 T.P.D. 203; Candler v Crane,
1954 (3) SA p469
Christmas & Co., 1951 (1) A.E.R. 426; McKerron, Law of Delict (p. 161); Le e & Honore, Law of Obligations (p. 241). Perlman v Zoutendyk, 1934
CPD 328 was considered and distinguished in Alliance Building Society, ibid and Western Alarm System (Pty.) Ltd v Coini & Co., 1944 CPD 271.
The statement in Perlman's case, supra, as to when the duty A in question arises is too wide; see Old Gate Estates, Ltd v Toplis & Harding &
Russell, 1939 (3) A.E.R. 209; Candler v Crane, Christmas & Co., 1951 (2) K.B. at pp. 189, 195; Alliance Building Society case, supra, at pp. 209,
212. While authorities have some difficulty in rejecting the view of the law expressed in Perlman's case, ibid, on logical grounds, they concur in
expressing
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perils when ordinary individuals wish to communicate with one another; see Dickson v Reuter's Telegram Co., 3 CPD at p. 6; Ultramares
CPD 328 was considered and distinguished in Alliance Building Society, ibid and Western Alarm System (Pty.) Ltd v Coini & Co., 1944 CPD 271.
The statement in Perlman's case, supra, as to when the duty A in question arises is too wide; see Old Gate Estates, Ltd v Toplis & Harding &
Russell, 1939 (3) A.E.R. 209; Candler v Crane, Christmas & Co., 1951 (2) K.B. at pp. 189, 195; Alliance Building Society case, supra, at pp. 209,
212. While authorities have some difficulty in rejecting the view of the law expressed in Perlman's case, ibid, on logical grounds, they concur in
expressing the view that to make a B person liable for mere pecuniary loss consequent on every negligent statement would be to create grave
perils when ordinary individuals wish to communicate with one another; see Dickson v Reuter's Telegram Co., 3 CPD at p. 6; Ultramares
Corporation case, supra; Candler's case, supra. The attempt to justify the view expressed in Perlman's case, C ibid, on the ground that not
every thoughtless slip or blunder is necessarily negligent and that no one is obliged to foresee remote possibilities of harm to others does not
take into account the actual difficulties consequent on ordinary intercourse. The law is correct in distinguishing between the case where a man
handles a gun and where he D puts his pen to paper; see le Lievre v Gould, 1893 (1) Q.B. at p. 502; Old Gate Estates Ltd. case, supra, at p.
216. The rule as laid down in Candler's and Alliance Building Society cases, both supra, is satisfactory, particularly as people are aware of the
danger of acting on mere verbal statements and can take precautions before relying on the accuracy of such statements. Appellant's duty was
clearly stated in sec. E 22 of Act 29 of 1942, namely to inspect the declaration of insurance. Assuming that Perlman's case, supra, was
correctly decided, then respondent could not reasonably have foreseen that if an error was made in reply the fact of such error would go
beyond the addressing of a F communication to a wrong insurance company. If a duty of care existed, it was restricted to the purpose
mentioned in the letter, namely to supply a name for purposes of a communication; see Cowan v Ballam, 1945 AD 95; Charles v Malherbe, Bosch
& Co. (Pty.) Ltd., 1949 (3) SA 381; Transvaal Provincial Administration v Coley, 1925 AD at pp. 24, 26; Workmen's Compensation Commissioner
v de Villiers, 1949 (1) SA G 474; Stride v Reddin, 1944 AD at p. 171; Shapiro v Castle Wine & Brandy Co., Ltd., 1939 CPD at pp. 219, 220.
Respondent was not obliged to reply at all to appellant's request. She did not owe appellant a duty of care; see Salmond, Law of Torts (10th
ed., p. 430), Clark and Lindsell, Law of Torts (10th ed., p. 353). The letter conveying appellant's request was, in any event, not in accordance
with H the requirements of sec. 22 of Act 29 of 1942 and appellant's attorney was not entitled to act on the reply but was obliged to act in
terms of sec. 22. Appellant failed to prove that the negligent statement was the proximate cause of her loss; see Cape of Good Hope Bank v
Fischer, 4 S.C. 368; Alliance Building Society case, supra; African Banking Corporation v Goldbard, 4 O.R. 402.
1954 (3) SA p470
CENTLIVRES CJ
Appellant was guilty of contributory negligence in that she failed to call for the declarations of insurance and instituted action before checking
whether the correct insurance company was being cited; see Perlman's case, ibid; McKerron, supra, at p. 258; Mayne, Law of Damages A
(11th ed., p. 100). Appellant's loss was at least due in part to the defence maintained by the South British Insurance Company which did not
disclose that it was not the insurer until the plea was served; see Alliance Building Society case, supra; McKerron, supra, p. 161; Harnett v
Bond & Another, 1925 A.C. 669. Appellant failed to prove her damages. B Appellant failed to show that every item was incurred reasonably; see
Halsbury's Laws of England (2nd ed., vol. 10, para. 145); Mayne, supra, at pp. 119 30, 374 8. Appellant failed to show that items reflected
on the bill of costs would not have been incurred but for the falseness of the representation; see Mayne, supra, at p. 378.
Welsh, in reply.
C Cur. adv. vult.
Postea (May 25th).
Judgment
D CENTLIVRES, C.J.: I have had the privilege of reading the judgments prepared by my Brethren and find myself in the unfortunate position of
being constrained to differ from them. It is unnecessary for me to set out the facts which appear fully in my Brother VAN DEN HEEVER'S
judgment.
E The first question which arises in this case is: Does an action lie for damages suffered as a result of a negligent statement made by a
defendant to a plaintiff in circumstances which show that the defendant knew that that statement would be acted on by the plaintiff? In
Perlman v Zoutendyk, 1934 CPD 151, it was alleged in the declaration that F the defendant, an auctioneer and sworn appraiser, had negligently
issued to Pienaar, the owner of certain land, a certificate of valuation in terms of which he appraised and valued that land at the sum of £4,500;
that in issuing the certificate the defendant knew or ought to have known that the certificate would or might be used by the owner of G the
land for the purpose, inter alia, of inducing other persons to lend money to the owner of the land upon the security of the land; that the actual
value of the land was not more than £300; that the plaintiff, relying upon the certificate of valuation, advanced money on mortgage of the land
concerned; that the owner of the property became insolvent and that the plaintiff lost a considerable sum of money. The plaintiff accordingly
claimed damages. To this declaration the defendant excepted H on the ground that it disclosed no cause of action. The Court in dismissing the
exception said at pp. 161 and 162:
'Taking the law as laid down by INNES C.J., in the case of Cape Town Municipality v Paine, 1923 AD 207, and applying it to this case, the question is whether
defendant owes a duty of care and diligence in making his valuation towards the plaintiff. Whether he owed that duty or not depends on whether as a reasonable
man he should have foreseen the likelihood of harm being
1954 (3) SA p471
CENTLIVRES CJ
caused to someone in the position of the plaintiff. That depends upon the facts of the case, but for the present, as the matter is before us on exception, we
must assume that the facts are as stated in the declaration, viz., that the defendant knew, or ought to have known, that the signed certificate would or might be
used by Pienaar, for the purpose of borrowing money on the security of the property. Now defendant is a sworn appraiser, and it seems to me clear that a sworn
appraiser who is a reasonable man and knows that his certificate of A appraisement is to be used for the purpose of inducing someone to lend money on the
mortgage of the property valued by him, ought to foresee that a negligently made valuation assessing the property at a grossly inflated value is likely to mislead
and cause harm to the mortgagee.'
The word 'likelihood' in the above quotation must be understood to mean a possibility of harm against which a reasonable man would take
precautions. See Joffe & Co. Ltd v Hoskins and Another, 1941 AD 431 at p. 451 and Stride v Reddin, 1944 AD 162 at p. 172.
B Accepting, as I do, the law as stated in Perlman v Zoutendyk, supra, it is necessary to be clear in one's own mind as to what is meant by
the words 'a duty of care and diligence . . . towards the plaintiff'. In coming to its conclusion the Court relied on the following statement by
INNES, C.J., in Cape Town Municipality v Paine, supra, at p. 217:
C 'The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to
be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the
diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.'
D In order to determine whether there is a duty to take care one must first ascertain the answer to the question put by INNES, C.J.: if that
question is answered in the affirmative 'the duty to take care is established'. If that question is answered in the negative there is no duty to
take care. (Per INNES, C.J., in Union Government v National Bank of South Africa Ltd., 1921 AD 121 at p. 130).
E In the last mentioned case INNES, C.J., said at p. 129:
'Every man has a right that others shall not injure him in his person or property by their actions or conduct, and'
(according to the original judgment filed of record the word 'but' in the printed report is a mistake for 'and')
'that involves a duty to exercise proper care. The test as to the F existence of the duty is, by our law, the judgment of a reasonable man. Could the infliction
of injury to others have been reasonably foreseen? If so, the person whose conduct is in question must be regarded as having owed a duty to such others
whoever they might be to take due and reasonable care to avoid such injury.'
The proper approach in RomanDutch law to the solution of the problem G set this Court in the present case is clear from the authorities I have
cited. 'The result shows' as INNES, C.J., points out in Paine's case, supra, at p. 216 'that our law applies a wider test of liability than is
recognised by English Courts'. According to many decided cases in England the first question seems to be: Did the defendant owe a duty to the
plaintiff? That seems to me to be a different approach from the H approach of RomanDutch law and, this being so, I do not consider it
necessary to refer to any English authorities, excepting to say that the very able (if I may be allowed to say so) dissenting judgment of
DENNING, L.J., in Candler v Crane, Christmas and Co., 1951 (2) K.B. 164 is more in accordance with the principles of our law than the majority
judgments in that case.
1954 (3) SA p472
recognised by English Courts'. According to many decided cases in England the first question seems to be: Did the defendant owe a duty to the
plaintiff? That seems to me to be a different approach from the H approach of RomanDutch law and, this being so, I do not consider it
necessary to refer to any English authorities, excepting to say that the very able (if I may be allowed to say so) dissenting judgment of
DENNING, L.J., in Candler v Crane, Christmas and Co., 1951 (2) K.B. 164 is more in accordance with the principles of our law than the majority
judgments in that case.
1954 (3) SA p472
CENTLIVRES CJ
In my view the case of Perlman v Zoutendyk, supra, was correctly decided. It may be said that the principles there enunciated should be
confined to those cases where negligent statements are made by persons who hold themselves out to the public as being proficient in their A
professions e.g. sworn appraisers, actuaries, accountants and surveyors. There is nothing in the judgment in that case which suggests that
those principles should be so confined nor do I think that they should be so narrowly confined. If a person who is not a professional man wishes
to raise money for a company in which he is largely interested and negligently supplies inaccurate information in order to B obtain a loan for the
company I do not see why he should not be held liable on the ground of negligence for any damage suffered by a person who has advanced the
money on the strength of that inaccurate information. I shall, however, assume for the purpose of this case that some limitation should be
placed upon the application of the principles C enunciated in Perlman v Zoutendyk. The question therefore arises whether there is any reason
why those principles should not apply to the present case. I can see no such reason. Which insurance company had insured the offending
vehicle was a matter within the peculiar knowledge of the respondent herself. Apart from the insurance company concerned, D the respondent
was the one person in the world who would be expected to know, or, if she left the management of her affairs to an agent, to find out with
which company she had insured the vehicle. Just as, for example, a person is entitled to rely on the accuracy of information given by an
accountant, so too, in my opinion, is a person entitled to rely on the accuracy of information given by the owner of a motor E vehicle, which
has caused damage, as to the company which insured the vehicle, when the owner knows that that person is going to act on the information
by claiming damages from the insurance company concerned.
It now remains to be considered whether on the facts of the present case F the appellant had a cause of action against the respondent. The
letter written by the appellant's attorney to the respondent and asking for the name of the insurance company concerned clearly indicated that
the appellant would be claiming from that company damages resulting from the alleged negligence of the driver of respondent's vehicle. The
reason for wanting to know the name of the insurance company must have been G apparent to respondent when she read the letter and she
must have been aware that the request made by the appellant's attorney was no idle enquiry. She was under no legal obligation to answer the
letter and might have left the appellant to claim the right given her by sec. 22 (2) of Act 29 of 1942 to inspect the declaration of insurance
whereby the motor vehicle in question was insured. The respondent, however, chose to answer the letter. A reasonable person in her position
would H have realised that, if she answered the letter and gave the name of the insurance company concerned, the information so given would
be acted on by the appellant and would have foreseen the possibility of wasted costs incurred as a result of incorrect information. Respondent
was therefore under a duty towards the appellant to exercise due care in seeing that she
1954 (3) SA p473

