About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 114
|
|
Susanna v Clicks Group Ltd t/a Click Stores and Another (A 3102/2011) [2015] ZAGPJHC 114 (10 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A 3102/2011
DATE:
10 JUNE 2015
In the matter
between:
PIETERSE,
ESTHER
SUSANNA
...........................................................................................
Appellant
And
CLICKS GROUP
LTD t/a CLICK
STORES
.............................................................
First
Respondent
MELLO,
TRACY
......................................................................................................
Second
Respondent
JUDGMENT
SPILG,
J:
BACKGROUND
1.
The appeal is against the dismissal with
costs of the appellant’s claims based on defamation and
iniuria
against the second respondent and her
employer, Clicks Stores (‘
Clicks’)
.
Clicks is the first respondent. The cost order was awarded on the
attorney and client scale.
2.
It is common cause that during the morning
of 20 April 2010 the appellant purchased a number of items at a
Clicks store situated
in the Woodbridge Shopping Centre, Kempton
Park. Either while the appellant was paying at the till point
operated by the
second respondent, or as she was leaving the counter,
an incident occurred immediately upon which the appellant became
distraught
and insisted that the teller summon her superior. The
second respondent did so and avers that she apologised immediately
for the
incident. However the appellant claims that an apology was
made after the manager arrived and only after the appellant said that
she would institute legal proceedings.
3.
The most critical divergence in the
evidence of the respective parties relates to the incident itself:
The
appellant claimed that after she had paid and left the till point
with her parcels, but before exiting the store, the following
took
place:
The
second respondent said to her; “
Ma’am
your bag”
The
appellant believed that the second respondent was admiring her bag
and lifted it up for the second appellant to see.
The
second respondent said: “
No Ma’am
I saw you put something in your bag
”
The
appellant then placed the bag in front of the second respondent who
proceeded to open the side pocket and search it. The main
compartment
was not searched.
By
contrast the second respondent’s version of events is that the
incident occurred as she was ringing up the purchases, or
immediately
after doing so. It was at this point that she noticed the appellant,
who was then directly in front of her at the till
position, put
something in her handbag.
The
second respondent claims that she politely asked “
What
did you put in your handbag?”
The
appellant responded by shouting at her and insisted that the second
respondent call the manager. At no stage did the second
respondent search any compartment of the bag.
THE
PLEADINGS
4.
The appellant alleged in her summons
that the words and conduct of the second respondent were wrongful,
that they were intended
to mean, and were so understood by members of
the public and employees of the first respondent to mean, that the
appellant had
stolen items, was a thief , a criminal and was
dishonest. She averred that the alleged words used and the
physical searching
of her handbag was witnessed by members of the
public and other Click’s employees.
The
appellant claimed an amount of R50 000 for injury to her
reputation.
5.
The second claim was for
iniuria
and relied on the second respondent’s
words and conduct being intended to insult, humiliate and embarrass
the appellant. An
additional sum of R50 000 was claimed under
this head.
During
the appeal it was properly conceded that the alleged
iniuria
was to be treated as an alternative
claim to the defamation. See
Le Roux
v Dey (Freedom of Expression Institute &
Restorative Justice Centre as Amici Curiae)
2011
(3) SA 274
(CC),
2011 (6) BCLR 577
at paras
142 and 143.
6.
The first respondent was sued vicariously
as the second respondent had been acting in the course and scope of
her employment.
Both
the defamation and
iniuria
were
pleaded on the basis that the appellant was confronted by the second
respondent who, wrongfully and with intent to injure,
said that she
had seen the appellant “
put
something in her handbag”
and
proceeded to search it.
7.
In
their plea the respondents alleged that while ringing up the
appellant’s items at the till the second respondent saw the
appellant putting something in her hand bag and reasonably suspected
that the appellant had not paid for it. It was for this reason
that
the second respondent claimed to have politely enquired, to quote
from her testimony; “
what it is
that she is putting in her handbag
”.
The
respondents disputed that the appellant’s handbag was searched
and also denied that the alleged words and conduct were
wrongful or
were made with the intention to injure the appellant’s
reputation. They specifically pleaded that the second
respondent’s
enquiry was fair and justified in the circumstances.
THE
ISSUES
8.
The factual and legal issues are:
a.
Whether the incident occurred while the
appellant was still standing at the second respondent’s till
point or only after the
appellant had proceeded from the counter with
her parcels;
b.
Where, according to the second respondent,
was the appellant standing when she allegedly put something in her
handbag and can this
evidence be accepted?
It
is necessary to frame the issue in this fashion since one of the
magistrate’s key findings related to where the second
respondent claimed to have seen this occur.
c.
Whether the second respondent uttered the
words attributed to her by the appellant and whether the appellant’s
handbag was
partially searched;
d.
Whether the words used and any accompanying
conduct are defamatory in their primary or secondary meaning;
e.
Whether anyone witnessed the exchange;
f.
Whether the second respondent’s words
constituted a fair and justified enquiry in the circumstances
g.
Whether the second respondent intended to
insult, humiliate or embarrass the appellant and if not, whether lack
of intent constitutes
a competent defence in the present type of
defamation case or a defendant in this type of defamation suit must
show that he or
she was not negligent when making the statement.
MAGISTRATE’S
FINDINGS ON CREDIBILITY
9.
The magistrate delivered judgment on 22
September 2011 and a month later amplified her reasons in response to
a request under rule
51 of the Magistrates’ Court Rules.
The
trial had commenced in March of that year and it is evident that the
court did not have the benefit of a record either at the
time
judgment was handed down some six months later or when the additional
reasons were furnished.
10.
The first important feature is that the
magistrate did not consider the appellant or the second respondent to
be entirely credible
witnesses and added, in the supplementary
reasons, that they both “
gave
evidence to such an extent on certain aspects that the court cannot
accept the whole of their evidence to be the truth”
11.
Unfortunately the reasons for this view are
not readily discernable.
In
regard to the appellant: The court mentioned that she had insisted on
remaining in full public view when complaining to the second
respondent’s superior about the incident and this, said the
court, demonstrated that the appellant could not have been
embarrassed
by the incident as claimed. The finding constitutes with
respect an overly subjective view which fails to take into account
individual
personality traits; some persons may well insist on an
unequivocal public retraction in order to still any lingering
suspicion
of wrongdoing.
The
appellant was also critisised in the following terms:
“
It
is beyond the court’s understanding why plaintiff initially
indicated in her pleading that she was confronted at the exit
of the
store”
However,
it was defence counsel who put to the appellant that the second
respondent had enquired about the handbag “
as
you were leaving the store or upon your departure from the store”
.
The appellant responded that the incident occurred upon her departure
from the counter when she had already picked up her handbag
and
parcels.
There
was only a short distance between the end of the counter in question
and the exit. It therefore appears that loose terminology
was used in
the pleadings to describe the precise point where the appellant
claimed the incident had occurred, as nothing much
turned on it at
the time. Deviations from the pleadings are always a factor to be
considered. However their materiality or otherwise
and whether they
are readily explicable as loose drafting should also not be
overlooked.
12.
No illustrations were given to indicate why
the trial court found the second respondent’s testimony to be
unsatisfactory in
part.
13.
This court cannot therefore accept without
demur the magistrate’s findings regarding the credibility of
the appellant or the
second respondent.
In
Louwrens
v Oldwage
2006 (2) SA 161
(SCA) the trial court had preferred the plaintiff’s
version but failed to support it with any specific finding. On appeal
the failure to explain the basis for accepting one of the mutually
irreconcilable versions led Mthiyane JA (at the time) to state
[1]
:
“
I
do not think this is a case where, sitting as a Court of appeal, we
should defer to the trial Court's findings of credibility
because of
the peculiar advantages it had of seeing and hearing the witnesses.
