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[2017] ZAWCHC 60
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Snyman v Van Tonder (16402/2016) [2017] ZAWCHC 60 (24 May 2017)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 16402/2016
Before: The Hon. Mr Justice Binns-Ward
Hearing: 22 May 2017
Judgment:
24 May 2017
In
the matter between:
JOSEPH
FREDERICK
SNYMAN
Plaintiff/Respondent
and
EBEN
JOHANNES VAN
TONDER
Defendant/Excipient
JUDGMENT
BINNS-WARD
J:
[1]
The defendant has
noted an exception to the plaintiff’s particulars of claim on
the bases that they failed to make out a cause
of action,
alternatively, that they are vague and embarrassing.
[2]
The pleaded claim is
one for ‘constitutional damages’ and purports, according
to its tenor, to be founded directly on
the Constitution.
Notably, it is not one for compensation in respect of pecuniary loss
or financial harm alleged to have
been suffered, as could be pleaded
under the Aquilian action; nor has it been framed as a claim for
damages for an
injuria
.
Insofar as it lends itself to characterisation, the claim appears
instead to be for a
solatium
in respect the alleged infringement by the defendant of certain of
the plaintiff’s basic rights.
[3]
As appositely argued by Mr
Cilliers
,
counsel for the defendant, with reference to the judgments in
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC),
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae); President of
the RSA and others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, Amici Curiae)
2004
(6) SA 40
(SCA),
MEC,
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA)
and
Minister
of Police v Mboweni and another
2014 (6) SA 256
(SCA), ‘the South African cases in which constitutional damages
have been awarded (or even seriously and directly considered)
to date
have not only been confined to situations involving patrimonial loss,
but have … invariably [also] been characterised
by (a) the
involvement of the State or at least the presence of a public law
element (i.e. government authority pitted against
those without it),
(b) exceptional circumstances giving rise to the necessity of
recognising and awarding constitutional damages
as a remedy, or both
(a) and (b)’.
[1]
[4]
Whether a remedy in
constitutional damages is appropriately available in a case depends
on the given circumstances. The existence
and character of the
circumstances allegedly giving rise to a cognisable claim for such
damages would have to appear in the particulars
of claim in any
action in which such damages were claimed.
[5]
Legal policy
determines whether or not a claim for such damages is cognisable in
the given circumstances. In my judgment the
prevailing legal
policy has been summed up correctly in Joubert el (eds) LAWSA 3rd ed.
vol. 15, §
Delict
,
para. 6, at p. 10: ‘‘
A
constitutional remedy does not aim to compensate and such an award
should be considered in only the most exceptional circumstances,
when
compelling reasons so dictate, and only if there is no other
compensatory remedy available in law
.
In delict,
an award for damages is the primary remedy; in constitutional law, an
award for damages is a secondary remedy, to be
made only in
appropriate cases when other remedies would not be effective
’.
[6]
It is well established that in the public
law context, damages will be given as a remedy for an infringement of
constitutional rights
only exceptionally. In addition to the
cases mentioned earlier, see
Steenkamp v
Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC). The nature of the remedy appropriate
to redress such infringements should in the first instance be
directed at
asserting or vindicating the right concerned. If
the infringements have caused harm compensable in a delictual action,
compensatory
damages should be sought in delict.
[7]
In the current case the nature of the claim
is encapsulated in paras. 3-5 of the particulars of claim, which,
together with the
prayers for relief, read as follows:
3. Since December 2011, when the defendant unlawfully
purchased the plaintiff’s house from Absa bank based on a
fabricated
bond mortgage, he has been constantly harassed,
intimidated, pestered, tormented and persecuted by the defendant, who
has been
using all means of coercion and unbearable pressure to
terrorize the plaintiff and his family and to illegally force them to
vacate
the house.
