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[2010] ZAWCHC 537
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Young v McDonald (A213/2010) [2010] ZAWCHC 537 (9 November 2010)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
Case
No: A213/2010
In
the matter between:
LESLEY JUDITH YOUNG
…...................................................................
Appellant
And
IAN
LESLIE McDONALD
…..........................................................................
Respondent
9
NOVEMBER 2010
BINNS-WARD
J:
[1]
The respondent instituted action against the appellant in the Knysna
Magistrates' Court under two case numbers. The actions
were tried
together and a single judgment was delivered by the trial court. The
appellant comes before this court on appeal against
that judgment.
[2]
In the first action, under Knysna case no. 1058/2007, the plaintiff
claimed R100 000 in damages in respect of the allegedly
malicious
institution of proceedings against him for an order in terms of the
Domestic Violence Act 116 of 1998
. The damages were alleged to be in
respect of
'contumelia
and
discomfort suffered by [him] in the process'. He also claimed R100
000 in damages for defamation arising out of the injury
to his
reputation allegedly occasioned by the defamatory content of the
affidavit made by the respondent in terms of
regulation 4
of the
Regulations under the
Domestic Violence Act, which
are set out in
Government Notice 1311 of 1998 published in Government Gazette No.
20601 on 5 November 1999.
[3]
In the second action, under Knysna case no. 1059/07, the respondent
claimed R80 000 in respect of
contumelia
arising
from an assault perpetrated on him by two men in a parking area of a
shopping mall in George, during which he was dispossessed
of a motor
vehicle. It was alleged that the assailants had been 'acting within
the course and scope of a mandate and instruction
they had received
from [the appellant]' to whom the vehicle concerned belonged. It was
common ground that the use of the vehicle
in question had been given
to the respondent in terms of an agreement with the appellant. It
was a matter of dispute whether
the agreement had been properly
terminated by the appellant and whether the respondent was in lawful
possession of the vehicle
at the time he was dispossessed of it in
the circumstances aforementioned. The respondent also claimed
compensation for the loss
of the use of the vehicle, but did not
pursue that claim at the trial.
[4]
Only a very brief summary of the relevant facts is required. They
were not materially in dispute. Indeed, at the hearing of
the appeal
only the issue of quantum of damages was argued by counsel for the
appellant, notwithstanding the absence of formal
abandonment of the
contentions advanced on the issue of liability in the heads of
argument.
[5]
The appellant and the respondent, both mature persons in their 60's
at the time of the trial, had been in a cohabitation relationship
for approximately seven years. During this time they had lived
together at the appellant's residence in Knysna. It is clear that
the respondent was largely maintained at the appellant's expense
during this period. I do not think that it would be inaccurate
to
describe him as having been a kept companion. The evidence suggests
that the couple had an at times stormy relationship; and
the
indications are that it deteriorated in quality during the final
years, culminating in a decision by the appellant, in about
May
2006, to inform the respondent that he was required to vacate her
property.
[6]
By prior arrangement with the appellant the respondent spent some
time, spread over four days, at the appellant's house during
June
2006 packing his personal possessions, which had been removed by the
appellant from the main body of the house to a basement
while the
respondent had been away attending a wedding at St. Francis Bay and
thereafter visiting a parent in Durban. The respondent
had very
little contact with the appellant during the period he was packing
up his possessions; and indeed that remained the
position during the
ensuing months to November 2006. What little contact the parties had
during that time was through intermediaries
who were engaged to
assist in trying to resolve the proprietary consequences of the
break-up. In this regard it should be mentioned
that the respondent
apparently believed that he was entitled for some form of financial
settlement from the appellant; and indeed
litigation in that
connection subsequently ensued in the High Court.
