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[2016] ZAGPPHC 859
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Jordaan v Government of the Republic of South Africa and Others (82812/14) [2016] ZAGPPHC 859 (16 September 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NUMBER: 82812/14
16/9/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:-
GERHARD
JORDAAN
Plaintiff
and
THE
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
1
st
Defendant
THE
EXECUTIVE AUTHORITY OF THE DEPARTMENT OF
HOME
AFFAIRS OF THE NATIONAL GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA, REPRESENTED BY THE
MINISTER
OF HOME AFFAIRS
N.O
2
nd
Defendant
THE
EXECUTIVE AUTHORITY OF THE DEPARTMENT OF
TRANSPORT
OF THE NATIONAL GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA, REPRESENTED BY THE
MINISTER
OF TRANSPORT
N.O
3
rd
Defendant
SOUTH
AFRICAN AIRWAYS (PTY)
LTD
4
th
Defendant
AIRPORT
COMPANY SOUTH AFRICA
LTD
5
th
Defendant
JUDGEMENT
NKOSI: AJ
INTRODUCTION
[1]
The Plaintiff initially instituted this action against five
Defendants whose details appear on the heading above. Subsequently
he
withdrew his action against the first, third, fourth and fifth
Defendants. This action is therefore against the Second Defendant
only. ("the defendant")
[2]
The parties reached an agreement before the commencement of the trial
that the matter would proceed only in respect of the issue
of
liability. They both requested that the issue of quantum be postponed
sine die.
The matter was set down for trial over a period of
three days. The Plaintiff himself testified and called one witness to
testify
on his behalf. On the other hand, three witnesses testified
for the defendant.
THE FACTS IN BRIEF
[3]
The Plaintiff testified briefly that:-
3.1. He is an adult
married male and a South African citizen. He is a holder of a valid
South African Passport No. […] issued
by the Defendant. The
passport was issued on the 14 May 2009 and will expire on the 13 May
2019. The copies of the extracts from
his passport appear in bundle
"D" pages 32 - 68.
3.2. On the 2nd September
2007 he and his wife boarded an aeroplane from Bloemfontein to OR
Tambo airport. Their flight was delayed
and only arrived at OR Tambo
Airport at about 18h00. He was supposed to board a South African
Airways ("SAA") flight
at OR Tambo Airport and fly to Oslo,
the departure time was 20h20 that evening. At Oslo he was to board a
connecting flight to
Longyearbyern in order to catch the ship to
Arctic. This was a trip of his lifetime and was over a period of two
weeks.
3.3. He was travelling
with his wife and two other couples. All in all they were a group of
six people. Upon arrival at OR Tambo
Airport, he and his wife
proceeded to SAA counter number B36 to get their boarding tickets.
His wife was assisted and obtained
her Boarding Pass without any
glitches. However he experienced serious problems which are the
subject of the case before this court.
3.4. He furnished his
passport to a SAA official identified as Keletso. The said official's
system could not issue a boarding pass,
it indicated that there was a
problem and that the office of the Department of Home affairs ("DHA")
should be contacted.
This first attempt to issue a boarding pass took
place at approximately 18h45 whereas the plaintiff's flight was due
to depart
at 20h20.
3.5. The said Keletso
eventually sought assistance from her senior, Mr Monyamane who also
did not succeed to have the boarding pass
issued to the plaintiff in
time. The flight left without the plaintiff. His wife opted to remain
behind, in support of her husband.
3.6. He conceded that the
override code was issued by the DHA at 19h50 as indicated on page 70
of Bundle "F". It was put
to him that the airline agent,
Keletso had punched in the override code incorrectly in that she used
the airline override system
instead of that of the DHA. He could not
deny as he had no knowledge of that. He also did not know whether the
DHA or the SAA were
the cause for the delay in issuing the boarding
pass.
[4]
Mr Sello Eric Monyamane was thereafter called to testify for the
Plaintiff. He testified briefly that:-
4.1. He is employed by
the SAA as an operations manager since the year 2000.
