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[2020] ZAGPJHC 265
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S M v A B (20/1732) [2020] ZAGPJHC 265 (11 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No. 20/1732
In
the matter between
:
M,
S APPLICANT
And
B,
A RESPONDENT
Coram:
Millar AJ
Heard
on
:
01
September 2020
De
l
ive
r
ed:
11 September 2020 - This judgment
was handed down electronically by circulation to the parties'
representatives by email
,
by
being uploaded to the
CaseLines
system of the GLD and by release
to SAFLII.
The date and
time
for
hand-down is
deemed to
be
10H00
on
11
September 2020.
Summary:
Civil
Law and procedure - requirements for granting of a final interdict -
whether claim for damages an appropriate alternative
remedy for
ongoing infringement of rights to dignity and privacy - finding that
due to ongoing nature of infringement damages not
appropriate - final
interdict granted.
ORDER
It
is ordered:
[1]. Paragraph 3 of the Order granted
on 28 July 2020 reading:
"3.
The respondent is interdicted and restrained from copying, using,
sharing, disseminating
,
distributing
and/or publishing the applicants private and confidential information
being
,
Contacts
,
WhatsApp
messages, Instant Messenger,
MMS
,
/
-Message
,
SMS,
photographs,
videos,
and/or
audio
files
emanating and/or downloaded from cellular number […] and/or
the
[…]
account"
is confirmed
.
[2] The Respondent is ordered to pay
the costs of this Application on the scale as between attorney and
client.
JUDGMENT
MILLAR,
A J
[1]
This 28 July 2020, the Applicant
approached the urgent Court
ex parte
and
in
camera for an order to interdict the use and distribution of certain
personal information which had come into the possession
of the
Respondent.
[2]
The Applicant and Respondent were
previously married to one another on 2 May 2002 and were divorced on
13 November 2015. The parties
have two minor children (one of whom is
the biological child of the Respondent –
born
on 2
November 2005) and in consequence of this, have had to interact with
one another in the interests of those children.
[3]
At the time the parties divorced, the
Applicant's personal email address was hosted
as
part
of
the
Respondent's "iCloud account"
and
her
cellular
telephone paid for by one of the
Respondent's companies.
[4]
This state of affairs persisted for a
number of years without incident. It is not disputed that the
Respondent knew that the email address
and the contents of the
particular
email account were the
personal
property of
the
Applicant or
that
cell phone number and sim card, although paid for by his company,
were the personal property of the Applicant.
[5]
On 2 September 2019, the
.
Respondent, unbeknown to the Applicant,
accessed and copied all the emails in the Applicant's email account.
According to the Respondent,
he looked at these emails and also
distributed these to third parties. The Applicant was never made
aware of this although she
had at this time opened a new email
account because of what she had regarded as suspicious activity on
the one she had been using
all
along.
[6]
During November 2019, the parties
instituted applications against each other in the maintenance Court,
in the case of the Applicant
for an increase and payment of arrears
and in the case of the Respondent for a
reduction.
[7]
Notwithstanding the Respondent's
possession of the emails and messages since September 2019, it was
only on 2 April 2020 that the
Respondent disclosed to the Applicant
that he was in possession of the emails and messages
.
[8]
On 2 April 2020, the Applicant's
attorney addressed a lengthy 18 page letter, excluding annexures
,
to the Respondent's attorneys
.
This letter summarized the history of
the disputes between the parties and particularly in
regard to the financial issues that had
arisen between them. The letter dealt with
inter
alia
the failure on the part of the
Respondent to pay the minor child's medical aid and medical bills as
well as school fees but also
with the Respondent's accessing the
Applicant's private
information.
The
letter
also
dealt
with
various proposals made by the Respondent
to resolve the financial impasse.
[9]
On the same day
,
the Respondent attempted to contac
t
the Applicant by obtaining her new cell
phone number from the
minor.