Even if such findings were in fact made by the trial
Court, I do not
think that we are precluded from dealing with findings of fact which
do not in essence depend on personal impressions
made by a witness in
giving evidence, but are rather based predominantly upon inferences
from the facts and upon the probabilities.
In Union Spinning Mills
(Pty) Ltd v Paltex Dye House (Pty) Ltd and Another 2 this
Court, per Zulman JA, said:
'Although
Courts of appeal are slow to disturb findings of credibility they
generally have greater liberty to do so where a
finding of fact
does not essentially depend on the personal impression made by a
witness' demeanour but predominantly upon inferences
from other facts
and upon probabilities. In such a case a Court of appeal with the
benefit of an overall conspectus of the full
record may often be in a
better position to draw inferences, particularly in regard to
secondary facts.”
14.
The SCA also indicated that in such a case
the appeal court should evaluate and assess the credibility and
reliability of the witnesses
and also the probabilities before
concluding that one version is to be preferred above another.
15.
The circumstances of the present case
indicate that one may in addition have regard to the uncontradicted
evidence led and also
consider any inconsistencies in the testimony
of the individual witness concerned; this would have regard to the
pleadings and,
where applicable, deviations from the version put by
counsel.
THE
FINDINGS OF FACT
16.
Unfortunately the trial court failed to
consider the most crucial factual issue; namely, whether the second
respondent believed
that the appellant might have put an item in her
handbag with the intention of not paying for it. If this had been
appreciated
then the court would have been confronted by the glaring
inconsistencies in the respondents’ version regarding where she
claimed the appellant was positioned when the object (whatever it
might have been) was placed in the handbag.
17.
While the question of how close the
appellant was to the exit is not material, of significance in this
case is whether the
appellant was walking in the aisles still doing
her shopping or whether she was actually standing alongside the
till point
when the second respondent claims to have seen something
being put in the bag.
18.
The court found that:
“
It
is common cause that while she
(ie. the
appellant)
was between the aisles that
she had put something in the side compartment of her handbag, which
later according to her evidence
and that of Ms Mello (
the
second respondent)
seemed to be her
cellphone …
Plaintiff
herself admitted that she had put her cellphone into her handbag
after she had phoned her husband ….
It
is evident that out of the evidence before the court that 2
nd
defendant must have noticed the plaintiff while she was moving
between the aisles, she also noticed that complainant had put
something
in her handbag. That caused 2
nd
defendant to
suspect that plaintiff had something inside her handbag for which she
had not paid.
In
the circumstances the court cannot find that the suspicion of 2
nd
defendant was not reasonable.”
19.
The defence’s case, as already
mentioned, relied throughout on the second respondent believing that
the appellant had put
something in her handbag while she was standing
at the till: It was never the respondents’ version that this
occurred at
any time prior to the appellant reaching the till point.
Despite
this, according to the trial court the evidence of both parties was
to the effect that the second respondent observed the
appellant
putting something in her handbag while walking between the aisles.
The finding is clearly incorrect and amounts to a
misdirection. This
will be dealt with in greater detail when considering the court’s
finding that the second respondent had
reasonable grounds for
suspecting that the appellant was shoplifting.
20.
The magistrate’s findings can be
summarised as follows:
a.
The appellant testified that while walking
along the aisles she took her cellphone out from the handbag,
contacted her husband to
enquire whether he needed anything in the
store, then put the phone back while she was still in the aisles;
b.
This evidence was consistent with that
presented by the respondents as they contended that the appellant had
in fact put something
into the side compartment of her handbag while
walking along the aisles in the store.
I
have pointed out earlier that this finding is clearly wrong;
c.
The second respondent observed this and
drew the reasonable conclusion that the appellant had taken something
off the shelves and
concealed it in her handbag.
This
finding was also wrong;
d.
The second respondent only said to the
appellant “
Ma’am your
bag”.
In
this regard the magistrate overlooked the second respondent’s
testimony that she had followed this up by saying to the
appellant;
“
What is it that you were putting
inside your bag”
;
e.
The second respondent in fact searched the
side pocket of the handbag where the cell phone had been placed by
the appellant. The
magistrate considered that this was the object
that the second respondent must have observed being placed in the
handbag;
f.
Only one cashier’s point was open
when the incident occurred;
g.
There was insufficient evidence to show
that the incident occurred in full view of any other customer;
h.
There was no intention on the part of the
second respondent to act either wrongfully or to intentionally
prejudice or injure the
appellant as she was acting in accordance
with instructions she had received from her employer;
i.
The court case could have been avoided if
the appellant had not overreacted when confronted by the second
respondent.
21.
The magistrate concluded her judgment as
follows:
“
I
know that she might have felt a bit embarrassed say by the fact that
they wanted to have a look into her handbag, but I
cannot find
that that as such brings to the court, and constitutes that her
dignity indeed was impaired by the actions of
(the
second respondent) …
I am of the
opinion that if (
the appellant)
acted calmly and if she had nothing to
hide, if she knew she had done nothing wrong, and in the manner in
which she was approached,
it is not out of the normal spectrum of
behaviour inside stores in South Africa. If I … go to a number
of stores inside
Kempton Park there are a lot of places where you go
outside the shop, or when you leave the shop you are asked for a till
slip,
and that the till slip is compared to the items that you have
in your possession. If you have to sue each and every of these
people,
or feel embarrassed when they do it, you are never going to
enter a shop”
REASONABLE
SUSPICION
22.
In accordance
Louwrens
it is necessary to consider the
evidence in more detail. While the first set of findings by the trial
court reflects the evidence
of the appellant when asked about what
was put in her bag, it is a far cry from the defence’s version
that the appellant
had placed something in her handbag while standing
at the till.
23.
Several exchanges between the appellant and
the respondent’s counsel are illuminating. They demonstrate
that the respondents
disavowed any reliance on the appellant placing
an item in her handbag while still walking through the aisles.
24.
The first exchange took place when the
appellant disputed that she had placed something in her handbag
after the second respondent
had rung up the purchases. It
proceeded as follows:
Q:
“
. What were you putting into your handbag at the time when
she saw you?”- “I was not putting anything, except my
purse,
in my bag at the time of the transaction. In the aisle, or
actually she could see me at one stage, I am now thinking this. I was
busy on my phone and I placed my phone in my side pocket.”
Q:
“Ma’am you say you were busy on your cell phone. Were you
engaging in a cell phone conversation while your purchases
were being
rung up?”- “No.”
INTERJECTION
BY APPELLANT’S COUNSEL: “Your Worship the witness said
whilst she was in the aisle she was on her phone.”
COURT:
“That’s correct.”
Q:
“As the court pleases. I apologise your worship, I retract that
question. Ma’am so you were busy on your cell phone
at what
point?”- “As I was approaching the aisle of the vitamins,
I phoned my husband to ask him whether he needs anything.”
Q:
“
Ma’am we are not talking about your shopping in the
aisle
. Coming back to your position at Mrs Mello’s till
point,
were you busy on your cell phone when you were at the
till
?”- No.
Q:
“Okay. So when Mrs Mello looked at you, what were you putting
into your handbag? - After the transaction I placed my purse
in my
bag, and that is it.”
(emphasis
added)
25.
The second exchange occurred after the
appellant was asked whether it was possible that the second
respondent saw her put something
into the handbag which was not a
store item, to which she replied that it was not possible because she
had only put back her purse:
“
Q:
Precisely ma’am. You were not
putting anything except your purse- Yes
Q:
Is it possible that Mrs Mello had seen you put your purse into
your handbag and had thought that your purse was an item that
belonged
to the store, which was not paid for? Is that a possibility?
