RITENOTE PRINTERS (PVT) LTD & ANOR v A ADAM & CO (PVT) LTD 2014 (2) ZLR 314 (H) 2014 (2) ZLR p314

Flynote

Delict — Aquilian action and actio injuriarum — distinction between — liability for — single wrongful act causing patrimonial loss and personal harm — need for both causes of action to be pleaded need to plead wrongfulness and fault — even if defendant's action wrongful, fault must be proved — $\triangleright$ defendant acting in ignorance of law and on advice of legal practitioner — no fault shown

Headnote

The first plaintiff claimed damages arising from its alleged "unlawful, wrongful and malicious" eviction from two premises that it was leasing from the defendant. It claimed that it suffered damages due to loss of trade. The $\epsilon$ second plaintiff, a director of the first, claimed that, as a result of the unlawful eviction of the first plaintiff by the defendant, he suffered from chronic depression and was unable to run the affairs of the first plaintiff as he had done since its inception. In previous litigation, the defendant had obtained an eviction order in the magistrates court against the first $\epsilon$ plaintiff. Not realising that, the first plaintiff having noted an appeal, that leave to execute the eviction order was necessary, the defendant had the plaintiff evicted $\ast$ .

Held, that when the civil law should punish one person for wrongful or blameworthy conduct which causes harm to another question depends on the meaning of "wrongful", "blameworthy conduct" and "harm". The $\epsilon$ two main types of loss for which compensation can be claimed under the law of delict are wrongs of substance, leading to financial loss, and wrongs to personality, leading to sentimental loss. Wrongs of substance are wrongs which cause tangible harm, such as injury to a person including $\alpha$ psychological harm, damage to property and harm to economic interests. Not every harm suffered by a person is actionable in the field of delict. A person can only sue successfully in delict if the law of delict recognizes that there is legal liability for that type of harm. Most delictual actions in our system require proof of fault, either intention or negligence. The $\beta$ Aquilian action requires proof of either intention or negligence. The most important actions in our law of delict include the Aquilian action (actio legis Aquiliae) and the actio injuriarum. The Aquilian action provides a remedy for what are known as wrongs of substance. The actio injuriarum provides a remedy for wrongs to personality, a remedy for sentimental $\gamma$ loss or intangible harm.

Held, further, that part of the difficulty with the plaintiffs' claim was the failure to separate and recognize the differences between these two separate causes of action in the law of delict. Neither the summons nor the declaration expressly separated the Aquilian action from the actio injuriarum as causes of action, each of which has different requirements. $\triangleright$ The first plaintiff's remedies lay in the Aquilian action, and the second plaintiff's in the actio injuriarum.

Held, further, that in order to determine the wrongfulness of any given conduct, the court must make a value judgment based on, among other things, the current convictions of the community as to what is fair, just and equitable. Wrongfulness and fault are separate and distinct requirements of the $\epsilon$ actio legis Aquiliae. Both must be pleaded and proved: it must be proved that the defendant caused harm either intentionally or negligently. The requirement of wrongfulness entails proof of a harmful result occasioned in a legally reprehensible or unreasonable manner, while the enquiry into fault focuses on the legal blameworthiness or reprehensible state of $\epsilon$ mind and conduct of the defendant. While wrongfulness is determined by reference to public policy or the legal convictions of the community, fault is determined by reference to the foreseeability and preventability of harm by the defendant in the circumstances in which he actually was.

Held, further, that it was wrongful of the defendant to evict the first plaintiff $\epsilon$ unlawfully. The illegality, according to the judgment of the Supreme Court, stemmed from the fact that the defendant ought to have exhausted its remedies before the magistrates court and made an application for execution pending appeal. The defendant's prima facie wrongful conduct appeared to be based on ignorance of the law and reliance on the advice of its legal practitioner. Although wrongfulness was specifically pleaded $\eta$ (and there was no need to prove it because the Supreme Court had already pronounced on the issue, and declared the first plaintiff's eviction to have been unlawful), the element of fault was neither specifically pleaded, nor proved. Both the magistrates court and the High Court acted under a misapprehension of the law, and so no blame could be laid at the door of the defendant, which accepted the advice of its legal practitioner. Proof of fault would have required evidence of more than wrongfulness or unlawfulness, or consequential harm; it would have required evidence of intention or negligence to establish a reasonable inference of liability.