CENTLIVRES CJ
correctly gave the name of the insurance company concerned. She, herself, gave no evidence at the trial to show that she took any steps to
satisfy herself which insurance company insured the motor vehicle in question. It is obvious that if she had taken any such steps she would not
have given the incorrect reply. Evidence was given by her attorney A from which it appears that the respondent owned several motor vehicles
in respect of which more than one insurance company issued an insurance under Act 29 of 1942. No doubt in giving the incorrect information
she acted bona fide in mistakenly giving the name of one of those insurance companies which caused the injuries to the appellant. The fact
that she B acted bona fide in giving her answer is irrelevant to the question at issue viz.: whether she acted negligently. It is obvious that a
person may act with perfect bona fides and yet be negligent.
I should add that the question whether a person was negligent in making a false statement which he knows will be acted on by the person to
whom C it is made must not be confused with the question whether he had no reasonable grounds for believing it to be true. If he had
reasonable grounds for believing it to be true, then he acted bona fide but, if he had no such grounds, it may be inferred that he acted mala
fide. The enquiry is not whether the respondent acted bona fide or mala fide but D whether she acted negligently. But even if the enquiry in
the present case were whether she had reasonable grounds for believing the statement to be true, I do not see how it can be held, in the
absence of any evidence on her part of any attempt to verify the facts, and in view of her knowledge that she had insured her vehicles in more
than one company, that she had reasonable grounds for saying that it was one E insurance company rather than another which had insured the
vehicle.
The only reasonable inference from the facts is that the respondent acted negligently in telling her attorney to reply to the appellant's enquiry
in the terms in which that reply was couched. In these F circumstances it seems to me that the respondent must be held liable on the ground
of negligence for the resulting damage, unless it can be said that the appellant was guilty of contributory negligence.
The respondent pleaded that the wasted costs were caused by one or more of the following negligent acts or omissions of the appellant:
(a) She failed to ascertain from the South British Insurance Company whether the respondent was insured with that company.
(b) She failed to ascertain what the contents of the declaration of G insurance issued in respect of respondent's vehicle were.
(c) She failed to inspect the declaration of insurance.
(d) After the South British Insurance Company Limited had repudiated liability she failed to ascertain on what grounds the company
repudiated liability.
In my opinion there is no substance in the plea of contributory negligence. In my view the appellant was entitled to take the word of H the
respondent that the South British Insurance Company was the company which had insured the vehicle in question and it was not incumbent on
her in these circumstances to have recourse to the statutory procedure in order to discover the name of the insurance company. There was
nothing in the letter of March 15th, 1948, which
1954 (3) SA p474
SCHREINER JA
in any way suggested that the respondent was in doubt as to the name of the insurance company which had insured the vehicle in question.
This being so, I am of opinion that the appellant was entitled to act, without making further enquiry, on the information given her by the A
respondent. The mere fact that, if the appellant had been more cautious, she would not have incurred the loss is not per se sufficient to prove
that she was guilty of contributory negligence. See Fred Saber (Pty.) Ltd v Franks, 1949 (1) SA 388 at p. 406 (A.D.).
The respondent as a further defence pleaded that appellant's loss was B caused by the action of the South British Insurance Company in failing
to deny at any stage until the filing of the plea that respondent's vehicle was insured with it. This plea seems to me to be misconceived. It
implies (1) that the South British Insurance Company did something wrong when it waited until it filed its plea to deny that respondent's vehicle
was insured with it and (2) that appellant has her C remedy against that company. It is sufficient to say that the South British Insurance
Company acted within its rights to wait until its plea before disclosing its defence and that consequently appellant is not entitled to recover
from that company any part of the damages she has suffered.
D Assuming that the respondent could not reasonably have foreseen the extent of the loss which the appellant would suffer, it does not follow
that the appellant is not entitled to be reimbursed to the full extent of the loss occasioned to her by the respondent's negligence. If through my
negligent driving of a motor car I crash into another car containing valuable china and that china is smashed I cannot be heard to say that I E
am not liable for the loss of the china because I was not aware of the presence of the china, or that a reasonable man would not have foreseen
the presence of the china.
In view, however, of the fact that my judgment is a minority judgment it is unnecessary for me to decide what amount in damages the appellant
is entitled to recover in this case.
For all these reasons I would allow the appeal.
am not liable for the loss of the china because I was not aware of the presence of the china, or that a reasonable man would not have foreseen
the presence of the china.
In view, however, of the fact that my judgment is a minority judgment it is unnecessary for me to decide what amount in damages the appellant
is entitled to recover in this case.
For all these reasons I would allow the appeal.
F SCHREINER, J.A.: The facts appear from the judgment of my Brother VAN DEN HEEVER. I propose to state my own reasons for reaching the
same conclusion because this is the first case in which this Court has had to G consider the question how far, if at all, a person is liable for the
consequences of his misstatement of fact or erroneous opinion where he spoke or wrote honestly but carelessly.
The foundation of the plaintiff's case is the contention that in our law there is an allembracing general principle applicable wherever negligence
is in issue and that as soon as the facts of a case can be brought within the terms of this general principle an action for H negligence lies, the
logical and therefore correct result following deductively. The major premiss is to be found, so it is argued, in what was said by INNES, C.J., in
Cape Town Municipality v Paine, 1923 AD 207 at pp. 215 217. In order to judge the validity of the argument and to see how far it carries the
plaintiff it is necessary not only to quote again from the language used by INNES, C.J., but also
1954 (3) SA p475
SCHREINER JA
to refer to certain other statements on the subject in this Court.
After approving, for our law, of the passage in Heaven v Pender, 11 Q.B.D. 503 at p. 509, which was discussed by LORD ATKIN in Donoghue v
Stevenson, 1932 A.C. 562 at p. 580, and after stating that accountability for unintended injury depends upon
'the failure to observe the degree of care that a reasonable man would have observed',
the learned CHIEF JUSTICE said,