- Not possible
Q:
Why again?- Because she did not open the main compartment of
my handbag. She opened the side pocket.”
And
then a short while later;
“
Q:
Apart from your purse, was there
anything else that you were putting into your handbag
(while
you were at the till point)
- Nothing,
nothing, nothing.”
26.
The exchanges have been set out in detail
because it demonstrates that the respondents’ version was never
that the appellant
had put the cellphone back in her handbag while
still walking along the aisles. Moreover, despite the appellant
expressly stating
that she had put the cellphone in her handbag while
walking along the aisles respondents’ counsel persisted with
the version
that the appellant had only placed something in the
handbag while standing at the till; not earlier.
27.
Despite this clear line of
cross-examination the second respondent’s first piece of
evidence when led in-chief was that after
the appellant had paid she
asked:
“
What
are you putting inside your bag?”, she said ‘It is
a phone’. I asked her forgiveness. She was angry”
.
28.
The respondents’ counsel had not put
this version to the appellant. As the earlier extracts of the
appellant’s cross-examination
reveal there was ample
opportunity to have done so if this had been the respondents’
instructions. It is evident that
the second respondent’s
evidence was an afterthought.
29.
The second respondent’s change of
version however creates its own difficulties: If the exchange between
the second respondent
and the appellant had occurred in the fashion
she described then there would have been no reason for the appellant
to display the
degree of anger as testified to by the second
respondent. The second respondent was hard pressed to provide an
explanation when
the anomaly was put to her.
In
this regard the cross-examination of the second respondent on how she
could have believed that the appellant had put something
in her bag
while at the till is also revealing:
Q:
“On your version you and Mrs Pieterse are facing each other. At
precisely the moment you are facing each other you
ask her ‘what
is it that you are putting in your handbag?’ the question is
very simple, if you are facing each other,
how is it possible that
you do not see what she is putting in her handbag? Do you not have an
answer ma’am, because you are
just keeping quiet?”-
“Please repeat it.”
Q:
“If you are facing the plaintiff, at that precise point in time
that you’re facing each other, how is it possible
that you do
not see what she is putting into her handbag?”- “I
actually do not look at the customer. I only look at
the items that
she is about to pay for. In the meantime I am facing downwards, I do
not look as to what (inaudible) his or her.
I do not look and check
what he or she is holding in his or her hand.”
Q:
“So you do not care what you see or what you do not see, you
simply enquire from the customer ‘what is in your
handbag’-
At that stage I had finished putting her items on the side, then I
realised that she was putting something
in her handbag.”
It
will be observed that at no stage during the exchange did the second
respondent suggest that the incident may well have occurred
prior to
the appellant reaching the till.
30.
The evidence is clear. The appellant had
only taken out her purse while at the till and replaced it after
paying. Nothing else was
put in her bag at that stage.
The
defence was based on the second respondent reasonably suspecting that
while at the till point the appellant had put some item
of
merchandise in her handbag without paying for it. The
cross-examination proceeded on that basis and the reaction to the
appellant’s
answers did not indicate that the respondents were
relying on any prior act of concealment or that the appellant had put
her phone
in her handbag while at the till.
31.
On the contrary it was the appellant
who surmised that the second respondent must have had some line of
sight as she, the appellant,
was replacing the cellphone in her
handbag while still walking along the aisles.
Moreover
the second respondents’ version precluded this possibility
because she said, when asked if she could see other
customers
in the store at the time of the incident: “
Because
our aisles are high I cannot see those people who are behind the
aisles”
.
32.
The respondents bear the onus to
demonstrate the basis for the reasonable suspicion. They are not able
to get past the starting
blocks because they cannot show, on a
balance of probabilities, that their version of how the suspicion
came to be formed ought
to be accepted.
The
defence of reasonable suspicion to negative wrongfulness therefore
fails. This leaves for consideration whether there
was an
iniuria
,
the issue of publication and whether the requirement of fault was
satisfied.
INIURIA
BY WORD OR CONDUCT
33.
Since the magistrate erred in failing to
find that on the second respondent’s own version she could not
see the appellant
while the latter was walking between the aisles and
since the magistrate did not accept the respondents’ version
that something
was placed in the handbag at the till, it is necessary
to determine whether the second respondent uttered the words
complained
of and searched the appellant’s handbag in the
manner alleged.
34.
The magistrate only mentioned that the
second respondent had said “
Ma’am
your handbag”
and found that this
did not amount to an intention to embarrass.
However
the magistrate erred in failing to find that the second respondent
had followed up with the words; ““
What
is it that you were putting inside your bag?”
.
These
words are not much different to the appellant’s version;
namely, that after the second respondent had said “
Ma’am
your bag”
she then said “
No
Ma’am I saw you put something in your bag
”.
35.
Apropos to the search: The trial court
accepted the appellant’s version that the second respondent had
searched the side pocket
of the handbag. There was no
cross-appeal on this finding. In my view correctly so, considering
the overwhelming probabilities.
36.
On applying
Louwrens
it appears sufficient to accept the second respondent’s version
of what she said coupled with the trial court’s finding
that
the second respondent proceeded to search the side pocket of the
appellant’s handbag
37.
According to both parties the exchange
could not have occurred at any time prior to the appellant’s
purchases being scanned
by the second respondent at her till point.
That
being so, the words and actions of the second respondent were
intended to mean that the appellant had placed something in her
handbag at the till that had not been put on the counter for scanning
and that it was something other than her purse since
she had
already taken it out in order to pay. In their context the
words uttered could not have amounted to an innocuous
enquiry as they
were coloured by the second respondent proceeding to inspect a side
pocket of the appellant’s bag.
If
one disregards the appellant’s evidence that the second
respondent said the words in an accusing tone, then at the least
they
meant that the appellant was suspected of shoplifting. The
appellant’s immediate anger when this occurred was confirmed
by
the second respondent and demonstrates that the words were certainly
understood by the appellant to have this secondary meaning.
See
Sutter v Brown
1926
AD 155
at 166 in respect of a defamation claim and
Ciliza
v Minister of Police
1976 (4) SA 243
(N) for
iniuria
.
PUBLICATION
38.
The appellant’s claim of being
embarrassed when confronted by the second respondent lends some
credence to her testimony that
there was at least one other person in
the immediate vicinity who witnessed the incident. The appellant also
indicated during evidence,
but in another context, that a male staff
member had been working in the vicinity.
There
were also a number of contradictions in the evidence tendered by the
respondents as to whether more than one teller was serving
customers
when the store opened. Furthermore the store manager conceded that
she was unsighted and could not say if other customers
might have
been in the store at the time.
39.
Nonetheless the appellant bears the onus of
proving that there was publication.
Unlike
the previous issues which are resolved by accepting the second
respondent’s testimony there remain two conflicting
versions as
to whether anyone witnessed the incident.
40.
Despite the contradictions and other
aspects mentioned earlier, in applying
Louwrens
it is not possible, sitting on appeal,
to conclude that the probabilities favour the appellant’s
version. The magistrate’s
finding that the appellant failed to
prove publication therefore stands.
INTENTION
TO INJURE (
ANIMUS INIURIANDI
)
41.
The respondents pleaded in general terms a
lack of intention to injure and also relied on a genuine but mistaken
belief that the
appellant had committed, or may have committed, a
criminal act in their presence. The defence was put on
the
basis that the second respondent was doing her job based on what
she had seen; she was simply “
following
instructions and is merely a human being who is open to making
mistakes”
42.
