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[2011] ZAECPEHC 28
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Joubert v Nedbank Ltd (1476/09) [2011] ZAECPEHC 28 (5 July 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
CASE
NO:1476/09
In
the matter between:
THERESA
JOUBERT
PLAINTIFF
And
NEDBANK
LIMITED
DEFENDANT
JUDGMENT
ANDREWS,
AJ
[1]
In this matter the plaintiff brought an action against the defendant
claiming damages as a result of the delict of malicious
prosecution.
On 7 June 2006 an amount of R100 000 went missing from a money bag
emanating from the defendant's Walrner Park Branch
in Port Elizabeth.
At the time the plaintiff was employed there as a teller.
Disciplinary proceedings were initiated against her,
she was
suspended from work and she was named as a suspect to the police, by
the defendant's in house investigator Jacques Simon
("Simon")
who laid a charge, although not against any specific person. In due
course internal proceedings were conducted
and she was found not
guilty. The state did not criminally prosecute her. As a result the
plaintiff instituted action claiming
damages. By agreement between
the parties, the trial was confined to the merits of the claim, with
the question of quantum standing
over for later determination if
necessary.
[2]
The following facts are common cause.
1
The plaintiff was a teller who had worked for nineteen years at the
time for the defendant. She and a Ms. C Steynberg ("Steynberg")
as treasury custodians of the Walmer Branch were together responsible
for preparing a deposit of R202,000 for collection from the
defendant's premises at the Walmer Branch by the firm SBV. This
required them to jointly count and bundle notes into "bricks",
place tags on the bricks of notes and loose bundles, place such
bricks and bundles in a sealable money bag together with a slip
recording the contents of the bag signed by them both. Finally they
were required to seal the bag and place it back in the main
safe
ready for collection by SBV.
[3]
The preparation of the deposit was undertaken by them in a small
secure treasury room measuring 1.5 m x 2.7 m. On one side of
the room
was the main safe where banknotes were kept. Opposite it was a safe
where coins were kept ("the coin safe")
on top of which
there was a melamine counter providing a work surface. Mounted above
this, near the ceiling, was a video surveillance
camera which
recorded activities in the room, but did not on the day in question
record all the activities of Plaintiff and what
took place
immediately below it. It was not contested that the plaintiff had
never before that date been privy to recorded video
footage of
activities within this treasury room to enable her to know what the
camera recorded.
[4]
The main safe could only be opened by the plaintiff and Steynberg
together, which was done, whereafter they counted the funds
and
placed them in a large money bag which was then sealed by threading
material through loopholes at the top of the bag. They
were required
to exercise dual control while preparing the deposit, meaning that
both persons were required to complete a task
together, and pay
attention to each other while doing so. While placing the money in
the bag it was positioned on the floor immediately
in front of the
coin safe and working table. Steynberg held it open and the plaintiff
placed the bundles of notes into it. Thereafter
while the plaintiff
was sealing it, Steynberg became inattentive and then turned away
from her to face the main safe for about
five seconds. The bag was
then placed back in the safe by the plaintiff. At the appointed time
it was collected by officers of
SBV. Video footage of the aforesaid
events in the defendant's treasury room revealed that as a result of
the placement and setting
of the video surveillance camera not all
the activities of the plaintiff and Steynberg were recorded on that
day. A video recording
was made at SBV of the opening of the sealed
money bearing bag no 2114 with seal number 42882, and the counting of
its contents
under dual control although the tape recordings of this
event have since disappeared. The said numbers were on the bag and
seal
when they left the defendant's Walmer Park premises.
[5]
When it was opened and the seal was broken the video footage
apparently revealed that the bag contained a shortfall of R100
000.
Subsequent to this event various polygraph tests were carried out on
employees of SBV, the plaintiff and Steynberg. As a result
of the
purported results of the tests the plaintiff was suspended. Cross
examination of the plaintiff regarding the tests and the
results of
the tests was disallowed after the plaintiff's counsel raised an
objection to the fact that the results of the tests
and the fact that
they were undertaken were neither pleaded nor discovered by the
defendant.
