Pienaar v Jacobs [1910] ZASCOFSPD 21 (18 November 1910)

Malicious proceedings.-Malicious use of civil procedure.-Measure of damages.

Where P had obtained provisional sentence on a mortgage bond on the ground of non-payment of interest alleged to have been due, and J had set up a verbal agreement under which P had undertaken to allow an amount due to J for storage of an oil engine as a setoff against the interest, and on J's reopening the case it had been held that the verbal agreement had been proved, P being the only witness to deny the agreement, Held, on a claim in reconvention for damages on the ground of malicious use of civil procedure, that the measure of damages was the market value of the property sold at a loss by J to meet the costs incurred in defending the provisional case and paying the judgment debt and the attorney and client costs, any doubt as to the market value of the property sold being given in favour of J.