Earlier, when dealing with the element of
wrongfulness, I set out the reasons for rejecting (on the facts) the
defence of reasonable
mistake. However, the defence as formulated
also relies on lack of
animus iniuriandi
(an intention to injure) and raises the
question of whether our law requires subjective intent for purposes
of satisfying the fault
element in the present type of defamation
case. It is recognised that subjective intent can take the form of
dolus directus
,
dolus
indirectus
or
dolus
eventualis
. See
Moaki
v Reckitt and Coleman (Africa) Ltd
1968(3)
SA 98 (A) at 104) and
Suid-Afrikaanse
Uitsaaikorporasie v O'Malley
1977 (3)
SA 394
(A) at 402H.
43.
Traditionally a genuine mistake rebuts
animus iniuriandi.
See
Nydoo v Vengtas
1965
(1) SA at 15. However if the mistake was made recklessly (in the
loose sense of that term when applied to
dolus
eventualis
), then as put by Neethling
et al
in
Neethling’s Law of
Personality
(2
nd
);
“
If the defendant’s mistake
can be attributed to such recklessness the defence must fail, because
consciousness of wrongfulness
is not absent in such a case”
.
44.
In the present case the respondents’
evidence through its store manager, Ms Mbalati, was that should a
member of staff “
see customers
maybe putting something in their bag, certain items in their bags,
they should ask the customer what that was”
.
However
she made it clear that staff were not allowed to conduct bag
searches. During cross examination Ms Mbalati conceded that
a staff
member who searched a customer’s handbag might be subject to
disciplinary action for transgressing store policy.
45.
In my view this evidence and the second
respondents’ denial that she had searched the side pocket of
the appellant’s
handbag are sufficient to show that the second
respondent knew that the consequence of searching the handbag would
be regarded
by the company as wrongful. On the basis of
dolus
eventualis,
the second respondent may
therefore be found to have the necessary intent to injure. However
such a finding would be limited to
that part of the
iniuria
attributable to the search; it would
not extend to the words uttered.
If
a strict subjective approach is applied, then a store that directs
its staff to search a person on suspicion of shoplifting would
be
able to raise lack of intent irrespective of whether there were
any reasonable grounds for conducting the search.
46.
The question arises whether, in a
suitable case, negligence ought to satisfy the requirement of fault.
In
this regard a number of cases require consideration.
47.
The starting point is
National
Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA) at 1210 to 1211 where the court rejected the established common
law position of absolute liability in cases involving defamation
by
the media but balanced it by reducing the fault element from
intention to negligence.
Subsequently
in
Marais v Groenewald
2001(1) SA 634 (T) at 645E-647B
van Dijkhorst J considered that negligence should suffice in all
other defamation cases.
48.
More recently in
Le
Roux v Dey
2010 (4) SA 210
(SCA) Harms
DP said the following at para 18;
“
van
Dijkhorst J
(in
Marais
)
not surprisingly, sought to develop the
common law in this regard by holding that a lack of coloured intent
could not be a defence
if it were due to negligence, a view
similar to that of FP van den Heever J (Kriek v Gunter
1940 OPD 136
,) Colman J(Hassen v Post Newspapers (Pty) Ltd and Others
1965 (3) SA
562
(W)at 570G - H), PQR Boberg (Animus injuriandi and mistake'
(1971) 88 SALJ 57)
and Burchell (Burchell I at 166 – 7)
.
However
on appeal to the Constitutional Court Brand AJ expressly left the
issue open. See
Le Roux
(ConCourt) at paras 136 and 137
49.
There are a number of specific exceptions
in the law of defamation where negligence is sufficient to attract
liability in a defamation
suit. These include defamation by the
media, false imprisonment and the wrongful attachment of goods (see
Boberg
The Law of Delict (vol1)
at
272 and
Neethling’s Law of
Personality
at 166 para 2.2.3.2.
Moreover
a negligent
statement is actionable
provided it causes patrimonial loss. See
Hershel
v Mrupe
1954(3) SA 464 (A) at 494-495.
50.
In the present matter there appears to be
an additional feature that arises when a customer suspected of
shoplifting is approached,
a feature which is not ordinarily
associated with the usual defamation or
iniuria
type of case. It is that the injurious words or actions effectively
result, however briefly, in a deprivation of liberty. A suspect
also
runs the risk of being physically restrained if he or she simply
walks away or otherwise fails to respond. The request may
also be
followed by a body search or, as in this case, a bag search.
51.
Whatever words are used by a staff member
or security guard to stop a person and enquire whether he or she
might have taken merchandise
from the store there remains the risk of
the suspect being expected to submit to a body or bag search failing
which he or she may
be required to wait for a search warrant or face
arrest on suspicion of theft.
52.
The practical effect would ordinarily be
that someone other than a police officer who asserts an entitlement
to question a customer
on suspicion of shoplifting will effectively
constrain the suspect from walking away. This would amount not only
to an invasion
of privacy but also a
de
facto
deprivation of liberty, even
though short of an actual arrest.
53.
A number of cases in the United States
involving the stopping and searching of customers appear to apply the
test of whether a reasonable
person in the circumstances would feel
free to decline the request made to stop or to otherwise end the
encounter. The mere fact
that someone acquiesces does not necessarily
make the search lawful. Duress or other forms of coercion such as
harassment or an
implicit threat may negative consent. See
generally
Corpus Juris Secundum
(‘
CJS
’)
(Vol 79) Searches
para
25.
The
issue appears to resolve itself as to whether the person under
suspicion exercised free will; although it is unclear whether
the
test is objective or subjective and whether it excludes the situation
where the suspect knows that incriminating evidence will
be found
[2]
.
54.
In the present case it is evident that the
second respondent was not entitled to conduct a search of the
customer’s personal
items, however cursory. This was not store
policy and she had been informed as much by her superiors.
55.
I turn to deal in greater detail with the
defence raised of lack of
animus
iniuriandi.
The
requirement for
animus iniuriandi
involves both an intention
to injure and knowledge of wrongfulness.
56.
While lack of
animus
iniuriandi
is pleaded, the defence
contended that the actions taken were not wrongful because the second
respondent reasonably suspected that
the appellant had stolen an item
of merchandise from the store.
The
first question is whether the test for fault should be relaxed in
defamation cases where lack of negligence is relied on to
negative
wrongfulness. For present purposes an
iniuria
is included,
since the principles applicable to this aspect of the enquiry are
common to both.
57.
The
starting point in the enquiry is that while reasonableness, within
the context of holding a reasonable suspicion, might exclude
a
genuine mistake it does not exclude negligence. For mistake to create
liability based on negligence the error must be unreasonable
[3]
.
The
test for negligence is premised on a deviation from the acts of a
reasonable person (the
diligens
paterfamilias
), which in turn is
informed by our constitutional values. See
Cape
Town Municipality v Paine
1923 AD 207
at 216 and its application to negligent statements in
Hershel
v Mrupe
1954(3) SA 464 (A) at 494-495.
See
Carmichele v Minister of
Safety and Security and another
2001(4)
SA 938 (CC) at paras 35, and 54-58 and
Rail Commuters
Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC)
per O’Regan J especially at paras 86-88 regarding the
application
of constitutional norms to the
common law test of reasonableness.
58.
If
negligence is extended to the
actio
iniuriarum
the
dividing line between defamation and a negligent statement (being by
contrast a claim under the
lex
Aquilia
)
becomes on the one hand blurred, but on the other more readily
comprehendible, bearing in mind that dignity is one of the most
cherished of our constitutional rights. See
S
v Makwanyane & Another,
[1995] ZACC 3
;
1995
(3) SA 391(CC)
at para 327
[4]
59.
In the case of defamation the element of
wrongfulness is
prima facie
established
and there are generally recognised defences negating wrongfulness
based on justification, such as truth and public interest,
fair
comment and privileged occasion. While the Aquilian action also
requires wrongfulness the defences are generally based on
lack of
negligence, foreseeability and remoteness rather than justification.
