Summary of Judgment

Introduction

The proceedings were an unopposed civil action for damages instituted in the High Court (Gauteng Division, Pretoria). The claimant (referred to in the judgment as the plaintiff, and cited as the applicant in the heading) was Sithole Amelia Lele Pinkie. The defendants (cited as respondents) were the Commissioner of the South African Police and the Detective Station Commander, Midrand SAPS.

The plaintiff claimed damages in the amount of R5 000 000.00, describing the claim as one for “contumelia and/or violations of constitutional rights”. The pleaded cause of action was framed as arising from an alleged deliberate or intentional dereliction of duty by police officials, particularly an alleged refusal or failure to investigate a reported housebreaking and theft, which the plaintiff characterised as a violation of constitutional rights.

The matter came before Sibuyi AJ. Although the action was unopposed and evidence was led by the plaintiff, the court dealt primarily with whether the particulars of claim disclosed a legally sustainable cause of action in respect of constitutional damages and contumelia.

Material Facts

The court proceeded from the factual narrative advanced by the plaintiff in her testimony and particulars of claim, focusing on those facts relevant to whether a cause of action had been disclosed.

On the morning of 27 July 2014, the plaintiff discovered that property had been stolen from her residence, namely a Sony Home Theatre sound system, a DVD player, four speakers, and a remote. The estimated value of the stolen items was R4 500.00. She telephoned the Midrand police station to report the crime and waited for approximately five hours for police to attend the scene, but they did not arrive. She then went to the police station in person and a case was opened under CAS 738/07/2014.

The plaintiff stated that over a period of approximately 22 months, the police did not contact her regarding progress in the matter.

On 20 May 2016, the plaintiff attended the police station to enquire about the case. She alleged that the station commander told her she did not have a right to access the criminal docket and refused to assist her, while an acting station commander later assisted her and the closed docket was located. Upon reading the docket, the plaintiff formed the view that a statement attributed to Constable Manganye was inadequate, and she disputed various entries in the investigation diary.

In particular, the plaintiff disputed allegations recorded by police officials in the docket. One entry by Warrant Officer Sejaphala recorded that he had contacted and interviewed the plaintiff, which she denied. There was also an entry suggesting the case was reported late and therefore no fingerprint expert was dispatched. Additionally, the plaintiff disputed entries by Sergeant Skhosana relating to a purported visit to the scene, the availability of surveillance cameras, and fingerprint-related steps. The plaintiff maintained that these recorded versions were false and that fingerprints were not uplifted.

The plaintiff characterised the police conduct as unacceptable and fraudulent, as constituting victimisation and defeating the ends of justice, and as violating her constitutional rights. The court noted that this summary was derived from the plaintiff’s version and the pleadings, but the judgment ultimately turned on the legal sufficiency of the pleaded causes of action rather than the resolution of factual disputes regarding what investigative steps were taken.

Legal Issues

The central questions before the court were legal in nature and concerned the legal tenability of the pleaded claims on the facts as pleaded.

The first legal issue was whether, on the pleaded facts, the plaintiff had disclosed a sustainable cause of action for constitutional damages, including whether the plaintiff had properly identified a specific constitutional right infringed and whether the facts pleaded showed an infringement justifying damages as a remedy.

The second legal issue was whether the plaintiff had disclosed a sustainable cause of action for contumelia, including whether the claim was properly framed under the actio iniuriarum and whether the pleaded facts could be accommodated within that delictual framework.

These issues primarily concerned questions of law (the requirements for the causes of action and remedies invoked), with an ancillary consideration of whether, even accepting the plaintiff’s version, the alleged police inaction constituted a wrongful act in relation to her for purposes of the pleaded claims.

Court’s Reasoning

Constitutional damages

The court approached the constitutional damages claim by reference to established authority on when damages may be granted as a just and equitable remedy for breach of a constitutional right. It accepted, with reference to Fose v Minister of Safety and Security, that there may be circumstances where constitutional damages are competent under section 172(1)(b) of the Constitution, but emphasised that such a remedy arises only after the relevant constitutional right has been properly identified and the facts pleaded or admitted demonstrate an infringement.