When the minor refused to disclose the
Applicant's cell phone number, he then emailed the Applicant
attaching various audio and
visual messages he had accessed with the
message
"Waiting for your call
".
This email was sent at 16h59 on that
day
,
presumably after the letter from the Applicant's attorney to the
Respondent's attorney had been received. This email was followed
at
18h13 by a second email from the Respondent to the Applicant in which
he stated
"
S
call
me
to discuss the way forward
.
Ignoring my attempts to settle
the impasse will only cause more damage".
[10]
It was not in dispute between the
parties that the extent of the emails, audio files and chats number
some 12 209 items. In respect
of the minor child, her WhatsApp
conversations when printed, fill over some 450 pages of content.
[11]
The letter predictably provoked a
response the very next day from the Respondent's attorneys on 3 April
2020. It is in this letter
that the Respondent's access to both the
email and WhatsApp messages and chats on
the
cell
phone accounts of
both
the
Applicant and the
minor
were disclosed. In the letter
,
the
Respondent sought to justify his accessing of the information on the
basis that since the email account was part of his own
email account
and that since the cell phone accounts were paid for by one of his
companies
,
he was the ostensible owner of the information
.
[12]
In the relatively short period of time
between the accessing of the WhatsApp conversations and images and
audio files on 2 April
2020, the Respondent was able by 3 April 2020
to instruct his attorneys to record that:
"5
.
The information on the phone displays
extreme prescription medication addiction and abuse
,
as well as regular recreational drug and
benzodiazepine abuse. Your client regularly participates in sordid
sexual encounters and
orgys with various individuals, including
married couples. The exchanges go further detailing the additional
income received by
your client, the holidays and weekends away
enjoyed by her and paid for by her paramour, and the funding of the
current litigation,
again undertaken by her paramour. Further still,
assertions abound of the desire to "take out" our
client.
6.
Notwithstanding the above, our client has now evidenced the various
exchanges between your client and A, where she refers to
our client
as
"your
asshole
father" and other derogatory names. It further becomes apparent
that your client continually mocks our client and his
immediate
family members, insinuating multiple negative connotations. It is
apparent that your client's conduct and assertions
amount to an
extreme case of Parental Alienation, and the systematic degradation
of our client, in the eyes of the minor child.
Your client has done
little to uphold the image of our client in A's eyes and has actually
done the very opposite thereof.
7. It is
denied that our client has attempted to intimidate, blackmail and/or
extort your client at any stage and
the
forwarding of this extremely concerning
information to your client, was to discuss the alarming information
that has come to his
attention. Our client is concerned as to your
client's behavior in that she is the Primary Residency parent, and it
is our client's
belief that it is certainly not in the minor child's
best interests to
be
exposed to
the
drug
and alcohol abuse, and
the
numerous and various sexual frolics which your client frequently
engages. For the avoidance of doubt, our client's email of
yesterday,
addressed to your client was intended to address your clients
parenting abilities, and we are instructed to deny it
was in any
manner intended to strong arm her into accepting our client's various
proposals with regards to maintenance"
[13]
In the same letter, the Respondent indicated that he would not be
make the cell phone (that had been used by the Applicant)
or any of
the information contained on it available to the Applicant. The
letter from the attorney contained the following:
"15.
.
....
Our
client will
not
disseminate, share or publish the
information to any unnecessary
third party. However, to the extent that your client proceeds with
any action against our client,
whether it includes inter alia
criminal charges and/or crimen
injuria, our client
reserves his
rights in
respect
of the relevant content insofar as it is relevant to his defence
and/or opposition and/or proceeding with an application
for changing
A's primary residence and the exercise of the parties respective
parental rights and responsibilities, and the current
or forthcoming
litigation process."
[14]
Further correspondence was exchanged
between the attorneys as the Applicant attempted to obtain from the
Respondent, an unconditional
undertaking that he would not distribute
the material that he had accessed.
