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[2010] ZAGPPHC 239
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Viviers v Jentile (57590/2007) [2010] ZAGPPHC 239 (10 December 2010)
REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
Date: 2010-12-10
Case Number:
57590/2007
In the matter between:
CATHARINA MARIA
VIVIERS
.......................................
Applicant/Plaintiff
and
NOMTSHAKAZI
CELEAN JENTILE
.............................
Respondent/Defendant
JUDGMENT
SOUTHWOOD J
[1]
The
plaintiff applies for judgment by default against the defendant for
payment of damages in the sum of R50 000 for
iniuria
and
damages in the sum of R70 000 for assault. The plaintiff’s
summons was served on the defendant personally on 28 June
2010 and
she has not delivered a notice of intention to defend. (It should be
noted that in the plaintiff’s particulars
of claim the
plaintiff claimed payment of the sum of R100 000 for
iniuria
and
R200 000 for assault.)
[2] Before the
hearing, the plaintiff, as she was entitled to do, filed two
affidavits (one by her and one by her doctor, Dr. Antoinette
de Beer)
in support of her claims – see
Havenga
v Parker
1993
(3) SA 724
(T)
at
725E-726J:
Abraham
v City of Cape Town
1995
(2) SA 319
(C)
at
323F-G. At the hearing, in answer to a question whether the
plaintiff intended to rely on the affidavits, the plaintiff’s
counsel replied in the affirmative. She informed the court that
although the plaintiff was present she would not call her to give
evidence as the plaintiff could not add anything to what is contained
in the affidavits.
[3] Although
it
is not the practice to lead evidence on the merits (i.e. the wrongful
act and its consequences) where application is made for
judgment by
default on a damages claim, in claims for damages based on
iniuria
and
for general damages under the
actio
lex aquilia
,
the merits of the case must be considered by the court to determine
the quantum of the damages and, where necessary, the court
should
receive evidence to amplify the allegations in the particulars of
claim. This is what has happened in the present case.
Although the
plaintiff has two separate claims in her particulars of claim the
plaintiff’s affidavit makes it plain that
the insulting words
were spoken and the physical assault took place during the same
incident on 5 July 2007. The plaintiff’s
legal advisors have
pleaded two separate causes of action because they consider this to
be jurisprudentially correct.
[4] The followings facts appear from
the plaintiff’s particulars of claim and affidavits. The
plaintiff was born on 2 January
1965 and was therefore 42 years old
at the time of the incident on 5 July 2007. The plaintiff was
employed as a secretary in the
Department of Defence and had worked
there for 19 years. Previously she had worked in a bank for 8 years.
At the time of the
incident the plaintiff was assisting in the
finance department of the Department of Defence in the Poyntons
Building. The defendant
is also employed by the Department of
Defence. She is a Staff Sergeant.
[5] Prior to the incident the
Department of Defence had obtained a garnishee order against the
defendant’s salary. On 5 July
2007 the defendant went to see
the relevant official at the Department of Defence’s offices in
the Poyntons Building to make
enquiries about the garnishee order.
When the defendant arrived at the office where the plaintiff was
working the official was
otherwise engaged and the plaintiff was
speaking on the telephone. The defendant went and stood in front of
the plaintiff’s
desk and demanded that the plaintiff assist her
immediately. The plaintiff replied that she was busy on the
telephone and that
she would assist her as soon as she, the
plaintiff, was finished on the telephone. The defendant then left
the office.
[6] After
the
plaintiff had completed her telephone call she went to the banking
department on the 23
rd
floor of the Poyntons Building to attend to some business and then
returned to her office.
[7] When the plaintiff arrived back at
her office the defendant was there. As soon as she saw the plaintiff
the defendant, who
is physically bigger than the plaintiff, assaulted
her. In full view of other employees of the Department the defendant
punched
the plaintiff once in the face and kicked her once on the
right lower leg. The defendant also told the plaintiff to ‘fuck
off’ and called her a ‘white bitch’. She also said
to the plaintiff: ‘Ek gaan jou vrek skiet of ek gaan
iemand
kry om jou dood te maak’. This also took place in the presence
of other employees of the Department. The plaintiff
does not say how
many of her co-workers were present and merely refers to them in the
plural.
