Tödt v Ipser 1993 (3) SA 577 (A)

The case of Todt v Ipser revolves around a series of events involving the appellant, Mrs. Todt, and the respondent, Mr. Ipser, an attorney. The background facts are as follows:

Mrs. Todt and her husband were estate agents who had previously enjoyed a successful business and a high standard of living. However, by 1985, they faced significant financial difficulties due to a collapse in the property market, rising interest rates, and personal issues, including marital problems. In light of these challenges, Mrs. Todt sought legal assistance from Mr. Ipser for divorce proceedings.

In September 1985, Mr. Ipser closed the file on the divorce matter and issued a final account for R296.34, which included interest. At this time, Mrs. Todt was experiencing severe financial distress and, upon the advice of another attorney, applied for an administration order under Section 74 of the Magistrates' Courts Act. This order was granted on October 17, 1985, requiring her to make monthly payments of R60 towards her debts.

Importantly, Mr. Ipser was not included in the list of creditors submitted with the administration order application. He became aware of this order in late 1985 when his collections department was informed about it while collecting a debt from Mrs. Todt on behalf of another client.

On December 9, 1985, Mr. Ipser wrote to the administrator, requesting to be included in the list of creditors for an amount of R308.73, which included the original capital and interest. His attempts to have his claim recognised were unsuccessful, leading him to apply for leave to initiate proceedings against Mrs. Todt under Section 74P(1) of the Act on February 19, 1986. In this application, he acknowledged that any leave granted would be limited to obtaining a judgment and that he would not be able to execute the judgment while the administration order was in effect.

The magistrate granted Mr. Ipser's application, allowing him to issue summons and obtain a default judgment against Mrs. Todt for R340.34 plus interest. Despite obtaining this judgment, Mr. Ipser's efforts to have his claim included in the distribution of Mrs. Todt's estate continued to fail.

In August 1987, after becoming increasingly frustrated with the lack of payment and inclusion in the creditor list, Mr. Ipser initiated proceedings under Section 65A of the Act, which allows for the committal of a debtor for contempt of court if they fail to satisfy a judgment debt. He issued a notice to Mrs. Todt, which was not received by her, and subsequently obtained a committal order from the magistrate.

On April 11, 1988, Mr. Ipser prepared and signed a warrant for Mrs. Todt's arrest, instructing the messenger of the court to collect the outstanding balance. The warrant was executed on August 1, 1988, when Mrs. Todt was arrested despite her husband offering to pay the amount owed at the time of the arrest. She was taken to prison and released the following morning after the payment was made.

Following these events, Mrs. Todt claimed damages from Mr. Ipser for unlawful arrest and imprisonment, arguing that the proceedings initiated against her were invalid due to the absence of an enforceable judgment debt. The initial claim was dismissed by the Provincial Division, leading to the appeal in the Appellate Division, where the key legal issues regarding the lawfulness of the arrest and the liability of Mr. Ipser were examined.

The ratio decidendi of Todt v Ipser centers on the principle that a creditor cannot lawfully initiate proceedings for the arrest and imprisonment of a debtor under Section 65A of the Magistrates' Courts Act if there is no enforceable judgment debt to support such proceedings. The court held that the respondent, Mr. Ipser, acted unlawfully by instituting these proceedings without a valid judgment, as the conditions imposed by the magistrate in granting leave to initiate action specifically prohibited execution while the administration order was in effect.

Furthermore, the court established that liability for unlawful arrest does not require proof of animus injuriandi, meaning that the defendant's intention or awareness of unlawfulness is not necessary for liability to arise in cases of wrongful deprivation of liberty. The court concluded that the respondent's actions, which included issuing a warrant for the appellant's arrest based on an invalid judgment, constituted an unlawful act, rendering him liable for damages resulting from the appellant's arrest and imprisonment.

The court in Todt v Ipser relied on several cases in its reasoning process. Notably, it referenced the following:

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) - This case was cited to support the principle that conscious unlawfulness is not required for liability in cases of unlawful deprivation of liberty.

Smit v Meyerton Outfitters 1971 (1) SA 137 (T) - The court approved and applied the dictum from this case regarding the requirements for liability in cases of unlawful arrest, specifically noting that proof of animus injuriandi is not necessary for such claims.

Cohen Lazar & Co v Gibbs 1922 TPD 142 - This case was referenced in relation to the liability of a creditor who issues a warrant of execution without a supporting judgment.

Sliom v Wallach's Printing and Publishing Co Ltd 1925 TPD 650 - This case was cited to illustrate that a judgment obtained without proper citation is a nullity, supporting the argument that the respondent's actions were unlawful due to the absence of an enforceable judgment.