4. Despite the fact that the sale of the house was
declared to be illegal by the high court and also notwithstanding the
fact that
there is a pending constitutional court application
relating to the declaration of the right of ownership of the house,
the defendant
has illegally advertised the house for sale and
organized some hooligans to terrorize the plaintiff and his family to
abandon the
house.
5. As a result of all the matters aforesaid, the
plaintiff therefore claims for constitutional damages based inter
alia on the following
grounds:
5.1
Violation of his right to own property.
5.2
Violation of his right to proper legal due process.
5.3
Violation of his right to privacy.
5.4
Violation of his right to dignity.
5.5 Violation of his right to justice.
5.6 Violation of his right to equal treatment and not to
be abused, harassed or ill-treated.
5.7 Violation or threatened violation of his right to
life.
Moreover, the constant hounding, tormenting and
pestering by the defendant, has created a ceaseless stress condition,
interminable
tantrums and incessant dependence on tranquillizers and
other sedative drugs which seriously affect his health condition.
WHEREFORE, the plaintiff prays for judgement against the
defendant for:
5.7.1 R1 000 000 (one
million) constitutional damages.
5.7.2 Further and/or alternative
relief.
5.7.3 Payment of all the plaintiff’s
wasted costs.
[8]
The appropriate remedy in respect of the
allegedly constant harassment, torment and persecution by the
defendant of the plaintiff
would be a prohibitory interdict.
Monetary compensation for the allegedly emotionally and physically
harmful effects of the
plaintiff’s allegedly unlawful conduct
would appropriately fall to be claimed in an action pleaded in
delict. The particulars
of claim do not make out a claim for
either of the remedies that might be appropriate on the pleaded
facts. They also do
not make out a case for an exceptional
remedy by way of an award in money.
[9]
The exception therefore falls to be
upheld. The defendant has prayed for the dismissal of the
action. It seems to me,
however, that it would be appropriate,
as is customary in such circumstances, to afford the plaintiff a
reasonable opportunity
to amend its pleading. The order will
provide that in the event of him failing to do so within the time
afforded the action
will
ipso facto
be deemed to have been dismissed with costs.
[10]
I should mention in closing that the
plaintiff failed to appear, either in person or through a legal
representative, when the exception
was called, and the matter was
therefore heard in his absence. What purported to be an
application for a postponement of
the matter had been delivered
shortly before the hearing. Answering papers opposing the
postponement had been put in by the
defendant. The basis for
the postponement that was sought was the non-availability of a
certain Jozana Ka Mahwanqa, who,
it would appear, is advising or
supporting the plaintiff in some capacity in these proceedings.
It is evident from the papers
that Ka Mahwanqa acknowledges that he
has no right of appearance in this court, but apparently intended to
apply for admission
to the proceedings as
amicus
curiae
. No application for
admission has been received, and, in any event it is difficult to
imagine how the court could have found
Ka Mahwanqa’s
intervention of assistance other than in the capacity of a qualified
legal representative with right of appearance,
which he is not.
(The opposing affidavit in the postponement application drew
attention to a previous attempt by Ka Mahwanqa
unsuccessfully to
obtain audience in the Supreme Court of Appeal on behalf of the
plaintiff in another matter; see
Absa
Bank Ltd v Snyman
2015 (4) SA 329
(SCA)
at paras. 8 and 9.) In default of any appearance in support of
it, the application for postponement was struck from
the roll.
[11]
The following order is made:
(a)
The
defendant’s exception to the plaintiff’s particulars of
claim is upheld with costs.
(b)
The
plaintiff is hereby afforded an opportunity to give notice in terms
of rule 28 of the Uniform Rules within 20 days of the date
of this
order of his intention to amend his particulars of claim.
(c)
In
the event of the plaintiff failing to give notice as permitted in
terms of paragraph (b)
of this order within
the period therein provided, the action shall thereupon,
ipso
facto
, be deemed to have been dismissed
with costs.
A.G. BINNS-WARD
Judge of the High Court
[1]
Para. 14 of
the defendant’s counsel’s heads.