Of course, unlike the
actio iniuriarum
,
an Aquilian action is only supported if there is proof of actual
patrimonial loss.
60.
There appears to be no practical impediment
to align the requirement for fault in the
actio
iniuriarum
with the
Lex
Aquilia
more closely in cases where a
person purporting to exercise authority at a shop accuses a customer
of shoplifting, irrespective
of whether or not this is followed by a
request to search. The concern remains whether it is advisable,
having regard to its ramifications,
to extend liability in the
present type of case to acts of negligence.
61.
There are a number of considerations in
favour of extending the scope of liability to negligent acts in
defamation cases where a
customer is accused of actual theft or
suspicion of theft by a shop-owner or someone purporting to protect
his interests.
They
may be summarised as;
a.
the acceptance of reasonable suspicion as a
ground that will negative wrongfulness requires a consequential
tempering of the fault
requirement in order to maintain a fair
balance between the competing interests that underpin defamation law;
b.
alignment with constitutionally protected
rights;
c.
alignment with statutory provisions
regarding a private citizen’s entitlement to arrest,
detain or search under the
Criminal Procedure Act 51 of 1977 (‘
the
CPA’
).
62.
There are also a number of militating
factors. The first is the standard of reasonable care to be expected,
bearing in mind that
the person sought to be held liable may range
from large national chain stores employing private security guards to
the sole proprietor
of a small spaza shop. The second is that
everyone has a right to take reasonable measures to protect property.
63.
Before engaging these issues it is
advisable to consider the only two cases I was able to find
concerning a claim against a store
by a plaintiff who was accused of
shoplifting.
64.
In
Susman
v Mr Price Ltd
[2011]
ZAGPJHC 90 the court was required to consider claims for unlawful
detention and defamation arising from an incident where
the plaintiff
had been approached by a security guard before exiting a shop and was
requested to provide receipts for her purchases.
After verifying the
items she was carrying against the receipts he asked her to produce a
receipt for the shoes she was wearing.
The shoes still bore the “Mr
Price” price tag. The plaintiff said that she had purchased the
shoes at another branch
on the previous day. The guard then accused
her of stealing the shoes. The court found that the guard had acted
reasonably in the
circumstances of the case
[5]
.
The
plaintiff had also been taken to the privacy of a back office in the
store and after contacting her husband waited for him to
bring a
receipt for the shoes. Salduker J (at the time) considered that this
was part and parcel of the investigation carried out
to determine
whether the plaintiff had in fact been wearing the shoes when she
entered the store. The learned judge then said at
para 40:
“
In
my view, in these circumstances, the defendant’s employees and
security guard had a valid basis for stopping the plaintiff
at the
door after monitoring her movement’s, and were justified in
carrying out their investigation to verify the plaintiff’s
claims. In my view the procedure they followed in questioning her,
was reasonable in the circumstances. Significantly, the defendant’s
witnesses testified that the plaintiff was not regarded as a thief or
a shop lifter. This is not improbable as plaintiff was not
arrested
or detained at the management centre holding cell, which was the
normal procedure in the case of theft or shoplifting.”
Of
importance for present purposes is that on these facts the court
considered whether the plaintiff had been defamed. It applied
the
test of whether the defendant’s staff or contracted security
service personnel had acted reasonably when suspecting the
plaintiff
of shoplifting
[6]
.
65.
The court did not give reasons for applying
this test and it appears that the parties simply assumed it to be the
law, presumably
based on their understanding of
Damon
v Greatermans Stores Ltd and another
1984(4)
SA 143 (WLD)
.
Since there is no
ratio
on
the point
Susman
is
not be authority for the proposition that intention has been replaced
by negligence in this category of defamation case. Nonetheless
the
case reflects a judicial leaning.
66.
Damon
appears
to be the only other locally reported case within the last thirty or
so years where the staff of a private company either
accused someone
of shoplifting or actually arrested and detained the suspect.
In
that case the claims were based on unlawful arrest and detention, the
use of insulting and disparaging language and the invasion
of
privacy. The plea alleged that the arrest and detention were lawful
since the defendant’s employee, acting under the
bona fide
belief that the plaintiff had stolen articles of clothing from
the store, requested the latter to accompany him to an inside office
for questioning and after asking the plaintiff about the contents of
the carrier bag the staff member proceeded to search it. The
plea
also alleged that the plaintiff had consented to the search.
Boshoff
JP found on the facts that the first defendant’s employee “
had
reasonable grounds for believing that the plaintiff had stolen some
property from the store
”
[7]
.
The court also found that the events which occurred in the office
were consistent with the type of investigation one would expect
in
the circumstances in order to determine whether the plaintiff had
stolen any items
[8]
.
In
considering whether there was a claim for damages, the court held on
the facts that the defendants were justified in arresting
the
plaintiff without a warrant by reason of the provisions of section
42(1)(a) of the CPA. The section permits a private
citizen to
effect a lawful arrest without a warrant provided he or she
reasonably suspects the person arrested of having committed
a
Schedule 1 offence (which includes theft).
67.
The court in
Damon
also referred to sections 39 (1) and
(2) read with section 50(1) of the CPA which allow the person
effecting an arrest to forcibly
confine a suspect if the latter does
not submit to custody provided that the person arrested must, as soon
as possible after the
arrest, not only be informed of the reason for
the arrest but also be brought to a police station.
The
court furthermore pointed out that in terms of section 39(3) the
arrested person remains in lawful custody and is to be detained
until
he or she is lawfully discharged or released. See generally
Damon
at p148B-I.
68.
Boshoff
JP considered in some detail the private citizen’s rights when
apprehending a suspect to take him back into the store
and with
reasonable expedition question him and afford the suspect an
opportunity to provide an explanation or make representations
in the
privacy of an office with the minimum number of persons present
before taking him to a police station
[9]
.
The
judge concluded that in the circumstances of the case the store’s
employee was justified in arresting the plaintiff, in
using the
degree of force which brought the plaintiff under compulsion and to
detain him until he was released when nothing belonging
to the store
was found
[10]
.
On
analysis, the court considered the claim by reference to the
lawfulness of the arrest and not on the basis of a defamation action.
ACCEPTANCE
OF REASONABLE SUSPICION AS A DEFENCE
69.
The defence of ‘
reasonable
suspicion’
is not one of the
established defences to a defamation or
iniuria.
Although the courts have never
questioned its legitimacy, it remains a special defence based on the
absence of negligence. Allowing
a defence of reasonably suspicion in
such cases must by its nature involve both the elements of
wrongfulness (negated by justification)
and of fault.
70.
It would be anomalous to allow a
reasonable suspicion that the plaintiff was shoplifting to satisfy
the requirement of justification
while still retaining lack of
conscious intent in respect of the fault element as a basis for
permitting the defendant to escape
liability.
In
order to maintain a fair balance between the competing rights and
interests affected in this category of defamation case, allowing
want
of negligence to negative wrongfulness appears to require
consistency of application by replacing
animus iniuriandi
with
negligence ( in the form of a failure to demonstrate that the
suspicion was reasonably held) as sufficient to satisfy the fault
element.
71.
In
my respectful view, the line of reasoning adopted would be in parity
with that applied in
National
Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA) which held that in media cases strict liability yields to
freedom of expression as an acceptable justification negating
wrongfulness provided it is balanced by replacing
animus
iniuriandi
with
negligence
[11]
.
LAW
ENFORCEMENT BY PRIVATE CITIZENS
72.
The case of
Damon
demonstrates the synergies that exist
between, on the one hand, a private citizen effecting a lawful arrest
or search and on the
other, the same person being able to raise a
successful defence to a defamation action founded on the same
incident.
73.