[8] The plaintiff says that she was
very humiliated and degraded as a result of the words addressed to
her by the defendant.
[9] According to the plaintiff, as a
result of the assault she sustained the following injuries:
(1) a bruised upper lip;
(2) a bruised lower leg; and
(3) hyperventilation due to shock;
and she suffered post traumatic
stress disorder from 5 July 2007 until about 30 July 2007. Dr. De
Beer confirms that she found
all of the injuries when she examined
the plaintiff on 5 July 2007 and that she also found the plaintiff to
be suffering from post
traumatic stress disorder. She booked the
plaintiff off from work from 6 July 2007 to 30 July 2007 and treated
her with Urbanol
and Cipralex. The plaintiff says she still takes
this medicine but does not explain why. Neither does Dr. De Beer.
[10] If this is all that Dr. De Beer
can say it is clear that the plaintiff’s injuries were not
serious and that the condition
she described as post traumatic stress
disorder was neither serious nor of long duration. It appears that
the plaintiff has a
nervous disposition as Dr. De Beer says that the
plaintiff was suffering from a general anxiety disorder at the time
of the incident.
While this does not affect the question of damages
it probably explains how the plaintiff would experience the incident.
It is
significant that Dr. De Beer says nothing about the
plaintiff’s allegations that she will have to undergo further
medical
treatment by a psychologist and that she will suffer a loss
of income in the future whilst having medical treatment. There is no
evidence that the plaintiff suffered mental torture and any serious
trauma and discomfort.
[11] The defendant was obviously angry
when she insulted and assaulted the plaintiff. In the absence of any
evidence that she was
provoked the plaintiff’s allegations
regarding the reason for the incident must be accepted. The
defendant went to enquire
about the garnishee against her salary;
she demanded that the plaintiff assist her immediately and when the
plaintiff refused
to do so she became angry and reacted in the manner
set out in the particulars of claim.
[12] The
plaintiff’s counsel has not been able to refer to any reported
cases which would support an award of damages for
iniuria
of
R50 000 and for assault of R70 000. There are very few reported
cases which deal with damages for such claims and the cases
merely
indicate that the courts usually award substantial damages for such
wrongful acts.
[13] In
Brenner
v Botha
1956
(3) SA 257
(T)
(i.e.
54 years ago) where the plaintiff sued the defendant for
iniuria
(for
insult) the full court awarded the plaintiff damages of £25.
In that case the defendant (the plaintiff’s employer)
had said
to her (after she made a mistake measuring material) ‘You are
too useless you cannot even measure material’;
(and after she
had apologised and explained why she made the mistake) ‘You are
talking bunkum. I want to be sick when I
see your face. For my part
you can clear out. Clear out.’ and ‘You bloody bitch’
and ‘Clear out before
I throw you out of this bloody shop.’
The court clearly regarded the award of £25 as substantial and
commented that
in cases founded on
iniuria
which
includes contemelia substantial damages are always awarded by the
court. In
Ciliza
v Minister of Police and Another
1976
(4) SA 243
(N)
(i.e.
34 years ago) where a policeman had referred to the plaintiff as
‘kaffer’ and persisted in doing so after the
plaintiff
had objected to this, the full court held that this was an unfounded
aggression upon the plaintiff’s dignity and
ordered the Minster
to pay damages of R150. In
Mbatha
v Van Staden
1982
(2) SA 260
(N)
(i.e.
28 years ago) the court awarded the plaintiff damages of R2 000 for
the insults and assaults which occurred after an altercation
about a
parking place. At the scene the defendant repeatedly addressed the
plaintiff as ‘kaffer’, he threatened the
plaintiff and
talked loudly and excitedly of murdering the plaintiff, slapped his
face twice and threw a punch at the plaintiff’s
head, which
missed.