The court noted that subsequent awards of constitutional damages had occurred in limited circumstances, specifically in Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd and Kate v MEC for the Department of Welfare, Eastern Cape. These cases were treated as illustrating that remedy follows right and infringement: the right must be identified and infringement shown on the pleaded facts before damages can be considered.

Applying those principles, the court held that the plaintiff had failed to identify and plead the relevant constitutional right infringed by the defendants or their members. The court further stated that it could not, on the pleaded facts, identify an infringement of a particular right that would justify a claim for constitutional damages. The court also indicated that even if the proven facts showed that some right had been infringed, that would not automatically establish a right to damages.

A further consideration in the court’s reasoning was whether the police conduct complained of—characterised as inaction or failure to investigate—constituted a wrongful act in relation to the plaintiff for purposes of the claim as framed. The court concluded that the facts as presented did not suggest wrongfulness in a manner supporting the pleaded cause of action. On that basis, the court found that the particulars of claim, as they stood, did not disclose a cause of action for constitutional damages and that this component of the claim could not be sustained.

Contumelia

Turning to contumelia, the court referred to the definition of contumelia as an injury, hurt, insult, or indignity inflicted by a defendant’s conduct, citing Timothy Chinyadza v Melton Phiri HH 76-09. The court explained that liability for contumelia ordinarily arises from the intentional invasion of rights such as dignity, reputation, or liberty, and that damages for such insult are typically claimed under the actio iniuriarum. The court identified examples of contexts in which actio iniuriarum claims are commonly brought, such as defamation, assault, false arrest, false imprisonment, malicious legal proceedings, rape, and seduction.

Applying these principles, the court held that no claim under the actio iniuriarum had been pleaded, and that the facts pleaded could not be accommodated within the recognised categories of delictual injury typically associated with contumelia as framed by the actio iniuriarum. Accordingly, the court held that the particulars of claim again did not disclose a cause of action under this heading.

Outcome and Relief

The court dismissed the plaintiff’s claim in its entirety. The judgment records an order in the following terms: “The plaintiff’s claim is dismissed.” No separate order as to costs is recorded in the judgment.

Cases Cited

Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (7) BCLR 851 (CC); 1997 (3) SA 786 (CC).

Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd [2004] 3 All SA 169 (SCA); 2004 (6) SA 40 (SCA).

Kate v MEC for the Department of Welfare, Eastern Cape [2005] 1 All SA 745 (SE); 2005 (1) SA 141 (SE).

Timothy Chinyadza v Melton Phiri HH 76-09.

Legislation Cited

Constitution of the Republic of South Africa, 1996, with specific reference to section 172(1)(b).

Rules of Court Cited

No rules of court are cited in the judgment.

Held

The court held that the particulars of claim did not disclose a cause of action for constitutional damages because the plaintiff failed to identify and plead a specific constitutional right infringed, and the pleaded facts did not demonstrate an infringement justifying constitutional damages as a remedy. The court further held that the claim for contumelia could not succeed because no basis was pleaded under the actio iniuriarum and the pleaded facts could not be accommodated within that delictual framework. The plaintiff’s claim was accordingly dismissed.

LEGAL PRINCIPLES

A claim for constitutional damages is not established merely by alleging improper conduct by state actors; the claimant must identify the specific constitutional right relied upon and the pleaded or admitted facts must show that the right was infringed. Only once the right and infringement are properly established does the question arise whether damages are a just and equitable remedy under section 172(1)(b) of the Constitution.

Even where a constitutional right may have been infringed, the existence of an infringement does not, without more, necessarily entail an entitlement to damages as a remedy; the remedial enquiry remains distinct from the infringement enquiry.

A claim for contumelia is grounded in the actio iniuriarum and generally concerns an intentional impairment of personality interests such as dignity, reputation, or liberty. To sustain such a claim, the pleadings must properly invoke and support the elements of the actio iniuriarum, and the alleged facts must be capable of fitting within that delictual cause of action.