'The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be
decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the
diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.'
B Two features of this statement must be considered in the light of what has been said in other cases. The one is that the test is whether the
reasonable man would, not could, have foreseen the harm. The other is that the situation must be such that the reasonable man not only
would C have foreseen the harm but would have 'governed his conduct accordingly' and 'guarded against' the danger. These features are
brought out in the cases to which I now refer.
In Joffe & Company v Hoskins, 1941 AD 431 at p. 451 the word 'likelihood' was interpreted as a possibility of harm to another against the
happening of which a reasonable man would take precautions. D Reference was then made to a passage in Union Government v National Bank
of South Africa Ltd., 1921 AD 121 at p. 129, where the test question was put in the form, 'Could the infliction of injury to others have been
reasonably foreseen?' It was pointed out in Joffe's case that INNES, C.J., could hardly have intended in the National Bank case to E formulate a
different test from that afterwards stated in Paine's case; 'would' should accordingly be substituted for 'could'. Indeed in the passage in Heaven
v Pender, supra, approved of in Paine's case BRETT, M.R., gave some prominence to the element of obviousness, a feature which should,
perhaps, be borne in mind when considering the application F of the law of negligence to a new field. In Dukes v Marthinusen, 1937 AD 12, also
referred to in Joffe's case, loc. cit., it was said that so long as the chances of injury, though small, were 'appreciable' the public it was a case
of a demolition adjoining a public street was entitled to be protected. Presumably 'appreciable' was used to convey that a reasonable person
would appreciate that there was such a G chance of injury from the demolition as called for precautionary measures. In Transvaal Provincial
Administration v Coley, 1925 AD 24, INNES, C.J., said at p. 26 that the question was whether a reasonably prudent person would have foreseen
that certain stakes in a children's playground would be 'likely' to cause harm 'in which case he would have been bound 'either to remove them
or to take other steps to obviate H the danger'. I read this passage as meaning, not that, as a proposition of law, wherever a reasonable man
would have foreseen harm he would have guarded against it, but that, in the circumstances of that case, if harm was foreseen, it would also be
foreseen that it might well be serious, with the corollary in those circumstances, that a reasonable
1954 (3) SA p476
SCHREINER JA
man would have been bound to take steps to obviate the danger. In Wasserman v Union Government, 1934 AD 228, Wasserman died as the
result of a bee sting at a police station where bees had hived in the roof; the issue, as it presented itself to this Court, was whether the A
employees of the Government were negligent in not having had the hive removed, or whether the head constable had been negligent in asking
Wasserman to find out where the bees came from. It was held that there was no prima facie case of negligence such as could support an
application by the widow for leave to appeal in forma pauperis. WESSELS, B C.J., posed the question whether a reasonable man would have
guarded against the danger. He said that 'it would be idle to deny that there is a potential danger in every bee', and that 'to be stung by a bee
is one of the ordinary risks of life in this country where bees are ubiquitous'. STRATFORD, J.A., said that there was 'no duty on a reasonable man
to have anticipated the injury'. DE VILLIERS, J.A., said,
C 'There does not seem to me to have been such a degree of likelihood of fatal injury being caused by the bees as to cast on the Government the burden of
anticipating it. . . . A person must take precautions against harm happening to another if the likelihood of such harm would be realised by the reasonably prudent
person. He is not, however, bound beyond that; he need not take precautions against a mere possibility of harm not amounting to such a likelihood as would be
realised by the reasonably prudent man.'
D In Moubray v Syfret, 1935 AD 199 DE VILLIERS, J.A., at p. 209 stated the ratio decidendi of Wasserman's case to be that
'there must be a likelihood of harm such as would be foreseen and guarded against by a diligens paterfamilias (an average prudent person) before a duty to
take care is established.'
The words 'likelihood' in these passages and 'likely' in Coley's case, E supra, must, of course, be read in the light of what was said in Joffe's
case, supra. Although the judgments in Wasserman's case are not ideally clear on the point it seems to me that what was intended to be
conveyed was that to be stung by a bee, though not an uncommon experience, is generally not so serious as to be a risk against which a F
reasonable person, in the position of the Government employees, would have guarded, and that serious or fatal consequences of a bee sting are
so rare that it could not be affirmed that a reasonable person would foresee them. With the correctness of the factual basis of the judgments
we are not, of course, concerned; it is the reasoning that for present purposes appears to me to be important. The greater part of the above G
passage from the judgment of DE VILLIERS, J.A., in Wasserman's case was quoted by GREENBERG, J.A., in his dissenting judgment in Cowan v
Ballam, 1945 AD 81 at p. 95, where the problem before the Court was summarised as follows:
'The duty of the Court is to try to decide whether the conduct of the respondent was that of a reasonably prudent person, which involves two questions viz.: (1)
what dangers of harm would such a person have anticipated in the circumstances in which the respondent found himself; (2) what then would have been the
conduct of such a person in these circumstances.'
H The last case that I wish to mention is Brown v Hunt, 1953 (2) SA 540 (AD), where CENTLIVRES, C.J., at p. 544, posed the question to be
decided as,
'whether a reasonable man in the position of the defendant's employee would in the proved circumstances of this case have foreseen the possibility of harm
and governed his conduct accordingly.'
1954 (3) SA p477
SCHREINER JA
I find myself in respectful agreement with the view of GREENBERG, J.A., which I have quoted. No doubt there are many cases where once harm
is foreseen it must be obvious to the reasonable man that he ought to take appropriate avoiding action. But the circumstances may be such
that a reasonable man would foresee the possibility of harm but would A nevertheless consider that the slightness of the chance that the risk
would turn into actual harm, correlated with the probable lack of seriousness if it did, would require no precautionary action on his part. Apart
from the cost or difficulty of taking precautions, which may be a factor to be considered by the reasonable man, there are two variables, the
seriousness of the harm and the chances of its happening. B If the harm would probably be serious if it happened the reasonable man would
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the reasonable man might not guard against it even if the chances of its happening were fair or substantial. An extensive C gradation from
is foreseen it must be obvious to the reasonable man that he ought to take appropriate avoiding action. But the circumstances may be such
that a reasonable man would foresee the possibility of harm but would A nevertheless consider that the slightness of the chance that the risk
would turn into actual harm, correlated with the probable lack of seriousness if it did, would require no precautionary action on his part. Apart
from the cost or difficulty of taking precautions, which may be a factor to be considered by the reasonable man, there are two variables, the
seriousness of the harm and the chances of its happening. B If the harm would probably be serious if it happened the reasonable man would
guard against it unless the chances of its happening were very slight. If, on the other hand, the harm, if it happened, would probably be trivial
the reasonable man might not guard against it even if the chances of its happening were fair or substantial. An extensive C gradation from
remote possibility to near certainty and from insignificant inconvenience to deadly harm can, by way of illustration, be envisaged in relation to
uneven patches and excavations in or near ways used by other persons.
These, then, being the general principles used in deciding whether one person is liable to another on the ground of negligence, it is D necessary,
next, to consider how far, if at all, those principles are applicable to spoken or written words. For success along the lines of deductive reasoning
the plaintiff requires a major premiss to the effect that, subject to special defences like contributory negligence, an action will invariably lie
where one person has suffered loss in E consequence of the negligent conduct of another, who owes a duty of care to the former, whatever
form that conduct may take. But, inasmuch as the law of negligence has not been authoritatively stated with reference, express or necessarily
implied, to the field of spoken or written words, there is no justification for assuming such a universal proposition as the plaintiff relies upon. The
general principle stated F in Paine's case will always be an authoritative guide to the proper decision of cases in the fields to which it was
intended to apply. It may be of great assistance, also, in other fields. But it must not be used, merely because verbally it is wide enough, to
provide a universal major premiss from which results, possibly unsatisfactory ones, may be G deduced which were not in the contemplation of
those who stated the principle.
In regard to the application of the law of negligence to spoken or written words it seems to me to be particularly difficult to generalise, except
very tentatively. The field is variegated and is only now being explored. Distinctions that may prove to be important appear at every turn. There
is, for instance, the distinction between words that may, H like a flash of light or a loud noise, harm directly by shock, whether they be true or
false 'your husband has just been killed in an accident', blurted out to one known to be in a delicate state of health and words that operate
only through the power of reason, when their truth or falsity is of crucial importance. There is the
1954 (3) SA p478
SCHREINER JA
distinction between words uttered in connection with the making of a contract and words uttered in other circumstances. There is the
distinction between utterances by a person exercising a public or semipublic calling, involving the furnishing of information, and utterances by
other persons. There is the distinction between words A uttered to, or so as to reach, the person harmed and words uttered to one person
which, through his reaction, may harm another. There is the distinction, suggested in the last, between words uttered directly to the person
harmed and words uttered to one person and conveyed to B another who is harmed thereby. And there is the distinction between physical harm
to person or property and harm of a pecuniary or financial kind consequent upon action induced by the error. It is not surprising that, in view of
the various ways that human speech may produce harm of various kinds to various people, a good deal of judicial caution has shown itself in the
approach to the subject.
C The law of negligence should not be allowed unnecessarily to invade areas that are already fully and satisfactorily occupied by other legal
rules. In relation to spoken or written words we already have the bodies of law represented by defamation, fraud, and injurious falsehood. But
assuming that there is proper scope for an action based on negligence in D relation to spoken or written words, and confining the present
inquiry to cases of harm caused through honest but erroneous statements or opinions addressed to the person harmed, there must certainly be
limitations on the availability of the remedy. It cannot fairly be argued that every illconsidered answer to an apparently unimportant E question
should involve the answerer in liability, if he was carelessly mistaken, to make good the inquirer's loss, even though, going back to the general
principle, it might be thought that a reasonable person always weighs his words prudently and bears in mind the possibility that, if he is not
careful, they may contain mistakes and so cause harm. We have some idea of how the reasonable man drives vehicles and controls F the
property he occupies, but whether he is nearer to the courteous, friendly soul who is ready to help any inquirer by the best honest answer that
he can think of, or to the cautious man who would rather appear churlish than commit himself to statements that may turn out to be wrong,
seems to me to be a question of considerable difficulty. And if this is so it may be doubted whether any advantage is gained by G treating
words as simply a form of conduct to which the Lex Aquilia applies, and then deciding what exceptions are to be admitted to the application of
the Lex to this form of conduct, instead of inquiring directly whether, and in what circumstances, it is convenient and right to allow recovery of
loss caused through acting upon honest but carelessly made misstatements of fact and erroneous opinions.
H I shall assume, what seems, provisionally, to be reasonable, that there are cases in which such an action lies. I shall also assume that
financial or pecuniary loss, as opposed to damage flowing from physical injury to person or property, may in a proper case be recovered. What
has to be decided is whether the present is a case in which on the
1954 (3) SA p479
SCHREINER JA
above assumptions the plaintiff was entitled to recover the amount of her attorney and client costs.
We are not dealing here with the question whether, if the defendant should have foreseen harm from a misstatement by her attorney in
answering the plaintiff's inquiry and should have guarded against it, A the plaintiff was a person who should have been envisaged as a possible
sufferer in other words whether the defendant owed a duty to or was negligent as against or visàvis the plaintiff, as opposed to other
possible persons. If there was any one who was entitled on these facts to sue the defendant for negligent misstatement it was the plaintiff.
But the question remains whether the defendant, who was admittedly not B obliged to answer the plaintiff's question at all, was bound, if she
did so, to take due care to see that the answer was correct. The parties were, through their attorneys, in touch with each other and it would
have been open to the plaintiff to try to secure from the defendant a contractual warranty as to the identity of her insurance C company. That
was not attempted and the question is whether the plaintiff was entitled, by way of the law of delict, to be put in practically the same position
as if the defendant had so contracted.
Since, as I have indicated, there could not be a hard and fast rule requiring that in all cases a question be answered not only honestly but D
carefully, the conditions must be sought under which it might be reasonable to recognise an obligation to take care in making a reply. One
obvious consideration is that the circumstances must show that the answer is being sought of serious purpose, in order that it may be acted
upon. That, at least, is required, but it is not enough. A request for E advice from a supposedly knowledgeable friend as to an investment could
clearly not involve the friend in liability for loss if his honest advice were culpably unwise for example if he inexcusably confused the names of
two companies. A misstatement of fact would in like circumstances stand on the same footing. Nor could the mere insistence by the inquirer on
the importance to him of obtaining correct F information by itself increase the burden on the person from whom the information is sought. So, a
man who asks a stranger in the street for the correct time and signifies that it is most important for him to keep an appointment or catch a
train, could not hold the stranger liable if wrong information, given honestly but culpably (the stranger's watch, G for instance, being to his
knowledge gravely erratic) lost him the appointment or the train. And the same would, presumably, apply to misdirections, by one who should
have known better as to the route to some place which the inquirer has explained that it is essential for him to reach without delay. It would be
unfair to subject the defendant to stricter treatment s imply because the plaintiff has unburdened himself about his plans and the seriousness of
the consequences if they H miscarry. No doubt if the defendant has absorbed all that the plaintiff has said and has appreciated the risks which
the plaintiff will run if the information he seeks proves to be erroneous, this will remove one obstacle to the plaintiff's action, but it cannot
suffice to bring him success.
1954 (3) SA p480
SCHREINER JA
So far as the particular kind of problem here in issue is concerned there appears to be no consideration of the matter in our old authorities.
Support for the general proposition that an action lies for negligently spoken or written words in some circumstances but not in A others can be
found in a few South African cases like Perlman v Zoutendyk, 1934 CPD 151, 328; Alliance Building Society v Deretitch, 1941 T.P.D. 203 and
Western
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when a person who is asked a question is obliged in law to answer it carefully. On the assumption that I have made, that B in some cases of
SCHREINER JA
So far as the particular kind of problem here in issue is concerned there appears to be no consideration of the matter in our old authorities.
Support for the general proposition that an action lies for negligently spoken or written words in some circumstances but not in A others can be
found in a few South African cases like Perlman v Zoutendyk, 1934 CPD 151, 328; Alliance Building Society v Deretitch, 1941 T.P.D. 203 and
Western Alarm System (Pty.) Ltd v Coini & Co., 1944 CPD 271, which were cited in argument, but none of them furnishes much help in deciding
when a person who is asked a question is obliged in law to answer it carefully. On the assumption that I have made, that B in some cases of
this kind an action is maintainable, I know of no more reasonable propositions than those enunciated by ANDREWS, J., in delivering the judgment
of the New York Court of Appeals in International Products Company v Erie Railway Company, 56 A.L.R. 1377. At p. 1381 the learned Judge
says, in relation to liability for answers to questions,
C 'Liability in such cases arises only where there is a duty, if one speaks at all, to give the correct information. And that involves many considerations. There
must be knowledge, or its equivalent, that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that, if
false or erroneous, he will because of it be injured in person or property. Finally, the relationship of the parties, arising out of contract or otherwise, must be such
that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information D owes a duty to give it with
care. . . .
When such a relationship as we have referred to exists may not be precisely defined. All that may be stated is the general rule. In view of the complexity of
modern business, each case must be decided on the peculiar facts presented. The same thing is true, however, in the usual action for personal injuries. There
whether negligence exists depends upon the relations of the parties, the thing done or neglected, its natural consequences, and many other considerations. No
hard and fast line may be drawn.'
E As a summary of the reasonable requirements for such actions, assuming that they are to be allowed, these propositions appear to me to be
satisfactory, and I propose to adopt them in the further consideration of this case.
F The first and most important factor to be taken into account in applying the above considerations to the facts of the case is the provision in
sec. 22 (2) of Act 29 of 1942, under which Act the plaintiff planned, if necessary, to sue the defendant's insurance company. Subsec. (1) of
sec. 22 obliges the owner of a motor vehicle concerned in an accident in which anyone other than the driver was G killed or injured to furnish
the insurance company which insured the vehicle with, inter alia, particulars of the accident, of the person or persons killed or injured in the
accident and of persons who witnessed it. Subsec. (2) obliges the owner, at the request of any person who has suffered loss or damage as a
result of the death of any person in the accident or at the request of any person injured or at the request of H their agent, to produce to the
person making the request the declaration of insurance whereby the motor vehicle was insured at the time of the accident and a copy of any
information which the owner furnished to the insurance company in terms of subsec. (1), and to permit the person making the request to make
a copy of the declaration and the information.
1954 (3) SA p481
VAN DEN HEEVER JA