[7]
The appellant was concerned to regain possession of the motor
vehicle of which the respondent had been given the use in terms
of
an agreement, as aforementioned. She encountered difficulties in
giving the respondent notice of termination of the agreement
in the
specific manner prescribed by the agreement. The respondent, who one
suspects lacked the resources to provide his own
means of transport,
appears to have been unwilling to accept alternative, but effective
notice of the termination of the use
agreement. Frustrated by her
inability to regain the vehicle, the appellant entered into an
arrangement with one Errol Kahn -
a physically imposing and rather
intimidating looking individual by all accounts - who worked as a
sometime bouncer or bodyguard,
to get the vehicle back for her. The
precise nature of the arrangement made by the appellant with Kahn
does not appear from the
evidence; although Kahn would apparently be
allowed the use of the vehicle for a period if he was successful in
obtaining it
from the respondent. It is also apparent that the
appellant entered into the arrangement because she felt that it
would afford
a quicker efficaciousness in resolving the impasse with
respondent than the due processes of the law. The appellant indeed
gave
evidence that her then attorney had advised her that the only
manner in which she would succeed in regaining possession of the
vehicle from the respondent was 'to grab it back' from him. It was
not in dispute that
Kahn
and an assistant were the two men who forcefully relieved the
respondent of the vehicle in the shopping mall parking lot
on 24
November 2006.
[8]
It was also not in dispute that the respondent had a previous,
albeit superficial, acquaintance with Kahn and also that he
knew
that Kahn was a longstanding acquaintance of the appellant. It was
not surprising in the circumstances that the respondent
should
suspect that the appellant might have been behind the assault on him
by Kahn in the course of forcibly dispossessing him
of the vehicle
[9]
The respondent laid criminal charges arising out of the incident in
which he had been disposed of the motor vehicle. The police
recovered the vehicle at the address of a third party, apparently an
associate of Kahn's aforementioned assistant. The police
were not
willing to release the vehicle to the appellant, apparently because
it was an exhibit in a criminal investigation.
[10]
Very shortly thereafter, the appellant applied to the magistrate at
Knysna for an order against the respondent in terms of
s 4
of the
Domestic Violence Act. The
application was brought without notice to
the respondent. Applications for relief under the Act may be brought
without notice
if the complainant is able to satisfy the court
prima
facie
that
undue hardship may be suffered by the complainant as a result of the
alleged domestic violence if a protection order is not
issued
immediately.
[11]
I do not consider it necessary to describe in detail the allegations
made by the appellant in support of her application.
Suffice it to
say that some - indeed the most serious - of them were confessedly
false. The appellant testified that she was
not the author of these
falsehoods and that they had been inserted by her then attorney. She
also testified that the attorney
had failed to correct the statement
when she, the appellant, had pointed out the inaccuracies. According
to the appellant, the
attorney had stated that it was 'not
important' to correct the falsehoods upon which the relief sought
had been sought. If her
evidence in this respect were factually
well-founded, how the appellant could possibly have accepted such
advice was never explained.
The appellant also testified that she
had not made the false statements in the context of a sworn
declaration; this despite the
requirement of the regulations that an
application be supported by oath or affirmation as indicated in the
form prescribed for
use in such applications, and despite the fact
that the document submitted in support of the application purports,
on its face,
to be an affidavit deposed to by the appellant. The
magistrate rejected the appellant's evidence in this regard. He
found the
appellant to be an unreliable witness. A court of appeal
does not easily disturb credibility findings by a trial court, but
on
any approach I do not think that the magistrate can faulted for
arriving at this conclusion.
[12]
The appellant's evidence as to the alleged role of her erstwhile
attorney is inherently improbable. No attempt was made to
confirm
the evidence by the evidence of the attorney concerned. While this
in isolation might have been understandable because
of the
unlikelihood that the legal practitioner would own up to such
deviance; it is nevertheless significant that there was
no
indication placed on record that the appellant, or her current legal
advisors had taken any steps to draw to the attention
of the Law
Society what would, if the appellant were to be believed, constitute
grossly dishonest and unethical conduct by her
erstwhile attorney.