[6]
After the disappearance of the money, the defendant's forensic
investigator, Simon undertook an investigation including the
viewing
of video footage of the preparation of the funds by the plaintiff and
Steynberg as well as the footage of the treasury
room the next day at
SBV when the money bag was opened. He compiled a report containing
inter
alia
the
following findings.
a)
The plaintiff did not seal the bag in full view of the surveillance
camera.
b)
The video recording shows that Steynberg did not observe the entire
sealing process of the money bag by the plaintiff.
c)
The plaintiff had in her possession a bag which had previously been
in her possession, alternatively under her control, which
had been
empty, but when she left the Walmer Park Branch it was no longer
empty.
d)
She was not searched on leaving the bank by security personnel as
they were on a strike.
The
report concluded by a process of elimination based on the above and
other information gleaned from his investigations that on
the balance
of probabilities the plaintiff had misappropriated the funds.
[7]
Simon then laid a criminal charge though not against any person in
particular, but named the plaintiff as the only suspect.
Internal
disciplinary proceedings were instituted and a disciplinary hearing
held on 14
th
November 2006. The plaintiff was charged with:
"Dishonesty
in that you appropriated R100 000 on the 7
th
June 2006, and gross negligence in that you failed to follow laid
down procedure(s) in not sealing a bag under dual control resulting
in a loss of R100 000."
She
was found not guilty of the charges. The state did not prosecute the
plaintiff.
[8]
Plaintiff instituted an action for malicious prosecution arising out
of the instigation of criminal proceedings as well as arising
out of
the institution of the disciplinary proceedings. The plaintiff
therefore claimed that civil and criminal proceedings of
a malicious
nature were instituted by the defendant. In order to succeed with a
claim for malicious prosecution the Plaintiff must
allege and prove
that
2
:
the
defendant instigated or instituted the proceedings;
the
defendant acted with "malice" (or
animo
injuriandi);
the
defendant acted without reasonable and probable cause;
the
prosecution (or civil proceedings) failed.
[9]
The instituting of proceedings:
The
defendant instituted the disciplinary proceedings against the
plaintiff and these were terminated in her favour. As regards
the
criminal prosecution, Simon requested an investigation by the police
and he named the plaintiff as the only suspect. A docket
was opened.
However plaintiff was never criminally charged andno decision was in
fact taken to prosecute her. The plaintiff admitted
as much under
cross examination.
There
must be a prosecution before the plaintiff can bring an action for
malicious prosecution. Where there is no charge there has
been no
prosecution and therefore no basis on which to found a claim for
malicious prosecution.
3
The
plaintiff was named as a suspect but failed to prove that she had
been charged or criminally prosecuted, and thus failed to
prove that
the defendant instituted a malicious criminal prosecution against
her. This claim therefore fails.
The
remaining requirements for malicious prosecution will therefore be
considered only in regard to malicious civil proceedings.
The
plaintiff in an action for abuse of civil proceedings must allege and
prove a similar case
mutatis
mutandis
to
that of a plaintiff in an action for malicious prosecution, and must
therefore prove malice and absence of reasonable and probable
cause.
4
[10]
Absence of reasonable and probable cause
Reasonable
and probable cause in the context of delict means the (subjectively)
honest belief founded on (objectively) reasonable
grounds that the
institution of proceedings is justified.
5
The test is set out in
Minister
for Constitutional Development and Others v Moleko
6
,
where
Van Heerden JA stated:
“
[57]
In
Relyant Trading (Pty) Ltd v Shongwe
[2007] 1 ALLSA 375
(SCA) para 14
this court stated the following:
'The
requirement for malicious arrest and prosecution that the arrest and
prosecution be instituted in the absence of reasonable
and probable
cause was explained in the Beckenstrater v Rottcher and Theunissen
[1955 (1) SA 129
(A) at 136 A-B] as follows:
"Where
it is alleged that a defendant had no reasonable cause of
prosecuting, I understand this to mean that he did not have
such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged;
if despite
his having such information, the defendant is shown not to have
believed in the plaintiffs guilt, a subjective element
comes into
play and disproves the existence, for the defendant, of reasonable
and probable cause."