[15]
The Applicant's attempts in this regard
met without any success and the approach of the Respondent following
on from the undertaking
that had been given,
was
that
the
information was
"
most
disturbing"
and
that
the
Respondent was concerned for the
wellbeing of the party's minor child in consequence of this.
[16]
The Applicant during this period laid
criminal charges against the Respondent for contravening Sections 86
and 87 of the
Electronic Communications and Transactions Act 25 of
2002
. By the time this application was heard on 1 September 2020, the
National Prosecuting Authority had considered these charges and
had
issued
a
nolle
prosequi.
In
the
circumstances,
nothing further need be said on this
aspect. The Applicant also proceeded to issue a Writ of Execution for
arrear maintenance in
the sum of R1 243 390.43.
[17]
Notwithstanding that the Applicant had
voiced her objections to
the
Respondent's accessing, use
or
distribution of
her
and
the
minor
child's
private
information, the Respondent then distributed the information to not
only the Headmaster of the school which the minor child
attends but
also to the ex-wife of one of parties with whom the Applicant had a
relationship.
It
was argued by counsel for the Respondent that the information had
been furnished to this third party, ostensibly in the interests
of
that third party's children also.
[18]
On
the basis that he was acting in the best interests of the minor, and
notwithstanding the various applications and counter applications
[1]
that the parties were in the process of litigating against each
other, on 21 July 2020, the
Respondent
then
sent
an
email
to
both
the
Headmaster
at
the
school
which the
minor
child attends and a
medical
practitioner that the
minor
child consults. The annexures to these emails were described by the
Applicant in reply as follows:
"18.2.1
two pdf documents (476 pages)
containing A's WhatsApp chat history with me from 3 November 2015 to
28 August 2019;
18.2.2
a
pdf document (199 pages) containing my WhatsApp chat history with L
N;
18.2.3
a
pdf document (17 pages) containing my WhatsApp chat history with A N;
and
18.2.4
a
pdf document (73 pages) containing A's WhatsApp chat history with the
Respondent."
[19]
The text of the covering email is
indicative of the Respondent's
intentions. Besides gratuitous remarks
regarding the Applicant's private life, he sent all of the above
information - 765 pages
for the Headmaster of the minor child's
school and the medical practitioner for the minor child to
"trawl"
through so as to
''provide
me
with an independent opinion as A's
wellbeing is
my
primary concern".
[20]
This
was the sequence of events before the granting of the interim order
on 28 July 2020. When the application was heard on that
day
,
the
Court did not have the benefit of the Respondent's version. The
Court, furthermore, in consequence of the Respondent's refusal
to
make what he had accessed available to
the
Applicant,
was
not
able
to
consider
or
have
regard
to
the
totality
of
the
information and its
import.
It
suffices
to state that on
what
was presented
to
the Court a case was made out
[2]
for
the granting of
interim
relief. By the time the application on 1 September 2020 was heard,
the Respondent's version and a substantial portion of
the information
was all before the Court.
[21]
The Respondent opposed the confirmation
of the Interim Order and the granting of a Final Interdict. The
Respondent argued that the
bringing of the
ex
parte
Application on the Urgent Roll
was in the present circumstances improper, and that the Applicant had
in
so
doing, failed to make full and proper disclosure of full and relevant
facts which she ought to have and that she had sought and
obtained
the Interim Order by
stealth.
[22]
The Respondent also argued that the
Application by its nature was not urgent, that the information
concerned now constitutes
"vital
evidence"
in
the Children's Court proceedings and that in
any event, once the
Respondent had distributed the
information the proverbial horse had bolted and the Applicant's
recourse is to be found in a claim
for damages.
[22]
I propose dealing with each of grounds
raised by the Respondent in
turn.
[23]
Firstly,
it
is
trite
that
in
bringing an
application
ex
parte,
the
Applicant is
required to demonstrate the utmost good
faith. In this regard, our Courts have held:
"
Good
faith is a sine qua non in ex parte applications. It extends also to
legal
representatives
.