It is also significant that the appellant did not withdraw the
proceedings after the respondent had delivered
a detailed opposing
affidavit and even went to the lengths of engaging in the drafting
of a replying affidavit, albeit one not
deposed to before
proceedings were eventually withdrawn in February 2007, with no
tender as to costs. As already mentioned, even
if all the
allegations about the conduct of her then attorney, Ms Leslie Swart,
were true, they afforded no justification for
the appellant to allow
the proceedings to go ahead. It is clear to me that she did so as a
means to obtain the release to her
from police impoundment of the
vehicle taken by Kahn from the respondent
[13]
In terms of
s 7(2)
of the Act, the court may, when issuing an order
in terms of the Act, also direct that a peace officer must accompany
the complainant
to a specified place to assist with arrangements
regarding the collection of personal property. In this regard the
appellant
sought, and obtained, an order in her application for the
collection of the motor vehicle in issue from the police station
where
it was being held. This manifested a further abuse of the
process. It is apparent from the appellant's evidence at the trial
that she had no urgent personal need to obtain possession of the
vehicle; indeed, she was committed to lending it to Kahn. This
is
not the occasion to expatiate on the purpose of the provisions of
s
7(2)
of the
Domestic Violence Act, but
they are clearly not intended
to provide an unqualified alternative to the ordinary possessory
remedies to which the appellant
should have had resort to regain
property which she had contractually given the respondent the right
to use. Furthermore, it
is of concern that her legal representative
at the time was, at the very least, not astute to this. There is an
exacting duty
of care on legal representatives representing
complainants in
Domestic Violence Act applications
to ensure that
the provisions of the Act are not abused to obtain relief ulterior
to that for which the Act was intended; see
Ex
parte
Omar
2006
(2) SA 284
(CC)
(2003 (10) BCLR 1087)
at para. [61]; a
fortiori,
when
the application is made without prior notice to the respondent.
[14]
The magistrate held that the proceedings in terms of the
Domestic
Violence Act had
been maliciously instituted and found also that the
averments made in support thereof by the appellant were defamatory.
He granted
the respondent R50 000 in damages for the malicious
institution of proceedings and R30 000 for defamation. In case no.
1059/07,
the magistrate awarded the respondent R80 000 in respect of
the injury to his person and dignity in the assault on him when he
was dispossessed of the vehicle. The magistrate ordered the
appellant to pay the respondent's costs of suit on the scale as
between attorney and client and also made an order that the
appellant should pay the respondents costs in the
Domestic Violence
Act proceedings
. The appeal is against the whole of the magistrate's
judgment and order.
[15]
In regard to the malicious institution of proceedings, the appellant
had pleaded that her actions in instituting the proceedings
were not
unlawful in that she had been justified in bringing the application
and that she had not acted
animo
injuriandi
in
that she
bona
fide
believed
that she had reason to fear the respondent. In regard to the
defamation claim she likewise pleaded an absence of any
animus
to
injure the respondent's reputation.
[16]
In the heads of argument filed on behalf of the appellant, counsel
addressed argument against the award based on the assault
on the
respondent, but aside from the issue of quantification of damages
advanced very little, if anything, of substance by way
of argument
on the malicious institution of proceedings or defamation claims. As
mentioned, at the hearing counsel confined her
oral argument to the
issue of quantum, advisedly so in my view.
[17]
It is accepted that the institution of civil proceedings without
reasonable cause and
animo
injuriandi
(the
label 'maliciously' is not entirely apposite) is actionable under
the
actio
iniuriandi.
See
Neethling, Potgieter and Visser
Neethling's
Law of Personality
(2005)
at 183-4 (with particular reference to
Moaki
v Reckitt and Colman (Africa) Ltd
1968
(3) SA 98(A)
at 105 and
Barclays
National Bank Ltd v Traub; Barclays National Bank Ltd v Kalk
1981
(4) SA 291
(W) at 297-299). In my judgment, the magistrate's finding
that the appellant had no
bona
fide
fear
that the respondent would commit an act of domestic violence against
her was well-founded. The respondent had had virtually
no contact
with the appellant for a period of six months by the time that the
application was made. The notion that the respondent
had been
spotted in the appellant's motor vehicle at some distance from her
house on one occasion hardly gave rise to a reasonable
apprehension
of domestic violence. To have been in the vicinity of the
appellant's house in the circumstances described in the
evidence
adduced by the appellant at the trial certainly did not qualify as
'domestic violence', even within the wide definition
of the term in
the Act. The history of alleged domestic violence by the respondent
towards the appellant during their sometimes
tumultuous years in
cohabitation did not justify an urgent application under the Act,
without notice to the respondent, six months
after the respondent
had vacated the appellant's house. The strongly given impression
arising from the circumstances of the application
and the relief
sought in terms of it was that it was a device to obtain the
effective return of the vehicle. The very nature
of a
Domestic
Violence Act application
brings about the implication of
unacceptable and anti-social behaviour by the respondent against the
complainant. Rather like
defamatory statements, the institution of
such proceedings intrinsically impacts injuriously on a respondent's
dignity in the
broad sense. Any respondent made subject to a
protection order is terms of the Act is also made subject to a
warrant of arrest,
for example. The appellant must have appreciated
as much, and yet she proceeded recklessly as to the consequences,
actuated,
as I have pointed out, by improper motives. In my judgment
the magistrate correctly found that the alleged
injuria
had
been established.