It
follows that a defendant will not be liable if he or she held a
genuine belief founded on reasonable grounds in the plaintiffs
guilt.
Where reasonable and probable cause for an arrest or prosecution
exists the conduct of the defendant instigating it is not
wrongful.
The requirement of reasonable and probable cause is a sensible one:
for it is of importance to the community that persons
who have
reasonable and probable cause for a prosecution should not be
deterred from setting the criminal law in motion against
those whom
they believe to have committed offences, even if in so doing they are
actuated by indirect and improper motives, [see
Beckenstrater v
Rottcher and Theunissen 135 D-E]"
[11]
The test of reasonable and probable cause has both subjective and
objective elements. Not only must the defendant have subjectively
had
an honest belief in the guilt of the plaintiff, but his or her belief
and conduct must have been objectively reasonable, as
would have been
exercised by a person using ordinary care and prudence.
7
The
plaintiff bears the onus of proving the absence of reasonable and
probable cause.
[12]
The plaintiffs particulars of claim pleaded that the defendant set
in motion disciplinary proceedings against her, falsely
accusing her
of misappropriating the R100 OOO with full knowledge that there were
no reasonable grounds for this action. The defendant
denied these
claims pleading
inter
olio
that
its investigation of footage of surveillance cameras recording the
preparation of the funds by the plaintiff and Steynberg
indicated
that the plaintiff did not seal the money bag in full view of the
surveillance cameras, her co worker did not observe
the entire
sealing process, she had in her possession a bag which had been empty
but upon leaving the Walmer Branch was no longer
empty, and she was
not searched as the security personnel responsible for such searches
were engaged in industrial action on the
date in question. It was
pleaded that having regard inter alia to these facts and
circumstances the defendant acted with reasonable
and probable cause,
bona
fide
and
without
animus
injurandi
in
instituting the disciplinary proceedings.
[13]
The plaintiffs counsel argued that objectively speaking it could
never be said that the defendant acting through Simon could
have had
a reasonable belief that the plaintiff was guilty of the offence in
question. In particular it was argued that none of
the factors
pleaded by the defendant individually or even cumulatively was in any
way indicative of the plaintiff's involvement
in the disappearance of
the funds. Further, that Simon adopted an unreasonable and highly
speculative attitude towards facts which
were completely innocent, or
at best for the defendant, neutral. It was argued that he made up his
mind as a result of what he
perceived to be the results of the
polygraph test, and no evidence was led as to whether proper
polygraph tests were conducted,
nor any testimony as to the validity
thereof. The probative value of such tests was also contested by the
plaintiff.
[14]
The defendant's counsel argued that as far as the subjective test was
concerned, Simon was emphatic in his evidence that he
honestly
believed in the plaintiffs guilt. As for the objective test it was
argued that the objective and common cause facts assembled
by Simon
were such that would lead a reasonable person to conclude that the
plaintiff was guilty of the offence charged.
[15]
During the trial herein an inspection
in
loco
was
held of the defendant's Walmer Park Branch whereafter various
dimensions of the defendant's treasury room were agreed and minuted,
as well as the spaces between the coin safe and the flanking walls,
and the position of the video camera above it. It was agreed
that the
space between the coin safe and the main safe in the treasury room
was a distance of approximately 1,2m, and the gap between
the coin
safe and the walls on either sides of it were measured as being just
over 21 cm. A R100000 "brick" of notes
was agreed to have
measured 14 cm by 15 cm. The height of the melamine counter fitted
above the coin safe was agreed to be 1,2m.
[16]
Extracts of the defendant's video surveillance recording of the
activities in the treasury room on the morning of 6
th
June 2006 were contained in a DVD which was discovered and provided
for viewing at the proceedings in this matter. It showed the
plaintiff and Steynberg preparing the funds in the 1,2m space between
the two safes. After the bricks had been placed in the money
bag
Steynberg became inattentive, turning her head away from the
plaintiff to look at the main safe for two periods of 2 and 4
seconds
respectively. She then turned away from the plaintiff completely for
a period of about 5 seconds and went to attend to
objects in the main
safe. This took place while the plaintiff continued working with the
bag on the floor, into which bricks of
money had just been placed.