If
any
material facts
are
not
disclosed, whether they be
willfully suppressed or negligently omitted, the Court may on that
ground alone dismiss an ex parte application.
The Court will also not
hold itself bound by any order obtained under the consequent
misapprehension
of
the
true position
.
Among the factors which the Court
will take
into
account in
the exercise of
its
discretion to
grant or deny
relief to a litigant who has been
remiss in his duty to disclose
,
are: the extent to which the rule
has been breached
;
the
reasons for the non disclosure
;
the extent to
which the first
Court might have been influenced
by proper disclosure; the consequences, from the point of doing
justice between the parties
,
of
denying relief to the Applicant on the
ex parte order; and the interest of innocent third parties
such as
minor children, for whom protection was
sought
in
the ex parte application
.
The test is objective.
Even
though partially successful an Applicant may be ordered to
pay
the costs of the application if he has negligently failed to disclose
material
facts
.
In
Schlesinger v Schlesinger an order obtained ex parte was set aside
with costs on the scale as between attorney and client against
the
original Applicant for displaying a
reckless
disregard of a litigant
'
s
duty
to a Court in making a full and frank disclosure of all known facts
that might influence the Court in reaching a just conclusion.
If the
failure to
disclose
is the fault of the attorney acting for a party, he may be ordered to
pay the costs de bonis propriis
.
”
[3]
[24]
Whether or not the Applicant failed to
discharge the obligation upon her to make a full disclosure of all
material facts is inextricably
intertwined with the issue of urgency.
It is self-evident that the disclosure that is required must at all
times be material, more
so depending on the degree of urgency that is
attached to the bringing of the Application.
[25]
The Respondent argued that the Applicant
had been aware of his possession of
the
information since at
least the
beginning of
April
2020.
It
was
also argued that the undertaking had
been given at an early stage, in the terms that it was given, and
that although the Applicant had not
accepted the
undertaking
in the terms preferred, the exchange of correspondence over the
period April, May and June 2020 was indicative of the
matter not
being urgent.
Put
simply if the matter was urgent, then it was urgent in April 2020 but
certainly not by the end
of June 2020 at
the earliest or the end of July 2020 when the application was heard
at the latest.
[26]
In addition to challenging the urgency,
the Respondent also argued that the Applicant had omitted material
information from her
Founding Affidavit. While it is so that the
Applicant did not attach all the correspondence that had been
exchanged between the
parties over the three month period, she did
attach the letter of 17 April 2020 from the Respondent's attorneys in
which all the
relevant issues are set out and in particular the
Respondent's qualified undertaking as well as his
intention to use the information in
what he regarded to be the best
interests of the minor child.
[27]
On a conspectus of all the information
that is now before the Court, the omission of the letters that the
Respondent points to as
indicative of a failure on the part of the
Applicant to make a full material disclosure are not in my view
material. The Applicant
made disclosure of what was in her possession
and what was relevant to the relief that she sought. What is clear is
that the correspondence
that was exchanged between 2 April 2020 and
at least the end of June 2020 - on the part of the Applicant was
directed primarily
at obtaining an undertaking that the information
would not be distributed and on the part of the Respondent was
directed towards
trying to settle the outstanding maintenance and
other
issues.
[28]
The Respondent also argued that the
failure of the Applicant to disclose the proceedings instituted by
him in the Children's Court
in her Founding papers was deliberate.
The Founding Affidavit was deposed to on 25 June 2020, before the
Children's Court proceedings
had been instituted by the Respondent.
However, the Respondent's letter of 17 April 2020 which was attached
to those Founding papers
made plain the Respondent's intention to use
the information, ostensibly in the best interest of the minor child.
The Children's
Court proceedings are
separate to
the
present
proceedings and
are
simply another arrow fired from the bow of the Respondent in his
ongoing battle between himself and the Applicant. I am of the
view
that the failure to specifically refer to the Children's Court
application by the Applicant is not material. The application
which
the Respondent placed before that Court is nothing more than a
repetition of what was set out in the correspondence directed
to the
Applicant.