[18]
The averments made concerning the respondent in the application for
relief in terms of the
Domestic Violence Act were
undoubtedly
defamatory; most saliently the allegation that the respondent
appeared to have attempted to poison her by arsenic
poisoning and
that the respondent was stalking the appellant by coming onto her
property and staring at and watching her. The
appellant caused these
defamatory statements to be published by launching the application.
Two presumptions arose upon the publication
of the defamatory
statements (i) that the publication was unlawful and (ii) that the
statements were made
animo
iniuhandi.
See
e.g.
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) at para.
[16]
. The appellant failed to rebut these
presumptions; indeed, in the context of her
mala
fide
use
of the procedures under the
Domestic Violence Act, it
is difficult
to conceive how she could have done so. I am accordingly of the view
that the court a
quo
correctly
held that the appellant was liable in respect of the defamation of
the respondent.
[19]
The magistrate correctly held that the quantification of damages for
injury to personality under the
actio
iniuriarum
had
to be determined ex
aequo
et bono,
with
proper regard to the peculiar facts of the case. In this regard a
court must bear in mind that the compensation awarded is
in the
nature of a
solatium;
and
that the remedy is not intended to be availed of as a path to riches
(cf.
Argus
Printing & Publishing Co Ltd v Inkatha Freedom Party
[1992] ZASCA 63
;
1992
(3) SA 579
(A) at 590E-F and also
Dikoko
v Mokhatla
2006
(6) SA 235
(CC)
(2007 (1) BCLR 1)
at para.s [109]-[110]). While
awards in previous cases afford a useful guide, it needs to be
remembered that the facts of two
cases are rarely identical. The
usefulness of reference to awards in previous broadly comparable
matters is that it gives the
court an idea of an appropriate range
within which to fix its award. The law would be not well served if
there were no predictability
or consistency in the general range of
compensatory awards in similar or comparable cases.
[20]
A court of appeal will not readily interfere with the determination
of an award of general damages by a court of first instance.
Due
respect must be demonstrated for the trial court's power itself to
determine the amount of damages in the exercise of its
judicial
discretion. Accordingly, only if there has been a material
misdirection by the court of first instance will an appeal
court
intervene. The award of damages in an amount strikingly disparate
from that made in similar cases, or strikingly different
from that
which the appeal court considers appropriate is an indication of
relevant misdirection by the trial court. In the current
case, I
consider that the trial magistrate erred in failing to recognise or
acknowledge that the injury to the respondent's personality
occasioned by the injurious institution of proceedings under the
Domestic Violence Act and
the defamation attendant thereon was very
closely interconnected. The two injurious acts were in reality
incidences of each other
and the external effect of each on the
respondent virtually indistinguishable. I therefore consider that a
single sum should
have been awarded as damages in respect of both
heads of claim treated as one for the purposes of compensation.
[21]
I am also of the view that the magistrate failed to have adequate
regard to the fact that the publication of the defamatory
matter was
restricted; and to the fact that there was little or no evidence
that the injurious actions of the appellant had in
fact reduced or
affected the esteem in which the respondent had previously been held
by right thinking members of the community.
Indeed one gains the
impression that the magistrate over-emphasised the punitive aspect
in assessing damages and in this regard
put emphasis on the
consideration that a modest award would have little effect on the
appellant, who, the evidence suggested,
was a woman of relatively
considerable means. I think that he was misdirected in doing so. The
abuse of the procedures under
the Domestic
Violence
Act is a most serious matter, but it falls to be dealt with
punitively by more appropriate measures, such as criminal
charges.