I find it difficult to understand why any ordinarily careful attorney should ever institute proceedings against an insurance company under the
Act without having first obtained from the owner of the motor vehicle, whose insurer he wishes to sue, production of the declaration of
insurance and the copy of the information mentioned in sec. 22 (1). The whole case which is contemplated depends upon the statutory
declaration A of insurance, and the Act accordingly provides for its production to anyone who might wish to bring action under its provisions. I
see no ground for attributing to anyone receiving an extra statutory request, not for production of the declaration or a copy of the information
covered by subsec. (1) but only for the name of the insurance company B concerned, an appreciation of the fact that the maker of the
request intends to commence an action against the insurance company without taking the statutory step provided in subsec. (2). Especially
would that be the position if the request came from an attorney. In the present case the plaintiff's attorney, in his letter of the 2nd March,
1948, after mentioning the Act, merely writes,
'Will you therefore please be good enough to advise me immediately the C name of your insurance company, so that a communication may be addressed to
them in this connection.'
No reasonable man would conclude from this letter that the attorney was about to plunge into litigation without taking the elementary
precaution of seeing the document on which his whole case would rest. At the most D the recipient of the letter might expect a letter to be
written to the insurance company named in his reply, after which, if there was a mistake, the company would point it out and the
correspondence would cease.
A reasonable man placed in the position of the defendant's attorney E might have foreseen such harm to the plaintiff as might arise from the
sending of a useless letter and the receipt of one correcting the mistake. I do not think that such harm could fairly be described as 'appreciable'
but, if it were so describable, a reasonable man foreseeing such trivial harm would not in my view guard against its happening any more than the
reasonable man would have guarded against F the possibility of Wasserman's receiving a bee sting. The case is thus, in my view, not one of
negligence followed by an unforeseeable increase of the loss without the intervention of any outside agency; it is a case where there was no
negligence at all. In morals and good conscience, to quote ANDREWS, J., the plaintiff had no right to rely upon the defendant G for information
and the defendant owed no duty to give it with care.
For these reasons I find it unnecessary to consider the questions whether if there had been actionable negligence on the defendant's part the
plaintiff could have recovered more than the costs connected with the first letter to the insurance company and its reply, and whether in any
case the plea of contributory negligence was not proved. I agree that the appeal must be dismissed.
H VAN DEN HEEVER, J.A.: Appellant's husband was killed in a collision between two motor vehicles, one of which was respondent's property.
Thereupon, on the 2nd March, 1948, appellant's attorney addressed
1954 (3) SA p482
VAN DEN HEEVER JA

a letter to respondent containing the following passages:
'My client considers that such collision was due to the negligence of the driver of your vehicle in allowing such vehicle to be stationary and unlighted on the
main road in such circumstances as to constitute a hidden trap.
My client assumes that you are duly insured under the provisions of Act 39 of 1942 (Compulsory Third Party Insurance Act).'
A (The Act intended to be referred to is 29 of 1942.)

'Will you therefore please be good enough to advise immediately the name of your insurance company, so that a communication may be addressed to them in
this connection.'
This letter was handed to respondent's attorneys who, after consultation with their client, addressed a letter dated 15th March, 1948, to
appellant's attorney containing the statement:
B 'Our client's insurers are the South British Insurance Co. Ltd., but in any event our client denies liability.'
It transpired subsequently that this information, though given in good faith, was incorrect. Respondent is an old Native woman who owned three
or four motor vehicles. Some of these had been insured with the South C British Insurance Co. Ltd., and some had been involved in other
collisions; but the vehicle which was involved in the collision that caused the death of appellant's husband was actually insured with another
insurer at the time.
Acting on the information received appellant's legal representative sent D a letter of demand for damages to the South British Insurance Co.
and thereafter tried to negotiate a settlement. During the negotiations, unfortunately, it was accepted that the motor vehicle in question was
insured by the Company. The negotiations broke down and thereafter appellant, without making further inquiries, instituted action against the
Company. Its plea averring that the Company was at the time of the E collision not the insurer of the vehicle in question was the first intimation
appellant or her legal advisers received that the information obtained from respondent was incorrect.
The action was withdrawn and the Company accepted £10 10s. 0d. in settlement of their costs, but in the meantime appellant had wasted
£102 F 0s. 10d. in the intended action in costs as between attorney and client.
Case Information
Action was then instituted against the actual insurer who pursuant to a settlement at the trial paid compensation to appellant.
Thereupon appellant instituted action against respondent in the G magistrate's court for the recovery of the wasted costs on the ground, as
The action was withdrawn and the Company accepted £10 10s. 0d. in settlement of their costs, but in the meantime appellant had wasted
£102 F 0s. 10d. in the intended action in costs as between attorney and client.
Case Information
Action was then instituted against the actual insurer who pursuant to a settlement at the trial paid compensation to appellant.
Thereupon appellant instituted action against respondent in the G magistrate's court for the recovery of the wasted costs on the ground, as
stated in the particulars of claim that:
'As a result of the information given by defendant to plaintiff, which was given wrongfully and negligently, the plaintiff has suffered damages amounting to £112
10s. 10d. being attorney and client costs in the action instituted against the South British Insurance Company Ltd.'
Negligence was denied in the plea, which raised two further alternative defences namely contributory negligence and that any loss suffered by
H appellant was caused by the Company in failing to deny ab initio that it was the insurer.
The magistrate entered judgment for plaintiff (appellant) as prayed with costs. He held that by virtue of the provisions of sec. 22 (2) of Act 29
of 1942 the respondent owed a statutory duty to appellant to disclose who her insurer was and was negligent in supplying this
1954 (3) SA p483
VAN DEN HEEVER JA

information in that she took no steps whatsoever to satisfy herself as to the correctness thereof.
In regard to the first alternative plea the magistrate said:
'One would expect that a statement made by an attorney of record . . . could be relied on and that it could be acted upon without having to apply any tests as
to its correctness.'
A What was meant by 'attorney of record' I do not know. Granted the facts alleged in the last alternative plea, the magistrate held, those
facts would not relieve the respondent of responsibility for her negligence. I omit further reference to this defence as it appears to me to allege
matters foreign to the issues between the parties and irrelevant.
B In the magistrate's court, accordingly, judgment was entered for the plaintiff (appellant) as prayed with costs.
On appeal to the Transvaal Provincial Division MALAN, J. (with whom BRESLER, A.J., concurred) distinguished Perlman v Zoutendyk, 1934 CPD
151, on the ground that that case was decided on exception and C that 'the allegation that a duty was owed to the plaintiff was assumed'.
The learned Judge drew attention to the fact that in Cape Town Municipality v Paine, 1923 AD 207, the claim was based on a personal injury
sustained by the plaintiff and remarked:
'Common sense fortifies the view that some limitation must be placed upon liability in damages for innocent nondefamatory statements negligently made,
otherwise ordinary intercourse between individuals D would be fraught with great danger and a person in communicating with another would speak at his peril.
That is a position which is so startling that I do not think that it can be said to fall under any portion of our law relating to injuries. I can do no better than with
respect adopt the reasoning of CARDOZO, C.J., in Ultramares Corporation v Touche and Others, 74 A.L.R. Annotated at p. 1139, quoted in Alliance Building
Society v Deretitch, 1941 T.P.D. 203 at pp. 213 214. The principles to be extracted from that reasoning are that before liability can attach some special
relationship must exist between the parties, E contractual, fiduciary, or some other special circumstances must exist which create a similar relationship. In the
present case no such relationship whatsoever falls within the terms of the limitation and, in my opinion, the appeal must succeed.'
The magistrate's judgment was accordingly altered to one of absolution from the instance with costs and respondent was ordered to pay the
costs on appeal.
F From that judgment the appellant with the leave of the Court a quo appealed to this Court.
I must confess that it is not clear to me from the reasons quoted above why the very special relationship which undoubtedly existed between
the parties in this case did not in the opinion of the learned Judge 'fall G within the terms of the limitation'. Appellant considered that at
common law she would have had a good cause of action against respondent for damages based on the accident. She is precluded, however,
from pursuing that claim against respondent by the provisions of sec. 13 of Act 29 of 1942 at least until the insurer has been excussed and is
unable to pay. Ex lege therefore the parties stand towards each other H very much in the relationship of creditor and debtor's surety. Sec. 22
(2) of the Act then casts upon the respondent an obligation at the request of appellant to produce the declaration of insurance whereby the
motor vehicle in question was insured together with certain other information. This is nothing more than the old actio or mandatum ad
exhibendum fortified by a criminal
1954 (3) SA p484
VAN DEN HEEVER JA

