that satisfaction should appear from the court file. Ms Petherbridge also contended that the damages were causally connected to the acts complained of and that those damages had been established. The test for absolution from the instance is well settled. It is succinctly summarised in Gordon Lloyd Page and Associates v Rivera and Another and followed by the Supreme Court in Stier v Henke. I turn to apply this test to the facts of this matter in respect of the two claims contended for. I agree with Mr Barnard that there can be no question of a case of malicious proceedings being made on a prima facie basis. The requisites for claim had not been pleaded. Nor had there in any event been evidence adduced on those requisites. As for an actio iniuriarum, a plaintiff is required to allege and prove an intention to injure the plaintiff. No allegation to that effect is made in the particulars of claim. Nor can it be implied from the other allegations. The gravamen of the case against the first defendant in the particulars of claim is one of a breach of his duty of care in obtaining a judgment wrongfully against the plaintiff for the reasons already stated. There is no allegation of an improper motive, malice or intending to injure the plaintiff by doing so. Nor were the allegations of that nature as against the other defendants. Nor could such an intention be inferred in respect of them. There would need to facts alleged from which such an intention could be inferred. The absence of such an allegation or it being implied is fatal to plaintiff’s claim based upon the actio iniuriarum. But the plaintiff also and in any event failed to make out a prima facie case of an intention to injure in respect of any of the defendants. In respect of the first defendant, the plaintiff acknowledged that he sought to accommodate her on more than occasion. She also accepted that he was seeking to provide a cost effective service to his client, the second defendant. An intention to injure was thus not remotely made out on a prima
that satisfaction should appear from the court file. Ms Petherbridge also contended that the damages were causally connected to the acts complained of and that those damages had been established. The test for absolution from the instance is well settled. It is succinctly summarised in Gordon Lloyd Page and Associates v Rivera and Another and followed by the Supreme Court in Stier v Henke. I turn to apply this test to the facts of this matter in respect of the two claims contended for. I agree with Mr Barnard that there can be no question of a case of malicious proceedings being made on a prima facie basis. The requisites for claim had not been pleaded. Nor had there in any event been evidence adduced on those requisites. As for an actio iniuriarum, a plaintiff is required to allege and prove an intention to injure the plaintiff. No allegation to that effect is made in the particulars of claim. Nor can it be implied from the other allegations. The gravamen of the case against the first defendant in the particulars of claim is one of a breach of his duty of care in obtaining a judgment wrongfully against the plaintiff for the reasons already stated. There is no allegation of an improper motive, malice or intending to injure the plaintiff by doing so. Nor were the allegations of that nature as against the other defendants. Nor could such an intention be inferred in respect of them. There would need to facts alleged from which such an intention could be inferred. The absence of such an allegation or it being implied is fatal to plaintiff’s claim based upon the actio iniuriarum. But the plaintiff also and in any event failed to make out a prima facie case of an intention to injure in respect of any of the defendants. In respect of the first defendant, the plaintiff acknowledged that he sought to accommodate her on more than occasion. She also accepted that he was seeking to provide a cost effective service to his client, the second defendant. An intention to injure was thus not remotely made out on a prima
Van%20Zyl%20v%20Bennie%20Venter%20Legal%20Practitioners%20(I%203792-2012)%20[2014]%20NAHCMD%20352%20(13%20November%202014).docx