At the police station, when the policeman left the room
the defendant resumed calling the plaintiff ‘kaffer’,
repeated
the threats and punched him twice in the face, knocking him
to the floor and stunning him. He then kicked the plaintiff a few
times in the back while the plaintiff lay on the floor.
[14] The
determination of damages
for
non-patrimonial loss or damage is a matter for the discretion of the
court. In the exercise of its discretion it is proper
for the court
to take into account previous awards and make allowance for increases
in such awards. Nevertheless the result cannot
be determined with
mathematical precision and awards in previous cases are merely a
guide. The object of an award is to see justice
done – it must
be fair to both sides. See
De
Jongh v Du Pisanie NO
2005
(5) SA 457
(SCA)
paras
58-65.
[15
] With
regard to the
iniuria
claim
the plaintiff’s counsel contends that the insult is worse
because the defendant called the plaintiff a white bitch and
not just
a bitch. According to plaintiff’s counsel this is worse
because the word ‘white’ introduces a racial
element or
undertone into the insult. In this regard she referred to
Sindani
v Van der Merwe and Others
2002
(2) SA 32
(SCA)
.
In my view her reliance on this case is misplaced as the court was
dealing with a completely different situation in the context
of a
claim for defamation. While the context in which the words are used
obviously affects their meaning and how they are understood
I cannot
agree that the use of the word ‘white’ introduce an
element of racism into the insult. Insofar as the plaintiff
is a
white person this is simply an accurate description of her light
complexion. The use of the word ‘bitch’ is clearly
insulting as it implies that the plaintiff is a lewd or unpleasant or
malicious or treacherous person. The plaintiff also relies
on the
threat to kill her in the
iniuria
claim.
This is clearly correct. As pointed out in
Minster
of Police v Mbilini
1983
(3) SA 705
(A)
at
715F-G one of the rights protected by the
actio
injuriarium
is
the right to an unimpaired dignity which was defined by Melius de
Villiers in
The
Roman and Roman-Dutch Law of Injuries
as
‘that valued and serene condition in his social or individual
life which is violated when he is, either publically or privately,
subjected by another to offensive and degrading treatment, or when he
is exposed to ill-will, ridicule, disesteem or contempt’.
The
court also referred with approval to the following passage from the
same work:
‘Every person has an inborn
right to the tranquil enjoyment of his peace of mind, secure against
aggression upon his person,
against the impairment of that character
for moral and social worth to which he may rightly lay claim and of
that respect and esteem
of his fellow-men of which he is deserving,
and against degrading and humiliating treatment, and there is a
corresponding obligation
incumbent on all others to refrain from
assailing that to which he has such right’.
It is aggravating
that the
words were uttered in the presence of other co-workers.
[16
] The
assault was not serious. Neither the plaintiff nor the doctor are
able to say much about the injuries or their sequelae.
This is
obviously because there is not much to say. In the absence of clear
evidence as to the symptoms of post traumatic stress
disorder
suffered by the plaintiff it cannot be found that this had any
substantial effect on her.
[17
] Where
the delicts were committed in the same incident it serves no purpose
to make two separate awards and a globular award of
damages will be
made – see e.g.
Brenner
v Botha supra
at
260A-F:
Mbatha
v Van Staden supra
at
263C-D.
[18
] In
my view the plaintiff is entitled to substantial damages even though
the insult and assault were not repeated and the assault
itself was
not serious. In my view an appropriate award of damages is the sum
of R50 000.
[19
] The
following order is made:
I The defendant is ordered to pay to
the plaintiff the sum of R50 000;
II The defendant is ordered to pay
the plaintiff’s costs of suit.
___________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE NO: 57590/2007
HEARD
ON: 1 December 2010
FOR
THE APPLICANT/PLAINTIFF: ADV. R. FERGUSON
INSTRUCTED
BY: Erasmus Scheepers Attorneys
DATE
OF JUDGMENT: 10 December 2010