An integrated approach will avoid anomalies
that would otherwise arise bearing in mind the narrow line between a
shop-owner stopping
a person suspected of shoplifting and depriving a
person of his liberty, however momentarily. The line becomes more
indistinct
when the suspect is not arrested but is asked or
implicitly required to submit to a search. This was traversed
earlier.
74.
In all these instances there is an
unexpressed requirement that the suspect complies, failing which more
embarrassing consequences
of arrest, detention and search are
likely to follow. Why should the consequences to an accuser who
purports to arrest the
suspect be any different to one who purports
to arrest if there was no reasonable suspicion that the customer had
been guilty of
pilfering? In both cases the suspect’s freedom
of movement is curtailed by someone who claims to exercise legitimate
authority.
The
remedy of wrongful arrest, detention and search would be available if
the individual insisted on his rights; but why should
he insist on
being formally arrested when he has already been insulted or has
otherwise suffered a loss of dignity or been humiliated
because the
accusation or request to search was not reasonable in the first
place?
To
suggest that the loss of self-esteem might have otherwise been
insignificant would diminish the store we place on the right to
dignity. And jurisprudentially, it would not provide a remedy to
someone who, in front of say his children or friends, was accused
of
shoplifting without there being reasonable grounds for suspicion;
more so if he is asked to then accompany the accuser to an
office.
Since
a person who is stopped at a store on suspicion of shoplifting will
have a claim based on negligent statement if patrimonial
loss can be
demonstrated (and the damages sustained are not too remote) there
appears to be no reason why an insult with its attendant
invasion on
an individual’s right to dignity should be subject to a higher
yardstick.
It
would also appear that on policy grounds subtle coercion without
proper cause should not be sanctioned. A failure to provide
a remedy
where a reasonable suspicion is absent may allow arbitrary profiling
on constitutionally unacceptable grounds, such as
race, religion,
ethnicity or class to masquerade under the guise of mistake.
75.
Anomalies may also arise in cases where it
is difficult to prove an actual arrest or detention despite the
suspect being effectively
required to answer questions or provide
proof despite there being no basis for a reasonable suspicion.
In
Susman
the court found that the plaintiff had not been
arrested even though she had waited in a private office in the store
until her
husband brought proof that the shoes had been bought
previously. It appears that if the suspicion of shoplifting had not
been reasonable
the court would have found for the plaintiff.
76.
There is a further consideration: It may be
argued that the statutory requirement of reasonable suspicion should
also inform the
common law test in defamation cases where an
individual claiming authority approaches another whom he or she
suspects of shoplifting
and effectively requires that person to
submit to some form of search.
If
that proposition is accepted then a private individual’s
entitlement to conduct a lawful search or to detain a suspect
is also
circumscribed by the CPA.
Section
39(3) of the CPA was mentioned earlier in relation to an arrest
having the effect of placing the suspect in lawful custody
until
lawfully discharged or released. So too section 50(1), which requires
the arrestor to bring the suspect to a police station
as soon as
possible (as explained in
Damon
).
However
there is no provision in the CPA entitling a private individual to
search the person or property of another
unless
he has
effected an arrest under section 42; and then he may only do so in
terms of the provisions of section 23 (1)(b) as read
with section 20
and section 23(2) of the CPA.
77.
In order to contextualise an individual’s
limited right to arrest, detain and search another person it is
necessary to consider
section 23 as a whole as read with section 20:
23 Search
of arrested person and seizure of article
(1)
On the arrest of any person, the person making the arrest may-
(a)
if he is a peace officer, search the person arrested and seize any
article referred to in section 20 which is found in the possession
of
or in the custody or under the control of the person arrested, and
where such peace officer is not a police official, he shall
forthwith
deliver any such article to a police official; or
(b)
if he is not a peace officer, seize any article referred to in
section 20 which is in the possession of or in the custody or
under
the control of the person arrested and shall forthwith deliver any
such article to a police official.
(2)
On the arrest of any person, the person making the arrest may place
in safe custody any object found on the person arrested
and which may
be used to cause bodily harm to himself or others.
20
State may seize certain articles
The
State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
(a)
which is concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence,
whether within the Republic or elsewhere;
(b)
which may afford evidence of the commission or suspected commission
of an offence, whether within the Republic or elsewhere;
or
(c)
which is intended to be used or is on reasonable grounds believed to
be intended to be used in the commission of an offence.
78.
The effect of these provisions is that;
a.
a private individual cannot search another
person without a warrant unless that person has been arrested or
voluntarily submits
to a search;
b.
the arrest itself could only have been
effected if the arrestor had reasonable grounds for believing that an
offence had been or
was being committed.
The
upshot is that an arrest or search will only be lawful if there was a
reasonable suspicion that the person apprehended had committed
or was
in the process of committing an offence.
79.
It follows that the element of fault in
defamation cases of this nature should be informed by those
provisions of the CPA which
determine the lawfulness of an arrest,
detention or search.
ALLIGNMENT
WITH THE CONSTITUTION
80.
A person who accuses a customer of
shoplifting assumes the right to approach, question and if need be
detain or subsequently search
the suspect. These actions would impact
in varying degrees on the constitutional right to:
a.
Dignity (section10);
b.
Freedom and security of the person, which
includes the right “
not to be
deprived of freedom arbitrarily or without just cause”
and “
not to be detained
without trial
” (sections 12(1)(a)
and (b) respectively);
c.
Privacy;
which includes “
the
right not to have their person searched, their property searched or
their possessions seized
”
(section14(a)-(c))
[12]
;
d.
Freedom of movement (section 21(1)).
81.
Against these are the competing rights of
an individual not to be deprived of property save under law (see
section 25(1)) and to
freedom of expression (section 16).
82.
Naturally all the affected rights are
subject to the limitation provisions of section 36 which allow an
infraction of the protected
right provided it is reasonable and
justifiable in an open and democratic society.
83.
It also appears that the right under
section 12(1)(a) not to be deprived of freedom “
arbitrarily
and without just cause
” would
have little content if a person is stopped and effectively required
to submit to questioning and a search in the absence
of a reasonable
suspicion of shoplifting. Just cause in the form of reasonable
suspicion is a prerequisite for establishing the
lawful entitlement
of a person to act in a way that effectively deprives another of his
or her liberty, or which entails a search
of an individual or of
possessions.
SUMMARY
84.
The analysis contained in the previous
sections has attempted to consider the issue from a number of key
perspectives and each appears
to support replacing intent with
negligence for the purpose of satisfying the fault requirement.
85.
A court is required to have regard to the
caution expressed in
Carmichele
at
paras 33 to 58 when taking a decision which may result in the
development of the common law as envisaged by section 39(2) of
the
Constitution.
86.
While negligence is regarded as sufficient
in certain categories of defamation it remains necessary to consider
the extent to which
the law of defamation would be affected and
whether there are adequate safeguards to avoid the net being cast too
wide. The first
is dealt with in the next topic; the second under the
heading “
Limitations”
THE
ELEMENTS OF WRONFULNESS AND
ANIMUS INIURIANDI
87.
As already indicated in order for a
statement or conduct to constitute defamatory matter (or an
iniuria
)
it must
inter alia
be wrongful and be made
animo
iniuriandi
.
88.
The element of wrongfulness is established
if, in the opinion of a reasonable person of ordinary intelligence
and development, the
publication has the “
tendency
to undermine, subvert or impair a person’s good name,
reputation, regard or the esteem of which he is held by the
community
” (see Neethling at page
135).
89.
It
will however not be wrongful if the defendant can demonstrate a valid
ground of justification, since the well-established grounds
mentioned
earlier do not constitute a closed group
[13]
.
The courts in
Damon
and
Susman
have
accepted (albeit inferentially) that an accusation of shoplifting and
any subsequent search or detention will be justified
if there were
reasonable grounds for suspecting that the person had stolen items
from the shop.