[29]
The Applicant argued that the Respondent
accessed the information in both the email account as well as on the
WhatsApp platform
unlawfully. The Respondent was at pains from the
beginning of April 2020 to justify his accessing of the information
and his retention
of the information. However he came into possession
of the information is not relevant for the purpose of determining the
present
Application - whether or not that information is admissible,
relevant or even sufficient to enable him to obtain the relief that
he seeks in
the
Children's Court will not be decided by this Court. This is to be
decided by the presiding officer in the Children
'
s
Court when that matter is heard which I was informed from the Bar
will be on 17 September 2020.
[30]
This is however not the end of the
enquiry. While the information may have been disclosed to the
Children
'
s
Court and that Court will rule on the admissibility of what was
disclosed, there can be no doubt that there is no lawful basis
for
the disclosure of the information in respect of either the Applicant
or the minor, to the wife of one of the third parties,
the school
Headmaster or medical
practitioner.
[31]
The furnishing of the information to all
the parties save the Children's Court was done clearly with the
purpose of humiliating
and bringing into disrepute the Applicant as
well as the minor. The Respondent did so under the guise of the "best
interests
of the child".
There
is no explanation as to why it was in
the best interests of the child for the
almost 976 pages of information to be sent to the Headmaster of the
school or the medical
practitioner.
[32]
I do not intend in this judgment to
quote the specific exchanges upon which the Respondent relied to come
to the conclusions that
he did. These were private communications
which took place over a period of years between consenting adults
.
The Applicant in her Founding papers
specifically asserted:
"It is for this reason that I
tell the Court that any of my recreational activities, recorded on my
iCloud account that may
come to light in an answering affidavit, have
not taken place in the residence where A and I reside and never have.
I am discrete
and keep these activities to myself."
"
Further
to this I have never and will never expose my children to these
activities
."
[33]
The Respondent denied this and indicated
that he would
"appraise
the
Court of the transcripts detailing all of the exchanges between L N
and the Applicant and the Applicant and A
N"
.
[34]
It bears mentioning that the exchanges
between the Applicant and adult third parties, were on her personal
email and WhatsApp platforms.
From the information made available to
the Court and in particular the minor child
'
s
WhatsApp conversation history, I was
unable to
find
nor
was
counsel
for either party able to refer me to anything in the minor child's
chat history from which it could be inferred or was apparent
that the
minor child bore any knowledge whatsoever of
the Applicant's private communications
with adult third persons in respect of
the material from which the Respondent drew his conclusions.
[35]
What is
apparent from the information is that
the Applicant and the minor have a close relationship and communicate
freely and honestly
with each other on matters -
in
particular those that affect the minor.
The Respondent
'
s
ire at the fact that the Applicant and
minor child in their private conversations refer to him in
disparaging terms is misplaced.
In each instance where the Respondent
was referred to in such terms, there is a cause - prevalently because
the Respondent attempted
to impose his will upon the minor and when
she did not
acquiesce,
he
would
then, for example
threaten
to terminate payment for one of the minor's extra mural activities.
It is not unreasonable that the minor would be aggrieved
at this or
that the Applicant would commiserate and be supportive of her given
that the Applicant has her own disputes with the
Respondent.
[36]
Although there are references to
medication in
single
instances over the four year period that the information spans,
most of these relate to prescription medication. In
the few instances
where the reference in the information is to narcotics - not
considered prescription medication, these references
were made, on
the whole, not by the Applicant but by the third parties.
[37]
There is
one direct reference in
2018 and
some peripheral references
through the period by the Applicant. By
the very nature of the email and WhatsApp communications
,
these are not always expositive of the
entire discussion between the Applicant and the third parties
concerned nor is the
context
always easily discernable. The emails
and messages upon which the Respondent seeks to
rely in
order to justify his accessing and
dissemination of the information do not support the conclusions that
he has drawn
.
