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[2010] ZAWCHC 578
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Isaacs v Kearns and Another (10280/10) [2010] ZAWCHC 578 (26 November 2010)
In
the Western Cape High Court of South Africa
(Cape
of Good Hope Provincial Division)
In
the matter between:
Case
No: 10280/10
Venecia
Lynette Isaacs
…............................................................................................................
Plaintiff
Versus
Collin
Kearns
….............................................................................................................
First
Respondent
Jolene
Kearns
…......................................................................................................
Second
Respondent
Judgment
delivered: 26
th
November
2010
LOUW
J
[1]
The plaintiff is 32 years old. She is the personal assistant of Mr.
G. Derris an attorney who practises in Athlone and who is
also her
attorney of record in this matter. She sues the defendants, a father
and his 27 year old daughter, for delictual damages
arising from an
incident which occurred on 12 December 2009.
[2]
The defendants have entered appearance to defend but, having been
barred
from pleading, they are in default of filing a plea.
[3]
The plaintiff testified and described the incident. She was at her
employer's home in Cressy Road, Athlone. He is blind and
she assists
him during the course of the day with his activities. The defendants
are the next door neighbours of Mr. Derris and
their dogs had come
loose and had upset Mr. Derris's Rottweiler dogs. The plaintiff
called upon the second defendant to fetch their
dogs. The second
defendant came out her house and started to verbally abuse the
plaintiff. She called her a 'naai' and a 'poes'.
The first defendant,
who heard the commotion, came out of his house. He proceeded to
expose his penis to the plaintiff, telling
her to 'look at it' and he
asked her 'do you want it'.
[4]
The incident took place in the street and in the presence of
neighbours and members of the public.
[5]
The plaintiff testified that the first defendant's conduct left her
shocked, embarrassed, sad and emotionally denigrated. She
experienced
his conduct as disrespectful to her as a woman and a person. She felt
disgusted, embarrassed and humiliated because
of the words addressed
at her by the second defendant. There has also been a reaction from
the community. The plaintiff is well
known in the broader community
in Athlone and feels that her good name and reputation as an honest
and respectable person has been
damaged. People with whom she had
previously associated now shun her and appear to avoid her.
[6]
The plaintiffs claim falls under the action iniurarium for damages in
the form of a solatium for the infringement of her dignity,
her
senses and good name.
[7]
The plaintiff has been indecently assaulted by the first defendant.
Although her physical integrity was not been infringed by
a physical
blow to her body, she has suffered an infringement of her senses and
has experienced and continues to experience feelings
of discomfort,
disgust and repugnance. She continues to experience emotional shock
and she cried in the witness box when recounting
the events. These
are not trivial consequences for the plaintiff. The first defendant's
conduct was unlawful. A reasonable person
in her position would have
experienced the same reaction. The first defendant acted with the
intention to injure the plaintiffs
mind and spirit and her feelings
of dignity and of selfworth. She also experiences a lowering of
esteem in the eyes of others.
[8]
The consequences of the second defendant's conduct has, likewise not
been trivial. The plaintiffs subjective feelings of self
respect and
dignity have been infringed. The second defendant's conduct was
insulting, belittled the plaintiff and was contemptuous
of her. It
was unlawful. Not only was the plaintiffs subjective feelings of
dignity infringed, but a reasonable person in her position
would also
have felt insulted, denigrated and demeaned. The second defendant
intended to insult the plaintiff in public and to
injure the
plaintiff in her feelings of dignity and self respect.
[9]
The plaintiff is entitled to damages against both the defendants.
[10]
Ms Anthony, who appeared on behalf of the plaintiff submitted, with
reference
Tuch
v Mverson
2010
(2) SA 462
(SCA), where it was stated in a court application that a
person (who was already deceased by the time the action was heard)
had
stolen between R5 and 6m from his brother, that substantial
amounts in excess of the R30 000.00 awarded for defamation in that
case, should be awarded to the plaintiff. A court awarding damages in
a case like this has a wide discretion to fix an amount which
is fair
and reasonable in the circumstances of the case and the prevailing
attitudes of the community. Awards made in other cases
can be no more
than a guideline. In
Ryan
van Petrus
2010
(1) SA 169
(SCA) similar words were used and the court awarded
damages in the amount of R15 000.00. In my view, an award of R15
000.00 against
each of the defendants will be an appropriate amount.
[11]
The awards do not exceed the jurisdiction of the magistrate's court.
However, in view of the nature of the claim and the infringement
of
the plaintiffs personality rights, the plaintiff was in my view
justified in bringing the action in this court and she should
be
awarded costs on the High Court scale.
[12]
It is ordered that:
.
1.
The first defendant pay the plaintiff the amount of R15 000.00;
2.
The second defendant pay the plaintiff the amount of R15 000.00;
3.
The defendants pay the costs of the action, jointly and severally,
the one paying the other to be absolved.
W.J.
LOUW, J
Judge
of the High Court