90.
Moreover lack of knowledge of the existence
of a particular delict does not negative wrongfulness, unless the
defendant is
culpa incapax
or
otherwise lacks accountability (a remote possibility in the case of a
staff member or security guard). In
Le
Roux
(ConCourt)
Brand
AJ said at para 137;
“
I
do not believe that knowledge of wrongfulness requires familiarity
with the existence of a particular delict.
Just
as much as it will be no defence in a criminal trial to plead
ignorance of a crime called crimen iniuria, ignorance of the
name of
the particular delict is simply no answer to delictual liability.”
91.
Accordingly there appears to be no need to
develop the element of wrongfulness in relation to the present
category of defamation
as it falls neatly within the existing common
law framework. Perhaps most importantly, and as demonstrated earlier,
wrongfulness
for the purposes of this type of defamation would
properly include actions that are unlawful in relation to a private
arrest, detention
or subsequent search by reason of statute.
92.
I turn to the requirement of
animus
iniuriandi
. It comprises two elements;
a.
an intention by the defendant to injure the
plaintiff’s reputation; and
b.
knowledge
by the defendant that the intended result is unlawful.
[14]
93.
It is unlikely that allowing a defamation
claim based on negligence will impact adversely on the intention to
injure. The mere fact
that a defendant believes that protection is
afforded because he suspects the plaintiff of committing a crime does
not mean that
however laudable the motive, he did not foresee the
possibility that the words used or conduct adopted might be
defamatory. See
Le Roux
(ConCourt)
at paras 131 to 133.
94.
However, applying a test based on
negligence in a case of this nature would result in most, if not all,
defendants being adversely
affected: An employee who accuses a
customer of shoplifting is unlikely to consider the intended result
as unlawful. Quite the
contrary, since the employee is likely to
believe that the apprehension of a suspected thief is a sanctioned
and lawful objective.
95.
Nonetheless, if negligence suffices in this
type of case, a shop-owner or an employee would still be able to
avoid liability if
he or she can demonstrate that there were
reasonable grounds for suspecting the customer of shoplifting. And a
genuine mistake
will suffice as it will not constitute negligence in
delict; it will only do so if there is a failure of reasonable care
(eg;
Margalit v Standard Bank of South
Africa Ltd and another
2013 (2) SA 466
(SCA) at para 23
96.
In the case of
Le
Roux v Dey
2010 (4) SA 210
(SCA) at
para 39 Harms DP said in a defamation case which did not
concern the media;
The
effect of this is that mistake or bona fides might in appropriate
circumstances justify a defamatory statement (ie if it were
reasonable to have been made) and that it is accordingly
not necessary to require coloured intent. I therefore conclude,
especially in view of precedent and the constitutional emphasis on
the protection of personality rights, that the animus injuriandi
requirement generally does not require consciousness of wrongfulness
(wederregtelikheidsbewussyn).
However
Brand AJ
in Le Roux
(ConCourt)
at para 137 considered that the issue of whether conscious
wrongfulness was still a requirement for
animus
iniuriandi
did not have to be
considered and expressly kept the issue open.
97.
If conscious wrongfulness is supplanted
with negligence as a requirement for defamation in cases of this
nature greater care will
be taken in respecting the dignity of
others. Tested another way; it would be an anathema to our society’s
norms, informed
as they are by our constitutional values, if a
defendant can be heard to say that he or she did not know that the
intended result
is unlawful because the plaintiff had raised in the
former’s mind a suspicions of criminal conduct, even if it
might have
been based purely on subjective racial, religious, ethnic
or other stereotyping
.
This
again suggests that policy considerations lean towards providing for
liability in the absence of reasonable suspicion in order
to preclude
profiling based on prejudice or other constitutionally unacceptable
grounds.
LIMITATIONS
98.
The test for fault on the basis of
negligence in the present type of case appears to embody adequate
safeguards.
In
this regard a defence of mistake will still succeed provided there is
reasonable suspicion
[15]
. Nor
is the equilibrium between the competing rights and interests
disturbed because a plaintiff could rely, in the claim or by
way of
replication, on a failure by the proprietor of the store to take
reasonable steps to ensure that staff or security guards
are
adequately trained or that in all the circumstances. The handling of
the incident may also be unreasonable having regard to
factors such
as the manner in which the plaintiff was approached and questioned
and whether the incident was handled with relative
discretion and
sensitivity or in an unduly excessive manner
[16]
.
By way of illustration, in both
Daman
and
Susman
the
court found that due regard was had to the privacy of the suspect.
99.
It should be accepted that by
extending liability for defamation to negligent acts an employer who
fails to take adequate steps
in ensuring that employees or security
guards engaged on its premises are adequately trained will open
itself up to liability for
defamation.
This
in turn may be interpreted as providing scope for liability in
relation to the way in which random searches are conducted,
or when
an individual is removed from a store or shopping mall that may
effectively be opened up to the public at large even though
the right
of admission is reserved
[17]
.
That is not the intention, since there are other complexities which
arise in such cases.
100.
The facts of this case do not require a
finding that a search without a prior arrest as required by the CPA
will itself amount to
an actionable
iniuria
irrespective of the circumstances. Even
if the failure to arrest renders the search wrongful, it does not
conclude the enquiry in
relation to the element of fault, dependent
as it is on the particular circumstances.
In
this regard
Damon
is
again apposite. In determining whether the defendant may have acted
outside the prescripts of the CPA, Boshoff JP’s made
the
following observations at 148I to 149B:
“
In
the case of suspected shoplifting it is not practicable to arrest the
suspected person until he has left the premises without
paying for
goods which he has taken. It will not be practicable for the person
in charge of security to decide whether a charge
should be made
unless subordinate or other employees are entitled to take an
arrested person back to the premises before he is
handed over to the
police. What is of considerable importance is that it is in the
interests of an arrested person himself that
he should not be charged
without being given an opportunity of offering any explanation or
making any representation to a responsible
officer. It is to his own
advantage that this opportunity should be given in the privacy of an
office with the minimum possible
number of persons present. If all
these steps are therefore taken with reasonable expedition and an
arrested person is only thereafter
brought to a police station, it
cannot be contended that he was not brought to a police station as
soon as possible within the
meaning of the phrase in the section; cf
John Lewis & Co Ltd v Tims
[1952] 1 All ER 1203
(HL).
Although
this was said in the context of a claim based on wrongful detention,
it has a bearing on defences that a court may accept
in the present
category of cases where there has not been a formal arrest.
101.
In the present case the issue does not
arise because there was no arrest alleged and in any event there was
neither a reasonable
basis for the suspicion nor did Clicks permit
its staff to search customers.
102.
The underlying principle remains that the
suspicion of shoplifting or pilfering and the reasonable steps that
should be taken to
guard against the accusation being untrue is to be
found in balancing the constitutional rights set out earlier and the
shop owner’s
rights to protect his or her property from theft
and by necessary extension the right to freedom of speech in such
circumstances.
The reasonableness of the steps would obviously vary
by reference to the means and size of the business.
103.
This
case is specifically limited to a person who, in the employ of a
store or shopping mall, or whose employer is contracted to
supply
security services, approaches someone on the basis of being suspected
of shoplifting
[18]
. In such a
case there is no practical reason for exempting liability if the
statement is not based on a reasonable suspicion.
The
magistrate considered the situation in the present case analogous to
conducting a random search
[19]
.
I disagree. By definition a random search is not preceded by the
person who asserts authority forming a suspicion regarding the
particular customer in question; and this would be understood by the
affected customers. Accordingly, unless constitutionally
objectionable profiling is also present, random searches will be
addressed at the stage of enquiring whether the actions constituted
an insult. It therefore cannot assist in the fault leg of the
enquiry, which presupposes a finding that the words or
actions do constitute defamatory matter.