sanction. Conceivably respondent could have ignored a request which did not call for precise prestation, i.e. production of the document itself;
but if she waives her right to insist upon a formally correct approach and, upon being asked merely for secondary evidence of its contents A
supplies what purports to be such secondary evidence, can she maintain that, since less than what she in duty owed was being demanded of
her, she owed no duty at all? By the same token, however (temporarily at least, until further demand be made), appellant waived her right to
insist upon production of the declaration itself, which would B practically have excluded the chances of bona fide mistake.
The proposition that negligent discharge of a duty imposed by law constitutes an actionable wrong and entitles the 'creditor' in respect of that
duty to damages, was never intended to be accepted in its stark simplicity; always it is used in conjunction with other factors tacitly C
understood to be present. A father's legal duty to have his child educated is reinforced by criminal sanctions, yet I cannot picture a child, when
of age, successfully suing the parent for loss of earning capacity arising out of a breach of that duty. A host of similar situations leap to mind;
to mention only a few: licensing authorities D who negligently fail to observe correct procedure and render a licence voidable; a relative who
has been ordered by Court to furnish maintenance and who negligently transmits it to Wiesbaden instead of Windhoek; a Minister who
negligently omits to have a Parliamentary vacancy proclaimed; a husband who by negligent exercise of his marital power fritters away his wife's
dotal property.
E In Cape Town Municipality v Paine, 1923 AD 207 at p. 216, INNES, C.J., said:
'It has repeatedly been laid down in this Court that accountability for unintentioned injury depends upon culpa the failure to observe that degree of care
which a reasonable man would have observed. I use the term reasonable man to denote the diligens paterfamilias of Roman law the average prudent person.
Every man has a right not to be injured in his person or property by the negligence of another and that F involves a duty on each to exercise due and
reasonable care. The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct
accordingly, is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and
guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.'
G It is obvious that the word 'injure' in the passage quoted was used in a pregnant sense to bear the same meaning as the word iniuria in the
expression damnum iniuria datum, for otherwise the passage would not truly reflect our law.
I can best make this clear by quoting the arresting language in which LORD ATKIN expressed a similar idea in Donoghue v Stevenson, 1932 A.C.
562 at p. 580, where he said:
'The liability for negligence, whether you style it such or treat it as H in other systems as a species of 'culpa', is no doubt based upon a general public
sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated
so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their
remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour?
1954 (3) SA p485
VAN DEN HEEVER JA

receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour? Who then is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'
One senses immediately that an essential element has been left out, A perhaps because it was so obvious that it was unnecessary to mention
it, namely that the act or omission complained of must be an unlawful incursion into another's economic sphere. According to our law I may be
negligent
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the other hand if I negligently bar or endanger the approach B to his shop and so drive his prospective customers away, I am undoubtedly
receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour? Who then is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'
One senses immediately that an essential element has been left out, A perhaps because it was so obvious that it was unnecessary to mention
it, namely that the act or omission complained of must be an unlawful incursion into another's economic sphere. According to our law I may be
negligent in my costing and ruin my competitor in consequence by underselling him; but since I make no inroad into his rights I am not liable. On
the other hand if I negligently bar or endanger the approach B to his shop and so drive his prospective customers away, I am undoubtedly
liable, for I make an inroad upon his rights. As a reasonable man I must foresee that by building in a certain manner on my premises I will exclude
light and air from my neighbour's house and considerably reduce its value. Yet, unless he has a servitude over my C property, I can do so as
wilfully or as negligently as I like, for I exercise my own rights and do not encroach upon his. My position may be different if I build not in order
to improve my own property but maliciously, purely in order to injure my neighbour (Union Government (Minister of Railways & Harbours) v
Marais and Others, 1920 AD 240 at p. 247).
D It seems to me that some confusion has crept in because the word 'negligence' has acquired two distinct meanings. It is sometimes used to
stigmatise conduct and to denote the shortfall in the requisite standard of care accompanying the conduct in question. It was in this sense that
ALDERSON, B., propounded his well known definition in Blyth v The E Company of Proprietors of the Birmingham Waterworks, 156 E.R. 1047 at
p. 1049, where he said:
'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would not do.'
In this case water from defendant's reticulation system, the construction of which had been authorised by Parliament, entered F plaintiff's
house and caused damage. There was a clear immittere in the Roman sense into the property of another. There was no question of negligence
per se being the ground of action.
In Donoghue's case on the other hand, as LORD WRIGHT observed in Grant G v. Australian Knitting Mills, Ltd. and Others, 1936 A.C. 85 at p.
103, negligence was treated, where there was a duty to take care,
'as a specific tort in itself, and not simply as an element in some more complex relationship or in some specialised duty, and still less having any dependence
on contract.'
In such a situation one should not construe reasons for judgment like sections in an Act of Parliament. Principles are stated which were
necessary for the determination of the issues raised; others were no doubt tacitly assumed.
H Unless one were to come to the conclusion that liability is determined by judicial discretion, this factor of 'a duty to take care' is a rather
nebulous concept which contains a postulate of that which has to be determined. As LORD WRIGHT remarked (at pp. 104 and 105):
1954 (3) SA p486

VAN DEN HEEVER JA
'It may well be said that the duty is difficult to define, because when the act of negligence in manufacture occurs there was no specific person towards whom
the duty could be said to exist: the thing might never be used: it might be destroyed by accident, or it might be scrapped or in many ways fail to come into use
in the normal way: in other words the duty cannot at the time of manufacture be other than potential or contingent, and only can become vested by the fact of
actual use by a particular person . . . as LORD ATKIN points out in Donoghue's case, the A distinction between things inherently dangerous and things only
dangerous because of negligent manufacture cannot be regarded as significant for the purpose of the questions here involved.'
This distinction was nevertheless put to us in argument. I do not consider the suggestion tenable; it was rejected by DARLING, J., in Chichester
Corporation v Foster, 1906 (1) K.B. at p. 177, where he remarked:
B 'I very much doubt whether anything whatever can, strictly speaking, be called 'a dangerous thing'; that depends on its use on environment. Water, which
caused the injury complained of in Rylands v Fletcher, is only dangerous under certain conditions, and so is fire. The expression 'in itself dangerous' is used in
the headnote to Rylands v Fletcher, but I do not find it in the judgments; nor do I think it an appropriate expression anywhere, except, perhaps, as used by Mr.
Pope in regard to 'a little learning.''
C But to return to 'the duty of care'. In Grani's case (at p. 103) LORD WRIGHT himself suggests some tertium quid which was not mentioned in
Donoghue's case. He observes:
'It is, however, essential in English law that the duty should be established: the mere fact that a man is injured by another's act gives in itself no cause of
action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, D so long as the other party is merely exercising a
legal right (my italics): if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.'
It seems to me, therefore, that even in English law this notion of 'a duty of care', the existence or nonexistence of which has first to be
determined, is dispensible save perhaps in the cases of damage suffered by invitees and licensees. Yet even in such cases the notion E has
proved to be an equivocal and fallible signpost as the plaintiff in London Graving Dock Co. Ltd v Horton, 1951 A.C. 737, discovered after
adventuring with changing fortunes before three successive tribunals, the House of Lords deciding against him by a majority of three to two.
Where the act of negligence complained of is that of putting into F circulation potentially harmful commodities or information, I can see no
reason why its assistance should be invoked. The principle to be extracted from Donoghue's case can be stated in simple terms without
reference to a duty of care. By omitting what seems to me surplusage, the principle can be stated by adapting LORD ATKIN'S own words:
G 'A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the
products will result in an injury to the consumer's life or property is answerable to a consumer who has suffered injury or loss as a result of negligence in such
preparation or putting up.'
By putting into circulation potentially harmful things in that manner the manufacturer is not merely exercising a legal right but is H encroaching
upon the rights of others not to be exposed, when going about their lawful occasions and when accepting the implied general invitation to
acquire and use such commodities, to danger without warning and without their having a reasonable opportunity to become aware of such
danger before use. In other words, it is an encroachment
1954 (3) SA p487
VAN DEN HEEVER JA