Then the bag was placed in the safe, whereafter Sterynberg again
averted her attention from the plaintiff
and appeared to work with
the contents of the safe for three further periods of 7, 3 and 3
seconds respectively. Shortly thereafter
Steynberg left the treasury
room, followed by the plaintiff 15 seconds later. About five minutes
later they both returned to the
treasury room for about 2 seconds and
the plaintiff followed Steynberg out of the room.
The
evidence assembled by Simon.
[17]
Simon testified that he was an experienced forensic investigator
working for the defendant. He compiled his report op 2 August
2006
after having taken the following steps in his investigation of the
disappearance of the funds: He interviewed the plaintiff;
he
considered the statements of the plaintiff and Ms Steyberg; he viewed
camera footage of the preparation of the deposit at the
defendant's
treasury room and the breaking of seals and opening of the money bag
at SBV Walmer; he caused polygraph tests to be
taken of all persons
who handled the money, and he investigated the plaintiffs financial
position.
[18]
More particularly he testified that he established from his interview
with her, that the plaintiff went shopping during the
day on 6
th
June 2006 and bought various items including a jacket, chips and cold
drink which she took home the same day in a bag that she
had brought
to work. A pink bag which was neatly folded in the early part of the
day was used to carry goods when she left the
premises. She was not
searched and the security guards were on strike that week. The
plaintiff confirmed in her evidence that she
brought a handbag and
shopping bag to work every day and that she bought these items and
kept them under her counter that day,
taking them home in the bag at
the end of the day. She testified that staff were never searched on
leaving the premises.
[19]
Simon also investigated the plaintiffs finances. She was indebted to
Foschini and legal action had been taken against her as
a result of
which she had agreed to pay off a debt, and still owed an amount of
R1800. Her bank statements in the months of May
and June 2006 showed
numerous cheques which she had made out that had been returned marked
"refer to drawer", as there
were insufficient funds in her
account to honour them. The amounts involved were R340, R2800, R563,
R404 as well as an amount of
R129.90 recorded as a magnetic tape
shortage. The plaintiff operated an overdraft facility of R5600 and
wrote out the cheques when
her overdraft limit had been exceeded. He
stated that the plaintiff had told him that her husband had paid her
shortfall of R 2000
for school fees, after the cheque for these fees
in the amount of R2800 had been dishonoured. He investigated her
husband's account
and found no corresponding withdrawal from his
account. There were no further cheques dishonoured after the
disappearance of the
R100 000. The plaintiff in her evidence admitted
to having a previous history of teller shortages on her teller
history card, as
well as surpluses.
[20]
Simon concluded that the plaintiffs finances were precarious and that
she might have had a motive to commit the theft. This
conclusion was
shown in cross examination to have been somewhat of an exaggeration,
but it was clear that the
plaintiff
had been pursued for a debt, was living in excess of her means and in
particular in excess of her overdraft facility.
In these
circumstances the conclusion that she might have had a motive to
commit theft was not necessarily unreasonable.
[21]
Simon testified that he had viewed the video footage of the bag
being opened on the 7
th
June at SBV from three angles and saw that the bag bore the same
number as when it left the defendant's premises. He inspected
the
seal and saw that it had been broken once. The video also showed
that it was opened under dual control. He inspected the
bag to
investigate whether it had been tampered with and found that it had
not. He stated that there were no gaps in the video.
He concluded
that the bag had not been opened after it had left the defendant's
premises.
[22]
Simon described how he went about his investigation and the basis
for his conclusions. He determined that it was possible
for the
plaintiff to have taken the money, while she was sealing the bag and
while Steynberg's attention was averted. He then
checked whether
there was indeed an opportunity to do so. He concluded that it was
possible that she could have put the brick
of money with the coin
tins that had also been taken out of the main safe and were waiting
for collection by the tellers, next
to the gap between the wall and
the coin safe. This was in the area where she was in the process of
sealing the bag. Her coin
tin was among these tins and he concluded
that she could have left with the money later that morning, when she
took her tin out.