This
decision therefore does not have to deal with the various competing
rights arising from privately conducted random searches
and their
lawfulness.
APPLICATION
TO THE CASE
104.
In the present case the admitted
statements together with the search of a compartment of the
appellant’s handbag amounted
to an insult.
105.
The second respondent failed to prove the
factual basis upon which she could have formed a reasonable suspicion
that the plaintiff
was shoplifting.
Furthermore
she exceeded the bounds of her authority and acted against express
company policy by commencing a search of the plaintiff
handbag. In
this regard it has already been demonstrated that by reason of
section 23(1) (b) of the CPA the second respondent could
not have
conducted a lawful search without first arresting the appellant
[20]
.
Accordingly
the respondents failed to provide a defence of justification which
could negative the element of wrongfulness.
106.
I have set out the reasons why
negligence will satisfy the requirement of fault in the present type
of case. I have also attempted
to explain why the second respondent’s
evidence that she believed that the item had been concealed while the
appellant was
at the till point is to be rejected, as it was by the
magistrate on a proper reading of her judgment.
The
finding that the alleged observation of the appellant putting
something in her handbag that was not paid for did not occur at
the
till point as contended for by the respondents precludes the defence
from relying on a genuine mistake. The second respondent
was also
negligent in searching a compartment of the appellant’s handbag
since the actions were unreasonably invasive in
the circumstances.
This is borne out by the respondents disavowing that any search had
been conducted.
107.
Accordingly the defence should not have
succeeded and the appellant is entitled to its claim based on
iniuria
.
That
leaves only the question of quantum for determination.
QUANTUM
108.
A number of cases have been considered. I
have borne in mind that in some there was actual publication.
109.
The first is
Le
Roux
where the Constitutional Court was
concerned with schoolchildren who had created and published a
computer image of the deputy principal
superimposed on an image of
two naked men sitting in a sexually suggestive posture. The SCA had
awarded damages in the sum of R45 000.
The Constitutional court
reduced the amount to R25 000 and ordered the children to tender
an unconditional apology.
110.
In
Tuch and
others NNO v Myerson and others NNO
2010 (2) SA 462
(SCA) the defamation consisted of an allegation that
the person had stolen between R5million to R6 million from his
brother. The
court held that the extent of the damage caused
was confined by the limited publication but that the allegation was
sufficiently
serious to justify an award of substantial damages. The
SCA awarded R30 000. The court referred to the case of Naylor
and Another v Jansen; Jansen v Naylor
and Others
2006 (3) SA 546
(SCA) at
paras 15 - 17, where the defendant had wrongly alleged that the
plaintiff had stolen money from his employer. However
the plaintiff
had been found guilty of misconduct involving dishonesty and the
trial court considered that this factor should have
been taken into
account which resulted in it reducing the award of R30 000 to
R15 000.
111.
Finally in
Crots
v Pretorius
2010 (6) SA 512
(SCA) the
SCA overturned a full bench decision that the magistrate had
correctly found the defendant liable in regard to an accusation
made
of stock theft. The report indicates that the full bench had
supported an award of damages of R20 000.
112.
In the present case the appellant was a
regular customer at the store, had her own shop and was falsely
accused in a public place
(albeit that no one might have witnessed
the incident) and suffered the further indignity of a pocket of her
handbag being opened
and search. The evidence of the second
respondent and the store manager confirmed that the appellant was
very upset. It is evident
that the
iniuria
impacted on her dignity and self-esteem.
113.
An ameliorating factor is that an apology
was tendered by the manager while the appellant was still in the
store.
114.
Cases can be envisaged where the damages
awarded against the employee may be less than that against the
employer. For instance an
employee may have genuinely but incorrectly
believed that her employer required her to apprehend a suspected
shoplifter in a particularly
invasive fashion. By contrast a higher
award against the employer may be justified where it had failed to
ensure that staff was
adequately trained although they were
instructed to apprehend suspects.
115.
There are no features in the present case
that would warrant deviating from the ordinary basis of holding the
employer vicariously
liable for the conduct of its employee. Even
though Clicks’ policy does not permit its staff to do so, the
search was conducted
for its benefit by the employee.
116.
In all the circumstances it appears that an
amount of R25 000 is appropriate and that costs should follow
the result.
ORDER
117.
The court orders that :
1.
The appeal is upheld in respect of claim 2 based on iniuria;
2.
The order of the court a quo is substituted with the following order;
The
first and second defendants are jointly and severally liable to pay
to the plaintiff, the one paying the other to be absolved;
i.
The sum of R25 000;
ii.
Costs of suit on the Magistrates’ Court party and party scale
3.
The first and second respondents are similarly liable to pay to the
plaintiff the costs of the appeal on the High Court party
and party
scale
I
agree
MLONZI,
AJ
It
is so ordered
SPILG,
J
DATE
OF ORDER 25 March 2015
DATE OF JUDGMENT: 10 June 2015
LEGAL
REPRESENTATIVES:
FOR
APPLICANT: Adv HP. West
Willie
Pieterse Attorneys
FOR
RESPONDENT: Adv EJ. Ferreira
Botha
and Sutherland Attorneys
[1]
Louwrens
at
para 14
[2]
CJS
ibid
at
paras 25 and 26
[3]
Compare Boberg
The
Law of Delict
at
272
[4]
In
Makwanyane
at para 327, O’Regan J said that:
“
The
right to life was entwined with the right to dignity. The right to
life was more than existence, it was a right to be treated
as a
human being with dignity, without dignity human life was
substantially diminished, without life there could be no dignity.”
See
also its application to damages in wrongful arrest and detention
cases in
Takawira v Minister of Police
[2013] ZAGPJHC
138,
2013 JOL 30554
at paras 38 to 43
.
[5]
At
para 38
[6]
At paras 50 and 51
[7]
At
147D
[8]
At
147H
[9]
Damon
at 148I-149C and comparing the House of Lords decision of
John
Lewis & Co Ltd v Tims
[1952] 1 All ER 1203 (HL).
[10]
At
149F
[11]
Bogoshi
at
1203D-1204A and 1209H-1212G
[12]
Section 14 of the Constitution
Privacy
Everyone has
the right to privacy, which includes the right not to have-
(a) their
person or home searched;
(b) their
property searched;
(c) their
possessions seized;
[13]
National
Media and others v Bogoshi
1998(4)
SA 1196 (A) at 1204D-F
[14]
See:
Suid-Afrikaanse
Uitsaaikorporasie v O’Malley
1977 (3) SA 394
(A) at 403;
Pakendorf
en andere v De Flaming
1983 (3) SA 146
A at 157 and LAWSA (2ed) vol 7 para 258
[15]
See
Damon
and
Susman
[16]
Compare
Bogoshi
at
1212H-J
[17]
See
Corpus
Juris Secundum (Vol 16A) Constitutional Law
paras
669and 670 citing
City
of Chicago v Rosser
47
Ill. 2d 10
, 264 N.E. 2d 158 (1970) and
Handen
v People of City of Colorado, Springs,
186
Colo. 284
,
526 P.2d 1310
(1974. The cases were concerned with the
First Amendment protection in relation to
the
right to peaceably assemble.
[18]
In Administrator, Transvaal v Traub
[1989] ZASCA 90
;
1989 (4) SA 731
(A) a 761D-G the
then Appellate Division court recognised that on occasion the law
may develop incrementally on a case by case
basis.
[19]
See
the extract from the judgment cited at para 21
supra
[20]
A
case which held this is
Alex
Cartage (Pty) Ltd v Minister of Transport
1986 (2) SA 838
(E) at 845F and 857D