upon the rights of others to set hidden snares for them in the exercise of their own rights. To refrain from doing so is a duty owing to the world
at large and in no sense owing to certain persons in advance and in particular. That being so there is no point in ascertaining the existence or
otherwise of the duty in order to determine whether the A person injured has or has not a legal remedy. In purporting to do so one only poses
the same question in different sets of words. It seems to me, therefore, that in this regard there is no essential difference between English law
and our own.
The basis of our law relating to redress for damage flowing from the negligence of others is the Aquilian action. Before a plaintiff can B succeed
in that action he must show that he has suffered damnum injuria datum at the hands of the defendant. In the primitive stages of its
development only the most obvious forms of invasion of another's rights would support the action, namely where the defendant had literally
slain, burnt or broken an asset which was the plaintiff's C property. By means of the actiones utiles based on formulae in factum and by
interpretation of the jurists the scope of the remedy was extended so that it protected not only a person's asset but his estate. The requisite
of immediate physical incursion into another's economic field was expanded to include also more mediate and less obvious forms D of such
encroachment. If one considers the title of the Digest on the Aquilian action (D. 9.2.) carefully, it becomes obvious that negligence never was
the sole hook upon which liability depended; the recognition of negligence merely served artificially to include certain kinds of reprehensible
conduct, which could not literally be classified as instances of occidere, urere or frangere, within the meaning of those terms. The requisite of
iniuria remained throughout.
E By extensive interpretation the law regards it as an inroad upon another's rights if I set something in the nature of a trap for him or his
property: if, purporting to give him medicine I furnish poison; if a barber shaves his customer where he is exposed to danger; if I dig a pit F into
which he may fall in the dark. In every such case in which the defendant was held liable we find that the trap is something which the plaintiff
could not by the exercise of ordinary care detect (D. 9.2.28.). If the circumstances were such that the barber's customer should have foreseen
the danger, Ulpian says de se queri debet (L. 11 h.t.). If the pit is situate where it may reasonably be expected, or G where by the exercise of
reasonable care he should have become aware of its existence, the plaintiff is without a remedy (L. 28 h.t.). The analogy is that of goods put
into circulation where the person responsible must have contemplated that they will be 'used at once before a reasonable opportunity of
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H the consumer'. (Heaven v
Pender, 11 Q.B.D. 503 at p. 510; Donoghue v Stevenson, supra, at p. 582). There is a limitation of liability, therefore, apart from but similar to
which he may fall in the dark. In every such case in which the defendant was held liable we find that the trap is something which the plaintiff
could not by the exercise of ordinary care detect (D. 9.2.28.). If the circumstances were such that the barber's customer should have foreseen
the danger, Ulpian says de se queri debet (L. 11 h.t.). If the pit is situate where it may reasonably be expected, or G where by the exercise of
reasonable care he should have become aware of its existence, the plaintiff is without a remedy (L. 28 h.t.). The analogy is that of goods put
into circulation where the person responsible must have contemplated that they will be 'used at once before a reasonable opportunity of
inspection' or where 'there can be no inspection by any purchaser and no reasonable preliminary inspection by H the consumer'. (Heaven v
Pender, 11 Q.B.D. 503 at p. 510; Donoghue v Stevenson, supra, at p. 582). There is a limitation of liability, therefore, apart from but similar to
the defence of contributory negligence.
In the present case it was common cause that respondent's conduct was not tainted with dolus. She has made no inroad into any right of
1954 (3) SA p488
VAN DEN HEEVER JA

plaintiff. The sole ground upon which she can be liable therefore is that she has made a constructive inroad by negligently creating something in
the nature of a trap. The exercise of elementary care would have enabled appellant to avoid it. Blandly proceeding to action upon the
information received from respondent was equivalent to using, not A immediately but at leisure a commodity which could easily be examined.
If a surveyor in an arrangement which falls short of being a legally enforceable contract undertakes to survey another's land and furnishes that
other with a wrong computation of the area or mistakenly points out B the boundaries and that other suffers loss in consequence, the surveyor
will be liable to him if there was dolus, but not if he was merely negligent or inefficient; for sibi imputare debet qui eum adhibuit. (D. 11.6.1.).
Great reliance was placed by appellant upon the decision in Perlman v Zoutendyk, 1934 CPD 151. The basis upon which that decision was C
distinguished in the Court a quo does not appeal to me as being sound. The fact that Perlman's case was decided on exception cannot affect
the principles of law applied therein. That case, however, was not in pari materia. Certain functionaries such as sworn appraisers, notaries and
the like have had a kind of patent of credibility and efficiency D conferred upon them by public authority. Members of the public are invited and
entitled to repose confidence and trust in the acts of such persons performed in their respective capacities. If the event should prove that such
confidence and trust were misplaced, it cannot be said of the person who trusted, 'de se queri debet'. To distinguish Perlman's case from the
present on the ground that here the plaintiff herself E created a risk which was not created by any conduct on the part of the defendant would
be to assert a baseless distinction. In both cases the causal connection between the wrong information put into circulation and the loss
suffered in consequence is exactly the same. If anything, in the present instance plaintiff's case is stronger, for the information F was furnished
directly to her whereas in Perlman's case there was no privity between the parties. If the element of the appraiser's public capacity and
function cannot be regarded as having been tacitly assumed in Perlman's case, I cannot agree with the reasoning of WATERMEYER, J. If applied
without qualification it would mean this: my shop and shops G in the vicinity are frequently visited by a catburglar; I negligently fix a weak
downdrain against the wall of my shop; as a reasonable man I should have foreseen the danger of the burglar scaling the drainpipe and coming
to grief; I could easily have guarded against the danger by fitting no drainpipe at all or placing a strong ladder there instead. I refuse to
believe, however, that these facts establish the existence of a duty owing by me to the burglar. If we gloss the word 'likelihood' H used in the
passage from the judgment in Cape Town Municipality v Paine quoted above by saying it 'must be understood to mean a possibility of harm
against which a reasonable man would take precautions'. as was done in Joffe & Co. Ltd v Hoskins & Another, 1941 AD 431 at p. 451 and Stride
v Reddin, 1944 AD 162 at p. 172, we
1954 (3) SA p489

VAN DEN HEEVER JA
merely enlarge upon the notion of conduct falling short of that which may be expected from the diligens paterfamilias. On the question, who
may exact diligentia from the paterfamilias, it throws no light at all. As a rule in rerum ipsius administratione non erat ab eo culpa exigenda (D.
23.3.18.1), whether or not he should have foreseen harmful A consequences to others. Taken by itself this test cannot answer the question,
Who may sue? If we say, the person who suffered 'harm against which a reasonable man would have taken precautions', we beg the question
and offer no guidance at all, for the question still remains, when is a reasonable man obliged to take precautions and against harm to whom
should they be taken? To this end the answer to the question, Who B is my neighbour? merely serves as a rationalised excuse for holding the
defendant liable. The answer can only make us wise after the event. Moreover the test is worthless, for as LORD REID remarked in Horton's
case (at p. 785):
'In some cases it is impracticable, and in many cases it is for one reason or another undesirable, to make that which a reasonable man would do a legal
obligation . . .'
C I deliberately adduced the extreme case of the catburglar to accentuate the difficulty I find in thinking that the excerpt from the judgment
in Paine's case, which I have quoted, is a complete touchstone of liability in cases of this kind. Postulate a slightly different situation. I have a
fairly large garden enclosed by a wall. In the D garden I have bearing vines. Nearby there is a boys' hostel, the inmates of which to my
knowledge frequently raid my garden and carry off my grapes. In the course of his employment my gardenboy digs a pit amongst the vines in
order to bury fallen leaves. One of the marauding boys falls into the pit at night and breaks a leg. Let us assume that my E grapes are as
alluring as the machine alluded to in Farmer v Robinson G. M. Co. Ltd., 1917 AD 501 at p. 520. To call the young thieves licensees would be a
legal fiction and it would be a similar fiction to hold that a reasonable man would not anticipate their presence in his garden. According to an
obiter dictum by INNES, C.J., in Farmer's case, at p. 523, I would be liable. Since the catburglar is prepared to risk F breaking his neck for the
loot which he expects to rob in my house, one may take it that he finds the prize as alluring as the boys find the grapes. Conceivably the two
cases may be distinguishable on emotional grounds, but if what I have called 'the touchstone' is to be the sole criterion, I can find no basis in
logic or legal principle to distinguish them.
G To say that the law allows underselling my competitor, whether it is done intentionally or negligently; that the law allows unrestricted building
upon one's unencumbered property, is a petitio principii for the rule is sic utere tuo ut alienum non laedas and the question still remains, when
does the user of my property or the exercise of my freedom of action become an unlawful laedere.
H It stands to reason that every right to redress implies a corresponding obligation. But the duty of care is owed to the world at large, not
directionally to certain persons ascertained after the event. Whatever the scope of the moral duty, not to cause foreseeable harm to others in
their persons or estates, may be, in law this duty is restricted
1954 (3) SA p490
VAN DEN HEEVER JA

in the interests of the individual's freedom of action and legitimate initiative. After all, law in a community is a means of effecting a compromise
between conflicting interests and it seems to me that according to the principles of RomanDutch law the Aquilian action in A respect of
damnum injuria datum can be instituted by a plaintiff against a defendant only if the latter has made an invasion of rights recognised by the
law as pertaining to the plaintiff; apart from that, loss lies where it falls. I do not invade the recognised rights of the burglar or the marauding
boys; on the contrary they invade my rights. I cannot understand how by their unlawful conduct they can virtually B impose a servitude upon
my property. Whether the injury to them is foreseeable therefore or not, they cannot apart from dolus sue me. The unwitting trespasser who
falls into a pit dug near the road is obviously in a different position; the distinction is not revelant to the present inquiry and to pursue it would
take me too far afield. It is C sufficient to say that the pit is a trap and a man is not outlawed because he unwittingly and excusably deviates
from a path in the dark. By driving a motor car in the street, I exercise equal rights with all other users of the road; but if I do so negligently
and dangerously, I invade the rights of other users by curtailing their equal rights. If I sell a powerful motorcycle to an impulsive young man,
experience and the D actuarial tables tell me that there is not only a possibility, but a distinct probability that sooner or later he will be involved
in a crash. As a reasonable man I can foresee harm to him and to others. Responsibility for his accidents will be his own, however, not mine.
Apart from such considerations as the actus interveniens of the purchaser and the remoteness of damages, I cannot be held liable, for I E am
not my brother's keeper. The position may be different if I negligently sell him a machine with a defective front fork; all firearms are dangerous,
but whereas a normal firearm does not constitute a trap, a defective firearm may well be one. The concept of the bonus paterfamilias is not
that of a timorous faintheart always in trepidation F lest he or others suffer some injury; on the contrary, he ventures out into the world,
engages in affairs and takes reasonable chances. He takes reasonable precautions to protect his person and property and expects others to do
likewise.
If, at a party attended by persons who to my knowledge speculate in gold G shares, I play the knowall and recklessly impart to others
not my brother's keeper. The position may be different if I negligently sell him a machine with a defective front fork; all firearms are dangerous,
but whereas a normal firearm does not constitute a trap, a defective firearm may well be one. The concept of the bonus paterfamilias is not
that of a timorous faintheart always in trepidation F lest he or others suffer some injury; on the contrary, he ventures out into the world,
engages in affairs and takes reasonable chances. He takes reasonable precautions to protect his person and property and expects others to do
likewise.
If, at a party attended by persons who to my knowledge speculate in gold G shares, I play the knowall and recklessly impart to others
pretended inside knowledge of the gold mines and they, acting in reliance upon my information suffer loss, we have all the elements of liability
propounded in Paine's case. Yet, if I am not bound by contract or statute to furnish correct information and I do not dispense false information
with fraudulent intent, I consider that I would not be liable. Merely to say that I owe them no duty of imparting nothing but H carefully checked
and considered information, is to beg the question.
I do not think that the distinction can be found, as was suggested in argument, in the difference between words and acts as the causae
causantes of the harm. Our law has grown out of its primitive myopy in the recognition of harmful causes. The manager of a
1954 (3) SA p491
HOEXTER JA
crowded theatre who, without having reasonable ground for it, shouts 'fire!' during a performance, cannot be heard to say that he aimed a
word, not blows, at the audience.
As I have said, the bonus paterfamilias is entitled to assume that like himself, other persons will take reasonable precautions against injury to
himself and his property. As I have indicated above, it was A recognised quite early in the development of the Aquilian action that the safety of
the individual and his property from concealed dangers in the nature of traps, against which he has no reasonable opportunity of guarding
himself in the normal course of his lawful pursuits, is an interest which the law will protect. A person who sets such a trap into which he may fall
therefore makes an inroad into his sphere of rights.
B Apart from contract, fraud or statutory provisions, I cannot imagine by what right one ordinary citizen can elicit from another ordinary citizen
information to be used at leisure and which can be tested for accuracy, and demand that the person furnishing it shall be a guarantor of its
correctness. No such exacting warranty is imposed upon C a person who puts tangible commodities into general circulation; why then should
greater responsibility attach to a person who puts wrong information into circulation?
Where there was no right to receive correct information, there was none to be infringed.
D In my judgment the appeal is dismissed with costs.
HOEXTER, J.A.: The facts of this appeal are set out in the judgment of my Brother VAN DEN HEEVER.
The locus classicus dealing with delictual culpa in our law is to be found E in the following passage from the judgment of INNES, C.J., in the
case of Cape Town Municipality v Paine, 1923 AD 207 at p. 216:
'It has repeatedly been laid down in this Court that accountability for unintentioned injury depends upon culpa the failure to observe that degree of care
which a reasonable man would have observed. I use the term reasonable man to denote the diligens paterfamilias of Roman law the average prudent person.
Every man has a right not to be injured F in his person or property by the negligence of another, and that involves a duty on each to exercise due and r
easonable care. The question whether, in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct
accordingly is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and
guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.'
G It seems obvious that the danger to which the learned CHIEF JUSTICE refers must be a danger created by the conduct of the person sought
to be held liable for negligence. At common law nobody is obliged to guard against a danger which has been created by the conduct of others.
One glance at the examples of negligence given in the books will make this clear. I see a man making a fire; as a reasonable man I foresee the
H danger that the fire will spread to the property of his neighbours; nevertheless there is no duty on me to guard against that danger. The
position is different where I create the danger by starting a fire myself; in that case it is my duty to guard it from spreading to the property of
my neighbours.
1954 (3) SA p492