She always packed the bag on the floor, and there
was no possibility that she would be searched as the security guards
were on
strike. There was also no video surveillance in the room
that lead from the treasury room into the bank. He determined from
his
investigations that she could have had a financial motive. He
then drew conclusions as to who was the most likely suspect, based
on circumstantial evidence and a logical process of elimination. He
testified that the inferences he drew were not only drawn
from
individual facts but from all the evidence cumulatively including
the polygraph test results. He concluded that the plaintiff
was the
only likely suspect. From his investigation he formed the belief
that he still holds that she was guilty of the theft.
He concluded
that the risk of being caught was negligible given the objective
video evidence and Steynberg's lack of attention
within the treasury
room.
[23]
Certain of Simon's conduct in the investigation was referred to as
questionable by the plaintiff and indicative of an attitude
that he
had decided she was guilty without evidence and that he was
determined to have her prosecuted. This conduct which took
place on
the 29
th
and 30
th
June 2006 included the fact that he took the plaintiff to the police
station on two occasions without her permission and without
informing her of his intended destination, and the fact that he and
another investigator, one van Rooyen questioned her for an
extended
period in order to secure a confession.
[24]
These facts were not disputed by the defendant but the plaintiff
testified that other far more serious conduct was also perpetrated
by Simon and his fellow investigator, at the same time. She alleged
that she was taken by Simon under false pretences to the
police
station and was threatened with dire consequences by the
investigators on several occasions. However the plaintiff was
not a
credible or reliable witness. Numerous statements in her evidence
during the trial relating to material facts were proved
to be
unsubstantiated or false during the course of the proceedings. These
include the dimensions of the treasury room, the extent
of the gap
between the coin safe and the wall, and the threat that she would be
raped in custody made allegedly while she was
being questioned by
Simon and van Rooyen. Her evidence in regard to the conduct of the
investigators as described above should
thus be treated with
circumspection. The facts that were proved about these two event
show that Simon and van Rooyen were overzealous
in the way thay
dealt with the investigation, but not in my view that Simon formed a
preconceived view that she was guilty.
[25]
As to his credibility as a witness, Simon was at times somewhat
evasive but not to the extent that would make me conclude
that his
evidence about the investigation and the conclusions that he drew
from them were not credible. His evasive answers also
to a large
extent related to events which took place two weeks after he had
completed his investigation and formed the opinion
that she was
guilty. It was the plaintiffs case that Simon formed this opinion as
a result of the polygraph test results which
were made known on 15
June 2006 and these events took place on 29
th
and 30
th
June 2006.
[26]
I regard Simon's evidence as to how he formed his opinion that
plaintiff had probably taken the money as having been consistent
and
credible and based on of all the information that he investigated,
and this included the polygraph tests. The investigation
was
methodical and done according to the normal prescripts of an
investigator in his position. He concluded that the plaintiff
was
the last person to handle the money before it was sealed in the bag
and was the only person whose actions were not accounted
for by
being recorded by surveillance cameras, and that she had an
opportunity and a possible motive to commit the theft. His
conclusions were based on circumstantial evidence from which he drew
inferences that were consistent with the facts. I conclude
that the
plaintiff failed to prove its assertion that the defendant's
conclusion was based on no evidence save for the polygraph
test.
Simon testified that as a result of his investigation he formed an
honest belief that the plaintiff had appropriated the
funds. No
evidence was advanced to show that his conclusion was based on
anything false or outside of the investigation nor was
his report to
the police false in any way. It is therefore accepted as credible.
[27]
The next question is whether the conclusion drawn by Simon is
reasonable. Simon did not investigate all possible facts. The
defendant is only expected to have taken reasonable measures to
discover the facts upon which it is to base his conclusion that
the
plaintiff was guilty of the offence. It is not necessary for the
defendant to have tested all relevant facts before proceeding
with
the prosecution.