4.2. He is aware of the
letter dated 3 September 2011 on SAA letterhead. He authorised the
letter to be typed and handed to the
Plaintiff. The letter is on page
69 of "Bundle D". The said letter reads as follows:
"This is to
confirm that Mr Gerhard Jordan holding
a
South African
Passport, date of birth […] 1957, with the number […]
expiring on the 13th May 2019, had problems when
checking in. The APP
was not going through and we reverted to contacting the Department of
Home Affairs (DHA) to assist with the
problem. Several attempts were
made by the airline representative to try to get hold of DHA using
the contact details 012 810 7670
I 701716343, the cell number 083 927
7366 but when we eventually got through to someone it was already too
late for passenger acceptance
hence Mr and Mrs Jordan didn't fly
SA264102 Sep 2011.
4.3. He was on duty on
the 2
nd
September 2011 when Keletso requested his
assistance at SAA counter B36. He discovered that the Advance
Passenger Processing ("APP")
system would not allow the
Plaintiff to be boarded on the flight to Oslo. He called DHA and was
given an overriding code. He gave
this code to Keletso's team leader
to punch in. The code did not work. When they managed to punch it
successfully, it was too late
for the Plaintiff to Board the flight.
They had previously experienced similar problems with the APP system
notwithstanding the
fact that their airline staff received training
about the use of this system.
He did everything in
Plaintiff's presence so that the Plaintiff would not think that the
problem was with SAA. He could not print
the Boarding Pass because
the APP system would not allow him to do so. He thereafter offered to
compensate the Plaintiff out of
courtesy by booking him into the next
flight and upgrading his ticket into business class. He did not print
out the Boarding Pass
ticket as it was too late to do so. He can't
remember what time was the override code received which cleared the
error for the
Boarding Pass ticket to be issued but he recalls that
the boarding gates were already closed. He also does not remember
what time
was the first attempt made using the override code to get
the Boarding Pass issued by the system.
4.4. He further testified
under cross examination that there was nothing wrong with the
passport. The problem was with the APP system.
When the problem was
finally resolved, it was less than 20 minutes to boarding time. He
conceded that the override code was given
at 19:50:33 by the DHA. He
does not know why the DHA system still reflected "Do not Board".
He was referred to page 72
of Bundle "F" where the document
states "Error 6082 inappropriate override code" and it was
put to him that
the reason for the error is because the airline
override code was used and that it was incorrect to use it. He
replied that he
did not know that. It was further put to him that the
Government override code should have been used, he replied yes. He
maintained
his position that the problem was not human error but the
APP system because there were many other passengers who experienced
similar
problems during that period. That concluded evidence for the
plaintiff. Ms Keletso was not called to testify.
[5]
Mr Nicholus Smith testified for the Defendant. He is employed by the
DHA since year 2009 at the Information Technology Section
responsible
for the passport system. In 2009, the DHA released a new passport
system known as the APP to improve its previous system.
This was done
in preparation for the 2010 World Cup hosted by the Republic of South
Africa. In the process information of some
passports was not
correctly captured into the database system of the DHA. In
Plaintiff's situation, the expiry date of his passport
was a day
prior to the date of issue of his passport. Clearly that was
incorrect.
[6]
In the event of such problem being encountered, the airline agent
must contact the DHA telephonically and the DHA official would
then
issue an override code generated by its system. When cross examined,
he conceded that it was the record in the system which
was incorrect
in that it did not match the hard copy of the passport. There was
nothing wrong with the hard copy of the Plaintiff's
passport. He
confirmed that the DHA is the custodian of the APP system. The
override code is generated by DHA. The problem with
the system was
rectified in November 2011.
[7]
The next Defendant's witness was Ms Elna Bates. She is employed by
the DHA for the past 28 years in the Immigration Services
Department.