[38]
The Respondent had the Applicant
'
s email in
his possession from September 2019 and the WhatsApp messages from 2
April 2020 and yet only instituted the Children's
Court application
on 3 July 2020 when it became clear that the Applicant was not going
to settle her disputes with him.
[39]
The Respondent relies on Section
28(1)(d) and Section 28(2) of the Constitution of the Republic which
respectively provide that
"Every
child has the right to be protected from maltreatment
,
neglect
,
abuse or degradation
"
and
"
A child
'
s
best interests are of paramount importance in every matter concerning
the child
"
.
If the Respondent is indeed acting
on this basis then there is no explanation as to why he delayed
bringing the Children's Court
application from either September 2019
or April 2020
respectively
.
[40]
On the probabilities
,
I find that the Respondent knew that his
accessing of the Applicant and minor
'
s
private communications were an infringement of their rights and once
it was apparent that there would be no settlement and that
the
proverbial battle would be joined
,
he
then moved to institute the Children
'
s
Court application in order to justify
ex
post facto
his conduct in accessing
the information.
[41]
The dissemination of the information to
the Headmaster and the medical practitioner on 21 July 2020 was done
for no other reason
than to try and engender a cognitive bias in
the minds of those persons against the
Applicant and possibly also the
minor
child. The
Respondent
was well aware that he
had
instituted the Children's Court application and that this was the
correct forum for the consideration of the matter and a finding
as to
the veracity of the conclusions drawn by him. It is self-evident that
besides the invasion of the privacy of the Applicant
and the minor
child so too was the adult third party
'
s
privacy invaded.
[42]
Even
if
it
were
to
be
argued that the
Application by
the
Applicant was
not
urgent
at the time that the Founding Affidavit was deposed to because of the
undertaking given by the Respondent, on 21 July 2020
when the
Respondent distributed the
information,
to my
mind
the
urgency
was
then
firmly
established and
the
fears
of
the
Applicant as
set
out
in
the
Founding Affidavit were
realized. It
is
the
conduct of
the
Respondent in
refusing to disclose to the Applicant
what information
he
had
appropriated and
then
distributing
the
information that
leads me to the conclusion that the
Respondent's argument that the Application is not urgent is without
merit and that in the circumstances
of the case, the Applicant made
sufficient proper disclosure of all relevant facts to the Court.
[43]
Turning
now to whether or not the interim interdict should be confirmed and
made final. It was held in Liberty Group LTD and Others
v Mall Space
Management CC
[4]
:
"[22] The law in regard to the
grant of a final interdict is settled. An Applicant for
an interdict must show a
clear right; an injury actually committed or
reasonably apprehended; and the absence of similar protection by any
other remedy.
It was held by this Court in Hotz v University of Cape
Town that, once the Applicant has established the three requisite
elements
for the grant of an interdict, the scope, if any, for
refusing relief is limited and that there is no general discretion to
refuse
relief."
[44]
The Applicant relies, for the interdict
that she seeks, on her
rights
contained in Sections 10 and 14(d) of the Constitution. These
sections frame these rights as follows:
"10. Human Dignity
Everyone has inherent dignity and the
right to have their dignity respected and protected" and
14 Privacy
Everyone has the right to privacy,
which includes the right not to have-
(a) …
(b) …
(c) …
(d) the privacy of their
communications infringed."
[45]
These
rights may only be limited in terms of Section 36 of the
Constitution
[5]
.
To
my mind, the best interest of a minor child and having regard to the
minor child's rights as set out in Section 28(1)(d) or 28
(2)
of
the Constitution, would as a matter of common sense be valid grounds
to derogate from the Applicant's right to
dignity
and privacy.