8
There must be sufficient facts known to the defendant from which a
reasonable person could have concluded that the plaintiff
had
committed the offence in question and a mere honest belief that the
facts amount to the offence irrespective of the legal
requirements
is insufficient.
9
The information on which the instigator of the prosecution acts need
not be true but he or she must believe it to be true on
reasonable
grounds.
10
Having regard to the nature of the facts of this matter I consider
that Simon took reasonable measures to ascertain who might
probably
have committed the offence. Nothing beyond what he evaluated cried
out for investigation. On the other hand nothing
exculpatory in
favour of the plaintiff was evident from the investigation. Having
concluded that the set of facts he investigated
was reasonable and
sufficient, the enquiry must turn to whether there were reasonable
grounds for instituting the disciplinary
enquiry on the basis of
these facts. Speculation as to whether the money could have been
removed after the bag was left in the
safe by the plaintiff and
Steynberg or after it was removed from the defendant's Walmer Park
Branch is thus excluded from the
analysis of reasonable and probable
cause.
[28]
A reasonable person would have concluded, based on the investigation
that it was physically possible for the plaintiff to
have taken the
money, while Steynberg's attention was averted. The plaintiff was
the last to leave the room, 15 seconds after
Steynberg and could
have concealed it further at this point so as to be able to remove
it. It was however argued on behalf of
the plaintiff that it was not
probable that she would have committed the theft because of the risk
of detection by the video
surveillance camera in the treasury room.
Her uncontested evidence was that she did not know its range of
detection. Simon conceded
under cross examination that he mistakenly
assumed that the plaintiff knew the camera's range. Objectively
speaking the video
evidence showed that the risk of detection was
not high, as could be seen from the video footage showing the camera
range and
the inattentiveness of Steynberg. The argument made on
behalf of the plaintiff was that because she did not know how much
of
her activity was being monitored by the surveillance camera she
would have been deterred from committing theft by its mere presence.
Simon on the other hand concluded that it was reasonable to infer
that she was aware that the risk of detection was not so great.
[29]
The mere presence of a surveillance camera in a room does not in my
view necessarily provide a deterrent to theft. Its deterrent
value
would depend on its position in relation to other objects, including
people, in the room. Simon testified that tellers
were required to
follow procedures when counting money, in particular doing so
directly in front of the camera. This in my view
would have provided
the requisite deterrent. But in this case the camera was mounted on
a wall facing obliquely into the room.
Directly under it was a work
counter which ran along the full length of the wall under which was
situated the coin safe. The
height from the ground of the counter
was 1,2 m. The work counter was therefore placed in a position which
was not directly in
front of the camera. Working on the floor at the
base of the coin safe was a position even further from being in
directly front
of the camera, and its deterrent value would have
been reduced accordingly, whether the plaintiff knew its precise
range or not.
[30]
I do not think that Simon's scepticism as to the deterrent value of
the camera is unreasonable. His testified that there
had been a
previous shortage from the preparation of a deposit for collection
by SBV attributed to the plaintiff. This statement
was not probed in
cross examination. Even if this shortage had not been attributable
to the plaintiff it demonstrated that the
presence of a surveillance
camera was not necessarily a deterrent to theft.
[31]
A reasonable person considering these facts would have concluded
that the security measures and practices of the defendant
would not
have provided much deterrent to a determined and opportunistic
thief. Working on a regular basis with Steynberg would
have given
her co-worker the opportunity to observe how strictly she enforced
dual control and would have enabled her to take
advantage of
inattentiveness if she chose to do so. Simon's conclusion that the
plaintiff had an opportunity to take the funds
and probably did so,
based on these observations which he made, and the set of facts that
he investigated, is not unreasonable.
It is the conclusion that a
reasonably prudent person would have made and is the most readily
apparent and acceptable inference
that can be drawn from the
circumstantial evidence that he assembled. The plaintiff therefore
did not prove that the defendant
acted without reasonable and
probable cause in instituting the disciplinary enquiry. The fact
that at the end of it, the chairperson
apologised for her alleged
arrest, (a fact that has not been determined to have taken place),
does not alter this conclusion.