[22]
In determining the applicable range within which the award fell to
be made I have had regard to the cases referred to in
this regard in
argument by counsel. In the result I consider that the award of a
total of R80 000 in damages for the claims founded
on the injurious
institution of proceedings and defamation to be so strikingly
disparate from comparatively modest awards made
in far more grave
examples of
injuria
as
to warrant interference on appeal. In my view an award in the sum of
R25 000 would be fitting in the circumstances.
[23]
Turning now to the claim for damages in respect of the contumacious
treatment of the respondent during the assault on him
by Mr Kahn and
his assistant, apparently a Mr Lutz Springboard
(sic).
Liability
by the appellant can be established only if she is vicariously
liable for the
iniuria.
In
this regard the appellant admitted that Kahn had been acting on her
behalf in dispossessing the respondent of the vehicle,
but
maintained that she had not foreseen that any violence or threat of
violence would be involved. The magistrate did not believe
her. I am
not persuaded that the magistrate was wrong in this respect. The
probabilities support the conclusion that the appellant
intended
that the respondent would be at the very least intimidated into
surrendering the vehicle to Kahn. She could hardly have
thought that
the respondent would voluntarily give up the vehicle in the context
of his indications that he had not been given
the contractually
stipulated notice to do so. On her own version the appellant was
concerned to grab back the vehicle because
she had concluded that
the applicable legal processes were insufficiently effective. She
involved Kahn as her instrument in the
context of her decision to
take the law into her own hands. In my judgment therefore the
magistrate correctly held the appellant
to be vicariously liable for
the acts of Kahn.
[24]
The appellant's arguments that she did not act unlawfully in taking
back the vehicle and that the assault on the respondent
was a
trifling matter about which the law should not concern itself are
entirely without merit. The rule of law, which is a foundational
norm in any civilised society, is fundamentally subverted if the
courts tolerate persons taking the law into their own hands
instead
of following the due processes of the law to realise or defend their
rights. I also do not regard the assault on the
respondent as a
trifling matter; certainly I am not persuaded that the injury to the
respondent's feelings in the degrading manner
of his treatment by
Kahn and his accomplice was so inconsequential as not to be
deserving of a remedy. In this regard it bears
mentioning that on my
reading of his particulars of claim the respondent did not seek
compensation for any physical hurt, or
for physical pain and
suffering, but only for
contumelia.
[25]
Taking into account all the circumstances, including the
consideration that the respondent's behaviour in regard to refusing
to acknowledge that the appellant had given notice of her wish to
have her vehicle returned to her appears to have been somewhat
disingenuous and therefore served as a measure of provocation, I
consider that an award of R5 000 in damages would have been
appropriate. The award of R80 000 granted by the magistrate was
quite obviously excessive; and by so gross a margin as to impel
interference.
[26]
The magistrate granted costs in the two actions before him in favour
of the respondent on the scale as between attorney and
client. This
was avowedly a punitive order to mark the court's displeasure at the
appellant's conduct, not only in respect of
the matters giving rise
to the actions, but also in the manner in which she sought to defend
herself against the claims advanced
by the respondent. Costs are a
matter within the discretion of the trial court and absent a
demonstrable and material misdirection,
an appeal court will not
interfere. I am not persuaded that the existence of any such
misdirection has been demonstrated. The
appeal against the costs
order of the court a
quo
cannot
succeed.
[27]
The magistrate also made an order directing that the appellant was
liable for the respondent's costs in the proceedings instituted
by
the appellant under the
Domestic Violence Act. In
doing so he
purported to be acting on his understanding of a judgment in those
proceedings by Magistrate van der Merwe in case
no. G462/2006,
delivered on 25 May 2007. It may be inferred from this that the
issue of costs in the
Domestic Violence Act proceedings
had been
argued before Mr van der Merwe. In terms of
s 15
of the
Domestic
Violence Act a
court may only make an order as to costs against any
party if it is satisfied that such party has acted frivolously,
vexatiously
or unreasonably. The proceedings before the court in the
Domestic Violence Act matter
are only incidentally before us, with
the result, amongst other considerations, that we do not have before
us the judgment of
Magistrate van der Merwe. In my view we are
therefore not equipped to entertain an appeal against the costs
order in those proceedings.