Having
regard to the
consideration
of the facts and circumstances giving rise to the present
Application, as well as a consideration of what the Respondent
considered to be incriminatory material, I
find
that
for
purposes
of
this
Application,
the
Respondent
has
failed
to demonstrate any rational basis for the conclusions that he has
drawn
and
o
n
which this Court as the upper guardian of the minor would, in her
best interests, sanction a derogation of the Applicant's rights.
[46]
The
Applicant has a
clear
right but has
she
suffered an
injury
in
consequence
of the Respondent's distribution of the information? It
seems
to me that once a constitutional
right
is breached and the holder of that right seeks to enforce it, that
ipso
facto
for
so long as the breach persists or may persist then this requirement
is met. To hold otherwise would render the right to privacy
nugatory
as
the
Applicant would have
to
"give
up
"
that
right
in
order
to
enforce
it!
[6]
[47]
It was argued on behalf of the
Respondent that even if the Applicant establishes the first two
requirements for the granting of
a final interdict, that, in
consequence of the Respondent's dissemination of the information to
the Children's Court, the Headmaster
and the medical practitioner -
the proverbial horse has already bolted and that the Applicant's
remedy lies in a claim for damages
and for this reason the
Application should fail.
[48]
In considering whether or not an award
for damages is an appropriate alternative remedy, regard must be had
to what the Applicant
seeks
to
protect in interdicting the Respondent.
The Applicant seeks to protect personal rights that are peculiar and
specific to each individual.
These
rights are so p
r
ized
by our society that they are given the status of fundamental rights
in the Bill of Rights in the Constitution.
While the rights are expressed in
general terms in the Constitution
,
each
individual will have a personal understanding of their own rights in
this regard.
[49]
Dignity
is defined as
“
true
worth
”
[7]
and
privacy as being
"
being
alone
and
undisturbed”
[8]
.
Both
of these relate to the state of being of an individual
and
are not as a matter of course
,
readily
capable of being reduced to mere financial value
.
[50]
In
Minister of Safety and Security v Tyulu
[9]
the
purpose of an award for damages was expressed as
follows:
"
the
primary purpose is not to enrich the aggrieved pa
r
ty
but to offer him or her some much needed solatium for his or her
injured feelings
"
[51]
In
Minister of Safety and Security v Seymour
[10]
it was held in regard to the quantification of awards for damages
that:
"the assessment of awards of
general damages with reference to awards made in previous cases is
fraught with difficulty. The
facts of the case need to be looked at
as a whole and few cases are directly comparable."
[52]
An award of damages would be an
appropriate remedy were the infringement of the rights of the
Applicant to have occurred in the
past. In circumstances where an
infringement has occurred on one or more occasions in the past but
has ceased and will not occur
in the future, it seems to be that an
award for damages would be an appropriate alternative remedy. The
present case is however
distinguishable in that the Respondent has
made plain through the undertaking that he has given that he wishes
to retain for himself,
to be used and distributed as
and
when
he
sees
fit,
the
personal
and
private
information of
both
the
Applicant and the minor child. The
Respondent acts in his own interests and appears to be
"
indifferent to the harm" that
the pursuit of his interests visits upon either the Applicant or the
minor child. In such circumstances,
the bringing of an action for
damages would serve no purpose other than to mire the parties in
further litigation
.
I
am persuaded that this would be the case in light of the present
situation that persists between the
parties.
[53]
An action for damages is in the present
circumstances inappropriate and would not stop the Respondent's use
or dissemination of
the information. The only appropriate remedy
available to the Applicant is the order that is sought.
[54]
In the ordinary course of litigation,
costs follow the result. In the present application both
the
Applicant and
Respondent argued for
an
award
in
their
favour of a punitive order for costs
against the
other.
[55]
The present litigation is but one of the
skirmishes in an ongoing battle between the Applicant and the
Respondent. The Respondent
was forewarned that the Applicant would
approach the Court if he did not remove the qualification to his
undertaking. Notwithstanding
this, the Respondent then proceeded to
institute proceedings in the Children's Court as well as to
disseminate the information
to third parties.