The apology did not relate
specifically to the decision by the defendant to institute
disciplinary proceedings.
[32]
The plaintiff therefore failed to prove that the civil prosecution
was without reasonable and probable cause. In the circumstances
the
cause of action fails regardless of the motive for instituting the
prosecution.
11
[33]
In preparing my judgment in this matter it became apparent to me
that no argument had been made by the parties regarding
the issue of
whether the defendant is liable in respect of the infringement and
violation of the plaintiffs personality, more
particularly her
fama
and
dignity arising out of the alleged conduct of Simon in taking the
Plaintiff under false pretences on two occasions to the
police
station. The parties were afforded an opportunity to make further
written representations which are considered hereunder.
As stated
above, it was common cause that the defendant took the plaintiff to
the police station on two consecutive days without
her permission
and without advising her of his intended destination. On the second
occasion a search warrant was shown to the
plaintiff and thereafter
members of the South African Police searched her house. Based on the
fact that the plaintiff was not
a credible witness I am unable to
find that the defendant took the plaintiff under false pretences.
The conduct which is common
cause will be considered in respect of
these further possible delicts.
[34]
The defendant argued that plaintiffs case was directed towards a
claim based on alleged malicious prosecution, advanced in
the
opening address, through evidence and in closing argument both in
the heads of argument and during argument itself. It was
argued that
the recognition of any claim other than for damages in consequence
of the alleged infringement and violation of the
plaintiffs
personality, more particularly
fama
and
dignity in consequence of being maliciously prosecuted, would not be
competent, as it was inconsistent with the evidence as
well as the
pleaded case. This argument has merit. The plaintiffs pleadings and
evidence do not advance a case for any delict
other than alleged
malicious prosecution. More particularly:
[35]
The plaintiffs supplementary heads of argument allege that her
rights were infringed as a result of her home being searched
by
armed members of the South African Police services in the presence
of her minor children. The defendant correctly argued that
this
conduct of the SAPS cannot be attributed to the defendant.
[36]
It was argued further that plaintiffs dignity was violated as a
result of the defendant's conduct in taking her to the police
station allegedly under false pretences on two occasions. However no
evidence was led by her to prove that she felt insulted
in
circumstances where a reasonable person would have felt insulted
12
.
To be considered an infringement of dignity the subjective feelings
of dignity must indeed have been infringed. As stated by
Smalberger,
JA in
Delange
v Costa
13
"The
plaintiff in order to succeed would have to establish the further
requirement that he suffered an impairment of his
dignity. This
involves a consideration of whether the plaintiffs subjective
feelings have been violated, for the very essence
of an injuria is
that the aggrieved person's dignity must actually have been
impaired. It is not sufficient to show that the
wrongful act was
such that is would have impaired the dignity of persons of ordinary
sensitivities,
[37]
It was also argued that the defendant's conduct amounted to nothing
less than a disguised arrest and therefore that the plaintiffs
personality rights were infringed in that there was a wrongful
deprivation of liberty. However the impairment of plaintiff's
personality by the infringement of her bodily integrity or
corpus
was
not pleaded.
[38]
It was submitted that as a result of the defendant's conduct, as
described above, her
fama
or
good name which she enjoys in society was infringed. A defamatory
statement is one which tends to diminish the esteem in which
the
person to whom it refers is held by others.
14
The plaintiff did not plead facts to indicate what statement
resulted in the alleged loss of reputation, nor. was evidence led
that a diminution of her esteem in the eyes of others occurred, as a
result of its publication.
[39]
Finally the plaintiff's supplementary heads of argument submit that
the defendant's conduct infringed her right to privacy.
It was
submitted that although privacy exists as an independent personality
right at common law, our Courts perceive claims under
this heading
as claims of infringement of dignity. This aspect will be therefore
considered as part of the plaintiffs claim for
infringement of her
dignity.
[40]
The right to privacy embraces the right to be free from intrusions
and interference by the state and others in one's personal
life.
15
Such freedom from interference may require that a citizen be free
from unauthorised disclosures of information about his or her
personal life.