HOEXTER JA
The appellant's case is, in effect, that the respondent was negligent because she failed to guard the appellant against the danger of suing the
wrong insurance company. But that was not a danger created by the conduct of the respondent. It may be said that potentially that danger A
was created by the terms of the Motor Vehicle Insurance Act, 1942, in giving a right of action against a registered insurer. It was no doubt for
this reason that the Act itself guarded against this danger by giving the person entitled to sue the right to require the relevant declaration of
insurance from the insured. The appellant failed to avail herself of the protection afforded by the Act and she has only herself to blame for the
result.
B The respondent was no doubt aware of the danger that the appellant might sue the wrong insurance company, but she did not create that
danger and was therefore not obliged to guard the respondent against it. Even if the appellant had said to the respondent, 'I realise the danger
C that I may sue the wrong insurance company and incur unnecessary costs; I want to guard against that danger and I do so by asking you
who is the insurer of your motor vehicle', she could not thereby have imposed upon the respondent the duty of guarding her against that
danger. The only way in which the appellant could have imposed that duty upon the respondent was by making a suitable contract with her. She
could have D asked the respondent not merely to give the name of the insurer but also to guarantee the correctness of her answer. But that is
not what she did. She merely asked for a bona fide reply to her question, assuming that such a reply would also be a correct one. In doing so
she knowingly assumed the risk that a bona fide reply might not be a correct E one. That was a risk which she created herself and not one
created by any conduct on the part of the respondent. This is the feature of the present case which distinguishes it from the case of Perlman v
Zoutendyk, 1934 CPD 151, which I shall assume to have been correctly decided. In that case the defendant, by his conduct in issuing the
incorrect appraisement, created the danger which subsequently caused F patrimonial loss to the plaintiff.
In following the judgment of INNES, C.J., in Paine's case I ought to make it clear that in my opinion the word 'injure' in the passage quoted does
not bear the same meaning as the word injuria in the expression G 'damnum injuria datum'. To give the word that meaning would be to make
gibberish of the passage quoted. It seems obvious that the learned CHIEF JUSTICE is referring to the element of damnum or patrimonial loss
when he uses the words 'to be injured in his person or property'. In the expression damnum injuria datum, the word injuria includes both dolus
and culpa, whereas in the passage quoted the learned CHIEF JUSTICE expressly excludes dolus and deals only with culpa. In his judgment H
there are two elements to be considered in determining whether the duty to take care has been established. The first is whether a reasonable
man would foresee that his conduct might cause patrimonial loss to others, and the second is whether a reasonable man would guard against
that danger. The second element is sometimes overlooked, but attention was specially
1954 (3) SA p493
FAGAN JA
directed to it in the case of Joffe & Co. Ltd v Hoskins and Another, 1941 AD 431 at p. 451.
The danger may be so slight or remote that a reasonable man would not guard against it. That was the position in Cecil v Champions Ltd., 1933
OPD 27 at p. 32 and in Wasserman v Union Government, 1934 AD 228 at p. 230.
A The conduct creating the danger may be expressly sanctioned by law; in that case no reasonable man would guard against the danger. That
is the position when an owner foresees that by building on his own property he will exclude a certain amount of light and air from his neighbour's
property. That is also the position when a reasonable man foresees that B his trading may result in a diminution of the trade of his competitors.
A reasonable man would foresee that the drainpipe running along his shop wall may not be strong enough to bear the weight of a cat burglar,
but he would regard the suggestion that he should protect the cat burglar against that danger as a distinctly humorous one.
C No doubt the second element which I have mentioned is not always specifically mentioned because in many cases it is obvious that a
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danger of driving his motor car at an excessive speed. In the case of D Perlman v Zoutendyk, supra, it was obvious that a reasonable sworn
property. That is also the position when a reasonable man foresees that B his trading may result in a diminution of the trade of his competitors.
A reasonable man would foresee that the drainpipe running along his shop wall may not be strong enough to bear the weight of a cat burglar,
but he would regard the suggestion that he should protect the cat burglar against that danger as a distinctly humorous one.
C No doubt the second element which I have mentioned is not always specifically mentioned because in many cases it is obvious that a
reasonable man would guard against the danger which he foresees. It is obvious, for instance, that a reasonable man would guard against the
danger of driving his motor car at an excessive speed. In the case of D Perlman v Zoutendyk, supra, it was obvious that a reasonable sworn
appraiser would guard against the danger that his valuation might cause patrimonial loss to others.
In short I can find no valid objections to the statement of the principles of the law of negligence in Paine's case, and I respectfully E agree with
that statement, which has never been dissented from in this Court. That statement excludes any liability for negligence on the part of the
respondent in the present case, and in my opinion it is on that ground that the appeal should be dismissed with costs.
FAGAN, J.A.: The facts are given in the judgment of my Brother VAN DEN F HEEVER. For the reasons that follow I come to the same conclusion.
In a series of articles on Aquilian Liability for Negligent Statements that appeared in the South African Law Journal in 1950 and 1951 (Vol. 67,
pp. 138, 257 and 411 and Vol. 68, p. 78) Professor T. W. Price G who strongly supports the view that the principles of the Lex Aquilia cover
such statements commences his discussion of the subject by giving some examples of damages suffered as a result of negligent statements
and then proceeds:
'It is remarkable what confusion and difference of opinion will result in legal circles over cases such as the above, not only in England and the United States,
but, if some had their way, in South Africa as well.'
In the course of these articles he refers to what he regards as inconsistencies in the decisions of South African courts in cases of H this
nature. The difficulty of finding a common principle for reconciling English decisions in similar cases has been pointed out in several articles that I
have come across in the Law Quarterly Review, inter alia Liability to Third Persons for Defective Accounts (April 1951, Vol.
1954 (3) SA p494
FAGAN JA
67, p. 173); Liability in Negligence for False Statements (same volume, p. 212), and 'Candler v Cane, Christmas & Co Negligent
Misrepresentation by Accountants' (October 1951, Vol. 67, p. 466). The lastmentioned of these articles, at pp. 476 479, also touches on
attempts by American courts to deal with the problem created by this type of case. The one clear deduction I find myself drawing from the A
decided cases is that judges, who have to evaluate general theories by the acid test of factual situations, have strongly felt the necessity for
limiting rather than extending the scope of liability for inaccurate statements.
The difficulty, to my mind, arises from the intricacy of the problem itself and the wide range of circumstances in which it may present itself. The
variety of human relationships is infinite, and legal B principles which do not admit of elasticity in their application to a particular set of facts
may hamper the court in dispensing justice instead of assisting it to do so. The courts that administer English law have more freedom than
RomanDutch law allows us to decide new problems without classifying them under general principles, and we would probably C not find a South
African judge using the same words as an American (WICKHAM, J, in Waube v Warrenton, 1935, 216 Wisconsin 603, quot ed in the Law
Quarterly Review, Vol. 67, at p. 476), who, when dealing with the question of the liability of the driver of a vehicle in respect of shock caused
to a mother by seeing her child run over in front of her home, said:
D 'The answer to this question cannot be reached solely by logic nor is it clear that it can be entirely disposed of by a consideration of what the defendant
ought reasonably to have anticipated as a consequence of his wrong. The answer must be reached by balancing the social interests involved in order to ascertain
how far the defendant's duty and the plaintiff's right may justly and expediently be extended.'
E But that is all the more reason why such elasticity as our general principles allow should be judiciously made use of.
In Perlman v, Zoutendyk, 1934 CPD 151, the Court (WATERMEYER and SUTTON, JJ.) applied to a negligent statement the general principle
enunciated in Cape Town Municipality v Paine, 1923 AD 207, that
'accountability for unintentioned injury depends upon culpa the failure to observe the degree of care which a reasonable man would have observed.'
F The 'reasonable man' is the 'diligens paterfamilias of Roman law the average prudent person' (per INNES, C.J., 1923 AD at p. 216).
'The question whether, in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be
decided in each case upon a consideration of all the circumstances'
G (ibidem at p. 217). This requirement of reasonableness in respect of which the court must exercise its judgment as to what the average
prudent person would have done in the circumstances seems to me to supply the elasticity required to keep liability for inaccurate statements
within what I may, with a repetition of the important word, call reasonable bounds. The reluctance of judges to leave a wide field for liability in
such cases, is to my mind, an indication of their feeling that the average prudent man is often inaccurate and that the H man who takes risks in
reliance on another's statement generally has only his own rash assumption of the accuracy of that statement to blame if he suffers loss.
I shall deal with the case before us on the basis that a reasonable man in the position of the respondent must have realised that the
1954 (3) SA p495