[56]
The present application was entirely
avoidable had the Respondent properly considered his position and
conducted himself accordingly.
On consideration of the matter as a
whole
,
I am
of the view that a punitive order for costs is warranted and it is
for this reason, that I intend to make the Order that I
do.
[57]
In the circumstances
,
I make the following
Order:
[57.1] Paragraph 3 of the Order
granted on 28 July 2020 reading:
"3
.
The
respondent is interdicted and restrained from copying
,
using
,
sharing,
disseminating
,
distributing
and/or publishing the applicants private and confidential
information
being, Contacts, WhatsApp messages, Instant Messenger, MMS,
I-Message, SMS, photographs, videos,
and/or
audio
files
emanating
and/or
downloaded from cellular number […]
and/or
the
[…]
account"
is confirmed.
[57.2] The Respondent is ordered to
pay the costs of this Application, on the scale as between attorney
and client.
______________________
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
HEARD
ON: 01 SEPTEMBER 2020
JUDGMENT
DELIVERED ON: 11 SEPTEMBER 2020
COUNSEL
FOR THE APPLICANT: ADV. N STRATHERN
INSTRUCTED
BY: ULRICH ROUX & ASSOCIATES
REFERENCE:
MS. G ERASMUS
COUNSEL
FOR THE FIRST RESPONDENT: ADV. J BRETT SC
ADV.
R BOSMAN
INSTRUCTED
BY: DI SIENA ATTORNEYS
REFERENCE:
MS
.
A
SHARDLOW
[1]
In the period from the time of the signature of the founding
affidavit on 25 June 2020 and the hearing of the application, the
Respondent proceeded to launch an application in the Children's
Court to try and obtain an order that he be granted sole custody
of
his biological minor child.
[2]
The requirements for the granting of an Interim Interdict were set
out in in LF Boshoff Investments (Pty) Ltd v Cape Town Municipality
as follows:
"Briefly these requisites are
that the Applicant for such temporary relief must show -
(a) That the right which is the
subject matter of the main action and which he seeks to protect by
means of interim relief is
clear or, if not clear, is prima facie
established, though open to some doubt;
(b) that, if the right is only prime
facie established, there is a well-grounded apprehension of
irreparable harm to the Applicant
if the interim relief is not
granted and he ultimately succeeds in establishing his right;
(c) that the balance of convenience
favours the granting of interim relief·, and
(d) that the Applicant has no other
satisfactory remedy."
[3]
DE van Loggerenberg Erasmus, Superior Court Practice, Juta, Vol. 2,
RS 13, 2019 D1-61, footnotes omitted
[4]
2020 (1) SA 30
(SCA) at paragraph [22), footnotes omitted.
[5]
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
1999 (1) SA 6
(CC) at paragraph [28]
- "the right to dignity is a cornerstone of our Constitution.
Its importance is further emphasised
by the role accorded to it in s
36 of the Constitution which provides that:
'The rights in the Bill of Rights may
be limited only in terms of law of general application to the extent
that the limitation
is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom…”
Dignity
is a difficult concept to capture in precise terms. At its
least, it is clear that the constitutional protection of dignity
requires
us to acknowledge the value and worth of all individuals as
members of our society."
[6]
supra at paragraph [32] - " Privacy recognises that we all have
a right to a sphere of private intimacy and autonomy which
allows us
to establish and nurture human relationships without interference
from the outside community. The way in which we give
expression to
our sexuality is at the core of this area of private intimacy. If,
in expressing our sexuality, we act consensually
and without harming
one another, invasion of that precinct will be a breach of our
privacy."
[7]
The Concise Oxford Dictionary of Current English, 7th Edition,
Clarendon Press at page 268
[8]
supra at page 818
[9]
2009 (5) SA 85
(SCA) at paragraph [26].
[10]
2006 (6) SA 320
(SCA) at paragraph [17].