16
The second connotation of privacy implies that individuals have
control not only over who communicates with them but also who
has
access to the flow of information about them.
17
Privacy can be infringed only by acquaintance with persona! facts by
outsiders contrary to the determination and will of the
persons
whose right is infringed, and such acquaintance can take place in
two ways only, namely through intrusion (or acquaintance
with
private facts) and disclosure (or revelation of private facts).
18
Thus a right to privacy encompasses the competence to determine the
destiny of private facts. This determination of destiny,
in turn,
embraces the right to decide who and under what conditions private
facts may be made public.
19
Section 14 of the final Constitution establishes the right to
privacy as a fundamental right. In order to establish an
infringement
of the constitutional right to privacy the plaintiff
would have to show that she has a subjective expectation of privacy
which
was objectively reasonable, and which has been violated.
20
[41]
In the present case there is no indication that intrusion into or
disclosure of the affairs of the plaintiff took place in
any manner
which would satisfy the requirements for invasion of privacy set out
above. Nor did the plaintiff lay the basis for
her subjective
expectation of privacy which was both objectively reasonable and was
subsequently infringed, in order to establish
an infringement of her
constitutional right to privacy. This claim therefore fails.
I
make
the following order:
[42]
The plaintiffs claim is dismissed with costs.
A
ANDREWS
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD: 11 March 2011
DATE
DELIVERED: 5 JULY 2011
For
the Plaintiff: ADV BEYLEVELD
Instructed
by: LAUBSCHER ATTORNEYS
12
Buckingham Road
Mill
park
PORT
ELIZABETH
Tel
no 041 373 1760
FAX
No 041 373 1774
REF:
MR LAUBSCHER/nj
For
the Defendant: ADV GIRDWOOD
Instructed
by
:
PAGDEND
ATTORNEYS
PAGDENSCOURT
18
CASTLE STREET
PORT
ELIZABETH
Tel
no 041 502 7200
FAX
No 041 373 1774
REF
RH PARKER /djs/CL 119/0001
1
Paragraphs
2-7 herein.
2
Minister
for Justice & Constitutional Development v Moleko
(131/07)
[2008] ZASCA 43
(31 March 2008)
{
Moleko),
para
8
3
LAW$AVo\
15
(2) 2008 ("LAWSA") para 316; Amerasinghe, CF
Aspects
ofthe Action Injuriarum in Roman Dutch Law
Colombo
Lake House 1968 ("Amersinghe") 13 14
4
LAWSA481
5
MWS4para323
6
para 57
7
Van
Noorden v Wiese
(1882)
SC 43
54;
Fyne
v The African Realty Trust Ltd
1906
EDC 248
256;
Banbury
v Watson
1911 CPD 449
460; Madnitsky v Rosenberg 19491
PH
J5 (W) 13 14;
May
v Union Government
1954
3 SA120(N) 129;
LAWSA
para
323
8
Madnitsky
v Rosenberg
1949
(1) P H J5 (WLD)
9
Waterhouse
v Shields
1924 CPD 155
168;
Ochse v King Williams Town
Municipality
supra 858 ;
Heyns v Venter
2004(3) SA 200(T)
10
Madnitsky
14
11
Ochse
v King Williams Town Municipality
supra
857
12
Neethling
and Potgieter,
law
of Delict
(5
th
ed) p 322
13
1989 ISA857 861
14
S
A Associated Newspapers Ltd v Schoeman,
1962(2)
SA 613 (AD) at 616-17
15
D
J
McQuoid
Mason
Privacy
in
South African Constitutional law 2
nd
edition at 38-1 (McQuoid Mason
Privacy)
16
Case v Minister of Safety and Security
1996(3)
SA 617 (CC)
17
D J McQuoid Mason
The
Law of Privacy in South Africa
(1977)p
99
18
Neethling JM, Potgieter and PJ Visser
Neethlings's
Law of Personality
(4
th
edition 1996) p 243.
19
McQuoid
Mason
Privacy
38-2
20
Bernstein and Others v Bester and Others NNO
1996(2)
SA 751