Her task is to assist the airline when they experience problems. Her
department issues override codes. It is her colleague
who issued the
override code in Plaintiff's case. Her evidence was mainly about the
date when the APP system was introduced and
its maintenance. She also
corroborated Mr Smith's evidence concerning the process involved in
obtaining the override code. The
DHA has established an operational
centre (OC) which is operational 24 hours around the clock. There is
always a DHA agent on standby
to receive airline requests for
assistance with the APP related queries
[8]
Mr Collin Gelderblomu was the last witness for the Defendant. He is
employed by DHA for the past 30 years. His duties are to
run the
Department's movement control system as part of the Immigration
system. He is at the business side and not on the Information
Technology side. He is involved in the development of new systems. He
knows about the Plaintiff's incident of the 2nd September
2011. He
was on duty at that time and was responsible to furnish airlines with
a systems generated override code. On the day in
question, he is the
one who furnished the airline agent with the override code at
19h50.The APP system is able to identify the
nature of the problem
long before the airline agent contacts him for an override code.
However he is unable to contact the airline
agent telephonically to
assist in resolving the problem because the APP system does not
indicate the details of the airline agent
and he would not know which
agent to call. He gave the override code to the airline agent at
19:50:33. From the time he received
the call from the airline agent,
the system took about a minute to generate the override code. He
never received any other calls
from the SAA airline agent except the
one at approximately 19h50.
THE ISSUE IN DIPSUTE
[9]
It was submitted by both counsels, to whom I am indebted, that the
only issue to be decided upon is that of
culpa.
The
allegations of various acts of negligence on the part of the
defendant are contained in paragraph 12 of the particulars of claim.
[10]
These allegations of negligence can be classified into three separate
categories. Firstly, it is common cause that there was
a defect
relating to plaintiff's passport as on 2 September 2011 which defect
the defendant was aware of. The question therefore
is whether such
defect caused the plaintiff to miss his flight. Secondly, it is also
common cause that the override code was issued
at 19h50 by the
defendant whereas the flight was due to depart at 20h20. I have to
determine whether the defendant failed to assist
the plaintiff
timeously to enable boarding. Thirdly, I have to consider the
evidence on record and determine whether, the defendant
having been
aware of the defect, took reasonable steps to guard against the
reasonable possibility of the plaintiff missing his
flight.
CONSIDERATION OF THE
LAW
[11]
In Cecilia Goliath v Member of the Executive Council for Health,
Eastern Cape
[1]
the court stated
that:
'The
general
rule is that she who asserts must prove. Thus in
a
case such
as this
a
plaintiff must prove that the damage that she has
sustained has been caused by the defendant's negligence."
In
the present case, the plaintiff alleges that the reason he missed his
flight was as a result of the negligence of the defendant.
He
therefore carries the burden to prove his assertion.
[12]
In Cecilia Goliath's
[2]
case the
court referred, with approval, to the case of Osborne Panama SA v
Shell and BP South African Petroleum Refineries
[3]
(Pty) Ltd and stated that:
'Thus in every case,
including one where the maxim res ipsa loquitur is applicable, the
enquiry at the end of the case is whether
the plaintiff has
discharged the onus resting upon her in connection with the issue of
negligence.
[13]
The test of establishing negligence is long settled in our law. The
leading case in this instance is Kruger v Coetsee,
[4]
wherein the court held that:
"For the purpose
of liability culpa arises if-
13.1
a
diligens partar familias in the position of the defendant;
13.1.1.
would foresee the reasonable possibility of his conduct injuring
another in his persons or property and causing him patrimonial loss
and;
13.1.2.
would take reasonable steps to guard against such occurrence and;
13.2
the
defendant fails to take such steps".
[14]
The evidence has established that the problem was not with the
plaintiff's passport but with the database system kept by the
DHA.
This system indicated the expiry date of plaintiff's passport as
being a day before the date of issue of the passport. I have
no doubt
that such problem will result in serious inconveniences to the
passport holder for instance he maybe forced to spend considerably
long time at the check in counter either waiting for a boarding pass
to be issued or explaining over and over again to the authorities
questioning him about his passport. There is also a reasonable
possibility that he may be disallowed to travel. The reasonable
possibility of harm and patrimonial loss under these circumstances
should therefore be foreseen by a reasonable person in the position
of the defendant.
[15]
Mr Smith testified and confirmed that indeed there were discrepancies
between the information kept in the DHA's system and
the information
on the hard copies of the passports of a number of individuals. The
discrepancies were by nature an information
technology problem. The
DHA was aware of this problem and consequently put measures in place
to resolve the problem. This is yet
another indication that the
defendant did foresee the reasonable possibility of its conduct
causing harm and consequently patrimonial
loss to the plaintiff and
others in similar circumstances. The question therefore is whether
the measures put in place by the defendant
were reasonable to guard
against such harm and loss.