FAGAN JA
appellant might, and probably would, incur some expense in acting on the information supplied, and consider whether on this basis the
inaccuracy of the information should be ascribed to culpable negligence on the part of the respondent. The test that is relevant on this point
where a defendant has made a representation on which another may have been A expected to act and has acted to his detriment and which is
false is put in the following words by Professor Price in one of the articles to which I have referred (S.A.L.J., Vol. 67 at p. 257): 'Did he know it
was false, or would a reasonable man have known it was false?' The phrase used in one of the articles in the Law Quarterly Review (Vol. 67 at
p. 212) is:
'A statement . . . which is carelessly made in the sense that the B speaker had no reasonable ground for believing it.'
The mere inaccuracy of the statement was not sufficient to entitle the appellant to succeed; she had also to persuade the Court that it was
negligently made. I need not consider what our conclusion should have been if no explanation of the mistake had been given, for there was C
explanatory evidence. The respondent herself did not go into the witness box, but her attorney did; he was, indeed, put there as a witness for
the appellant, and his evidence on the crucial facts stands uncontradicted. He said that he and his client thought that the information they
gave was correct. There remains the question whether D the appellant has discharged the onus of proving that the respondent had no
reasonable ground for her erroneous belief. The evidence relevant on this point was to the effect that the respondent owned four motor
vehicles. She did not drive them herself, but employed drivers for them. Some of the vehicles were insured with the South British Insurance
Company, and she was under the impression that the vehicle involved in E the collision with the appellant's car was insured with that company.
It was only at a later date that, on a search by the attorneys of both parties, the insurance declaration relating to the vehicle in question was
found in the respondent's office amongst what was described by the appellant's attorney as 'an accumulated mass of papers', and it showed F
that this particular vehicle was insured with another company.
The explanation, then, amounts to this: that the respondent, knowing the South British Insurance Company as the insurer of vehicles of hers,
had in her own mind erroneously come to associate it also with the vehicle in question. I do not feel able to say, on this evidence, that the G
appellant had no reasonable ground for her belief. She could not be expected to anticipate that she might at some time be asked by a claimant
for damages to state who her insurers were; such a claimant would have his remedy under sec. 22 (2) of the Motor Vehicle Insurance Act, 29 of
1942, viz. that of calling for the insurance declaration. The appellant chose not to avail herself of this remedy, but merely to make a request, to
which the respondent's attorney gave a reply which he H described (to my mind rightly) as an act of courtesy. Having no reason to hold herself
prepared to make such courtesy replies, the respondent was under no duty, at any rate as far as the appellant was concerned, to keep her
papers neatly filed or to keep herself posted with the correct information about her insur ances; and if the erroneous association grew
1954 (3) SA p496
FAGAN JA
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papers neatly filed or to keep herself posted with the correct information about her insur ances; and if the erroneous association grew
1954 (3) SA p496
FAGAN JA
in her own mind into a firm impression, I do not see how that can be imputed to her as culpable negligence. We are imperfect beings, and even
very careful and prudent men may have faulty recollections, form erroneous associations of ideas and receive wrong mental impressions.
A Was it negligent of the respondent, or of her attorney, not to search for the insurance declaration form and check her belief by a reference
to it? The respondent was under no obligation to go to trouble or expense; but then, of course, she was under no obligation to answer at all,
and the question is whether she was not negligent in giving an answer without verifying its accuracy. If she had felt a doubt as to the B
correctness of her impression, or if her attorney had doubted her ability to give him correct information, failure to verify, or otherwise to indicate
the doubt in the reply, may well have been regarded as negligence. If, however, any conclusion has to be based on the hypothesis that the
respondent or her attorney felt at all doubtful about the correctness of her belief, it was for the appellant, on whom the onus rested, to
establish that hypothesis as a fact. The C respondent's attorney, as I have said, gave evidence as a witness for the appellant; he made the
positive statement that he and the appellant thought that the vehicle was insured with the South British; and there was no suggestion what
ever in his evidence, or even in questions put to him, of any uncertainty either in his own mind or in that of the respondent.
D The letter did not, either expressly or by implication, contain any assurance that the information had been verified by checking it with the
declaration of insurance or with any other document. The appellant seems to me to have gone ahead on the assumption that the owner of a
motor vehicle would not be mistaken about its insurer. In this case that E assumption was wrong, and the appellant had only herself to blame
for acting on a wrong assumption.
In Perlman v Zoutendyk, supra, the Court was not called upon at the exception stage to decide the issue of negligence; it had for the purpose
of the exception to accept the averments of negligence in the F declaration. When the case came to trial (1934 CPD 328) those averments
were carefully scrutinized (at pp. 333 334), and the only matters in which the defendant was held to have been negligent were his
misdescription of the property of the value of which he purported to give his skilled opinion and the misleading assertion that he had inspected
and valued that property whereas in fact he had done nothing G of the sort. The difference between such misleading statements in a
certificate purporting to be based on the exercise of professional skill and an honest but mistaken reply given as an act of courtesy is too
obvious to call for comment.
The bill of costs for which the appellant wishes to hold the respondent liable covers negotiations between the appellant and the South British H
Insurance Company as well as legal proceedings up to the filing of the company's plea. The appellant's attorney said in evidence:
'The South British Insurance Company never indicated at any stage that they were not the insurers of the vehicle in question, and in fact it was accepted in the
discussions that they were the insurers.'
One may fairly infer that either the appellant failed to give a sufficiently distinctive description of the vehicle, e.g. by mentioning its registration
number, or the company failed to check the information supplied with
1954 (3) SA p497
FAGAN JA
its records. Was not this laxity on the part of either or both of them the cause of the bulk of the wasted costs quite as much as and even
more directly than the respondent's inaccuracy? And do these mistakes of theirs differ in nature or degree from that of the respondent in such
a manner as to be excusable in their case but not in hers? I mention this to show how difficult it would be to draw an equitable line if we had to
hold an error such as the respondent made to A have been due to culpable negligence rendering her liable for another's reliance on her
infallibility.
I may also point out that the hypothetical reasonable man in the position of the respondent could hardly have expected the appellant to B incur
any greater expense if the information was wrong than that of paying her attorney for sending a letter of demand to the South British Insurance
Company and perusing the company's reply which would in the ordinary run of events have been a denial that it was the insurer. The English
Court of Appeal in Re Polemis & Another and Furness, Withy & Co. Ltd., 1921 (3) K.B. 560, recently followed in Thorogood v van den C Berghs
and Jurgens Ltd., 1951 (1) A.E.R. 682, decided that when once negligence is established by the foreseeability of some damage, the Court will
award the actual damage suffered even if it is such as could not have been reasonably anticipated provided that it is a direct consequence of
the defendant's act. These decisions have been severely D criticised cf. the article 'The Imaginary Necktie and the Rule in Re Polemis' in the
Law Quarterly Review of October 1952 (Vol. 68, p. 514). In view of my conclusion that the appellant had failed to discharge the onus of proving
culpa on the part of the respondent, it is unnecessary for me to consider whether the damages claimed in this case, beyond the paltry costs I
have indicated of a demand and a perusal of E the reply, would fall within the Re Polemis rule and whether, if it did, our courts would not
nevertheless regard it as too remote. (In England unless the House of Lords departs from the line that has been taken by the Court of Appeal
this case would not raise that problem at all, since the Court of Appeal has refused to recognise a negligent statement as giving rise to an
action in tort; cf. Le Lievre & Dennis v Gould, 1893 (1) Q.B. 491; Gandler's case, 1951 (2) K.B. 164; F Winfield on The Law of Tort, 5th ed.
para. 114, p. 391). It is, however, relevant to my actual decision to say that, to my mind, the triviality of the foreseeable damage is a factor
which the Court can take into account as having a bearing on the standard of care which may be expected from the reasonable man. I do not
think that he would be G expected to hold a cheap toy in his hand as securely as he should hold a valuable watch, or to keep a borrowed novel
locked away in his safe as he would a pearl necklace entrusted to his custody.
Since the appellant has, in my opinion, not discharged the onus of proving culpa on the part of the respondent, I agree that the appeal should
be dismissed with costs.
H Appellant's Attorneys: Philip Hilewitz, Johannesburg; Podlashuc Liebson & Klagsbrun, Pretoria; Lovius & Shtein, Bloemfontein. Respondent's
Attorneys: H. W. Chain, Johannesburg; Schwartz & Goldblatt, Pretoria; H. Louis Israel, Bloemfontein.

HERSCHEL V MRUPE 1954 (3) SA 464 (A)

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HERSCHEL v MRUPE 1954 (3) SA 464 (A) F

1954 (3) SA p464

Citation 1954 (3) SA 464 (A)

Court Appellate Division

Heard March 4, 1954

Judgment May 25, 1954

Annotations Link to Case Annotations

1954 (3) SA p465

1954 (3) SA p466

1954 (3) SA p466

1954 (3) SA p467

1954 (3) SA p468

1954 (3) SA p469

1954 (3) SA p470

1954 (3) SA p471

1954 (3) SA p472

1954 (3) SA p473

1954 (3) SA p474

1954 (3) SA p475

the learned CHIEF JUSTICE said,

1954 (3) SA p476

1954 (3) SA p477

1954 (3) SA p478

1954 (3) SA p479

1954 (3) SA p480

1954 (3) SA p481

VAN DEN HEEVER JA

1954 (3) SA p482

VAN DEN HEEVER JA

A (The Act intended to be referred to is 29 of 1942.)

1954 (3) SA p483

VAN DEN HEEVER JA

1954 (3) SA p484

VAN DEN HEEVER JA

1954 (3) SA p485

VAN DEN HEEVER JA

1954 (3) SA p486

1954 (3) SA p487

VAN DEN HEEVER JA

1954 (3) SA p488

VAN DEN HEEVER JA

1954 (3) SA p489

1954 (3) SA p490

VAN DEN HEEVER JA

1954 (3) SA p491

1954 (3) SA p492

1954 (3) SA p493

1954 (3) SA p494

1954 (3) SA p495

1954 (3) SA p496

1954 (3) SA p496

1954 (3) SA p497

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