If the appellant wishes to pursue that
aspect, she must do so by appeal or review in that case. No relief
will therefore be granted
in respect of the attack on the order by
the magistrate in case no. G462/2006.
[28]
Finally, it is regrettably necessary to touch on the heads of
argument filed in this matter and on the preparation of the
record.
The record included extensive material which was not germane to the
appeal. A voluminous trial bundle had been handed
in the court
below. Most of it was not referred to in evidence and much of its
content was in any event quite irrelevant. The
irrelevant matter
should have been excluded from the appeal record; certainly the
appellant's attorneys should have requested
the respondent's consent
to omit it and drawn to the court's attention any unreasonable
refusal by the respondent to accede to
such request. The undesirable
position was compounded by a failure on the part of the appellant's
counsel to comply with the
requirements of Western Cape High Court
Consolidated Practice Note 49(2) by, after consultation with the
respondent's legal representative,
filing a statement setting out
which portions of the record were regarded as irrelevant to the
appeal and to which counsel did
not intend to refer. Our displeasure
at these shortcomings, which inconvenienced the court, for which the
appellant's counsel
tendered an apology, will be marked in the costs
order to be made. Subject to the aforegoing, the appellant has
achieved substantial
success on appeal and is entitled to a costs
order in her favour.
[29]
It is also necessary, in my view, that the matter of how the
proceedings in terms of the
Domestic Violence Act came
to be
instituted in the manner they were be investigated by the Law
Society. It is undesirable that the serious allegations made
about
the conduct of Ms Leslie Swart in this connection be left
undetermined. As mentioned, there are aspects about the application
which raise concerns about the role of Ms Swart, quite apart from
the issues arising from the respondent's evidence. These are
the
relief sought in regard to the return of the vehicle held by the
police and the fact that the supporting affidavit purports
to have
been deposed to before Ms Swart herself as the applicant's attorney.
Without being understood to anticipate any findings
in respect of
these or any other aspects of the matter, it is desirable that the
Law Society be directed to investigate. A direction
to that effect
will be included in the order to be made.
Order
1.
The appeal is upheld to the extent set out below:
(a)
The award of damages by the trial court in Knysna Magistrates' Court
case no. 1058/07 in the sums of R50 000 and R30 000,
respectively,
in respect of the (i) the injurious institution of proceedings in
terms of the Domestic Violence Act and (ii) defamation
is set aside
and an award in the globular amount of R25 000 is made in
substitution therefor.
(b)
The award of damages by the trial court in Knysna Magistrates' Court
case no. 1059/07 in the sum of R80 000 in respect of
contumelia
arising
out of the assault on the respondent on 24 November 2006 is set
aside and an award in the amount of R5 000 is made in
substitution
therefor.
The
appeal against the attorney and client costs order made by the
court a
quo
is
dismissed.
No
order is made in respect of the appellant's complaint about the
costs order made by the magistrate in case no. G462/2006
on the
grounds that the proceedings between the parties in terms of the
Domestic Violence Act are
not before this court in this appeal.
The
appellant is awarded the costs of the appeal, save that the
appellant shall be permitted to recover only 70 percent of the
costs in respect of the preparation and perusal of the record.
The
Registrar is directed to forward a copy of this judgment and a copy
of the record on appeal to the Director of the Cape
Law Society for
an investigation of the conduct of the respondent's erstwhile
attorney, Ms Leslie Swart of Knysna, in regard
to the application
instituted by the respondent in November 2006 for relief against
the appellant in terms the
Domestic Violence Act.
The
Director of the Cape Law Society is requested to advise the
Registrar in writing of the outcome of the investigation directed
in
terms of paragraph 5 of this order.
A.G.
BINNS-WARD
Judge
of the High Court
BAARTMAN
J:
I
concur.
E.D.
BAARTMAN
Judge
of the High Court