[16]
The evidence further indicates that the defendant established an
operation centre in order to assist the airlines with challenges
relating to passports. This centre is accessible 24 hours around the
clock. There are several telephone lines which include the
DHA's
officials' own private cell phone numbers set aside for this purpose.
The DHA's system is able to generate an override code
within a minute
from the time of request. Mr Gelderblom testified that the DHA's
system is linked to the airline APP's system but
the systems are not
interlinked. He is able to see the APP's system of the airline from
his own screen and in that way he is able
to detect a problem,
anticipate a telephone call from the airline and prepare himself to
assist long before the airline contacts
him for assistance. He
further testified that should there be a passport related problem the
airline staff at the check in counter
would be prompted by the APP's
system to contact the DHA for an override code. That airline official
would necessarily be required
to immediately contact the DHA and
request the override code. All of the above constitute the measures
put in place by the defendant.
It is clear that the defendant through
its officials was available around the clock to offer assistance and
resolve problems relating
to passports and in particular of the
nature experienced by the plaintiff. It is my view that a diligence
partar familias
in the position of the defendant would have
acted in the manner in which the defendant did.
The
evidence of the plaintiff and Mr Monyamani did not go to the extent
of challenging the reasonableness of the measures taken
by the
defendant. Their evidence also did not atleast suggest the nature of
reasonable steps which ought to have been taken by
the defendant.
[17]
It was submitted by the plaintiff that the error in the database
system of the DHA which relates to the plaintiff's passport
delayed
the issuing of the boarding pass and consequently the defendant
should be held liable. However the evidence of the plaintiff
under
cross examination is that he does not know whether it is the airline
or the DHA which caused the delay. When the plaintiff
was at counter
836 and after handing over his passport to Keletso, the first
transaction using plaintiff's passport was logged
into the APP
airline system at 18h45 and the system immediately reflected "contact
DHA". There is no evidence on record
that Keletso did contact
the DHA because she was not called as a witness. On the other hand Mr
Gelderblom testified that he arrived
at work at 18h00 and since then
till around 19h50 he never received a telephone call from the
airline. I found him to be a credible
witness more so that he was
consistent in his evidence. He did not exaggerate his evidence he
made concessions where it was appropriate
to do so, for instance he
conceded that the DHA's system needed to be improved so as to be
interlinked with the APP's system. I
also found his evidence to be
more probable as it is corroborated by other evidence, namely;
exhibits referred to on page 60 -
69 of Bundle F.
[18]
The second transaction was logged in at 19h06:15 and the airline APP
system immediately responded by indicating "invalid
passport
number format". That indicated that the airline official had
punched in an incorrect passport number. This fact is
not placed in
dispute. Since then the airline official made several transactions
all of which were unsuccessful. Mr Gelderblom
received a request for
an override code at approximately 19h50 and in less than a minute
furnished the official with the code.
The code was never used and
when used the incorrect option was utilised instead of the government
override option. Since the time
of the first transaction at 18h45
there was a delay in requesting the override code in order to suggest
that the DHA delayed with
the override code. I find that the delay
was not caused by the defendant.
[19]
The plaintiff bears the onus to prove his case on a balance of
probabilities. He must prove that the defendant acted negligently
and
that such negligence caused him patrimonial loss. The plaintiff has
failed to discharge this onus. I accordingly find that
his action
should fail.
[20]
It is therefore ordered:
1. The plaintiff's action
is dismissed with costs inclusive of defendants' counsel costs.
___________________
NKOSI
AJ
16
September 2016
[1]
Cecilia Goliath v Member of the Executive Council for Health,
Eastern Cape, ZASCA 2014 182 at para 8
[2]
Cecilia Goliath, supra at Para 12
[3]
Osborne Panama SA v Shell and BP South African Petroleum Refineries
(Pty) Ltd 1982 (4) SA at 897H - 898A
[4]
Kruger v Coetsee
1966 (2) AD 428
at 430 E