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[2014] ZAGPPHC 366
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Jansen Van Vuuren v Sullivan (20254/2012) [2014] ZAGPPHC 366 (13 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 20254/2012
DATE:
13/6/2014
IN
the matter between:
HERMINA
ELIZABETH JANSEN VAN
VUUREN
........................................................
PLAINTIFF
And
AUDREY
SULLIVAN
......................................................................................................
DEFENDANT
JUDGMENT
TLHAPI
J
[1]
The plaintiff ‘s action is based on the
actio iniuriarum.
She issued summons against the defendant and claimed damages in
the amount of R400 000.00.
In
the particulars of claims she alleged:
“
3
Gedurende
die tydperk 2011 tot 2012 het die verweerderes onregmatig en opsetlik
verskeie
skrywes aan die eiseres gerig waarvan die inhoud lasterlik was met
die
volgende
strekking:
3.1
Dat die eiseres ‘n “common girl” van
Pretoria-Noord is wat ander vrouens se
mans
steel soos blyk uit Aanhansel “JV1”.....
3.2
Dat die Eiseres pretensieus is en verhoudings met getroude mans aan
knoop
soos
blyk uit Aanhansel “JV2” .....
3.3
Dat die Eiseres ‘n verhouding met haar baas aangeknoop het om
sy geld se
onthalwe
soos blyk uit Aamhansel “JV3”.....
3.4
Dat die Eiseres ‘n onaaggename persoonlikheid het waaraan geen
chirurgie
iets
kan doen nie soos blyk uit Aanhansel “JV4”
4
Die
voormelde bewerings is by wyse van faks na die Eiseres se werk,
waartoe
verskeie
ander werknemers toegang het, gestuur, sowel as per pos soos blyk uit
Aanhansels
“JV5” en “JV6”, synde koeverte waarmee die
mededelings aan die
Eiseres
versend is.”
[2]
The plaintiff testified that she had over a period received mail via
post and facsimile which were sent to her employers address
and
these letters consisted of injurious content. She did not know the
individual who sent the letters and did not know the reasons
or the
purpose for which they were sent. She averred that ‘JV1’,
‘
JV2’, ‘JV3 and ‘JV4’
bore some similarities even though some were written in the format
of a poem. ‘JV6’
consisted of three envelopes addressed
to the plaintiff and these were in different hand writings. On 9
March 2012 she received
‘JV2” by facsimile. She
immediately called the number from which the document had been faxed
and it had been sent
from a Kodak outlet in Wonderboom.
[3]
The plaintiff drove to the complex which was about 10 kilometres from
her place of employment. She was informed that no video
footage was
available for her to view. Fifi a black employee at Kodak left to
look around for the sender of the fax and located
her at Woolworths
after which went to the said store to have a glimpse of the woman and
a description of the clothing the
woman was wearing was given.
The plaintiff testified that she recognized the woman as the one who
was living with her ex-husband.
She did not confront the plaintiff.
The plaintiff testified the defendant sent the letter to her
out of jealousy of her and
that the defendant had always interrogated
her children about her.
Marienne
van Rhyn confirmed that the fax was sent from her employment and she
gave a description of the clothes the person was wearing
and that she
had sent out Fifi to look for the lady in the shopping complex around
Woolworths. Further that the defendant was the
lady who came into the
store to send the fax.
[4]
About six days later the plaintiff drafted a statement and obtained
thedefendant’s photo from a photograph of the defendant
and her
children which was on a computer and caused it to be copied onto
statement, together with the tax invoice which was
paid for the fax.
The statement was signed by two employees at Kodak, Marienne van Rhyn
(‘Ms van Rhyn) and Caroline Houmann.
Fifi did not sign.
The statement read:
“
Hiermee
verklaar ons (Mariene van Rhyn)........en (Caroline Houmann ......dat
die
dame op die foto wel die dame was wat die faks gestuur het of die 9de
Maart....die
faks was on en by 10:50 gestuur die oggend. Die dame het ‘pink
en
wit toppie gehaat met ‘n lig pink rompie”
The
plaintiff testified that there were about 40 employees at her place
of employment and that she been in a relationship for two
years with
her employer, who was married at the time. The letters were in sealed
in envelopes and posted to her and she had
shown the letters to
two of her colleagues. The faxes came through her personal computer
at IT and she was not certain if
they were seen by her colleagues
because some of the employees had access to her computer. The
letters and poems had similarities
which referred to her extra
marital relationship; her physical attributes being her nose and
breasts and, referred to her as a
common girl and other descriptions.
The letter faxed from Kodak on the 9 March 2012 had common features
to those that preceded
it. In cross examination she revealed that she
had employed the services of an expert regarding the hand writing on
the envelopes
and he could not link them to the defendant. The report
by the expert was not discovered. The letters and faxes had
humiliated
her and caused her to withdraw from her colleagues and
socially.
[5]
The defendant confirmed her relationship with the plaintiff’s
ex-husband and that the relationship commenced four years
after the
divorce with plaintiff. She had been introduced to the plaintiff and
plaintiff had not been responsive. She denied being
at Wonderboom
Junction Complex on 9 March 2012. On that day she participated in an
a 10km SANDF Fun Race at ThabaTshwane. The event
started at 9h00 and
the prize giving ceremony was at 11h00. She later left for a 12h00
spa appointment. The defendant did not have
a cordial relationship
with the plaintiff. There had been a disagreement long after summons
had been issued and she had sent
an ‘sms’ to the
plaintiff, prompted by financial demands made by plaintiff on
her ex-husband. The defendant
testified that she contributed 50%
towards household expenditure and was entitled to complain.
Mr
Janse van Vuuren testified that he and the defendant enjoyed a good
relationship with his children. The plaintiff had displayed
antagonism towards the defendant and his other former girlfriends.
The plaintiff had told him to inform the defendant to stop sending
her letters and he had gone to Kodak to check for himself to try and
ascertain for himself.
[6]
On the authorities cited on behalf of the plaintiff it was trite that
the
actio iniuriarum
protected
the dignity of the individual from impairment by others. In
Ryan
v Petrus
2010 (1) SA 169
(ECG)
at
paragraph [11] Pickering J stated the definition of dignity by
‘
Melius de Villiers in 1899 in his
well known work The Roman and Roman Dutch Law of Injuries at 24 as:
“
that
valued and serene condition in his social or individual life which is
violated when he is publicly or privately, subjected
by another to
offensive and degrading treatment, or when he is exposed to ill-will,
ridicule, disesteem or contempt.
Further
on at 24 and 25 the following is stated:
“
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.”
In
the Ryan matter
supra,
it
was reiterated that even vilest of individuals were entitled to
dignity, so whether the plaintiff’s physical features did
not
enhance her in the view of others, whether she was a common girl or
had been living in an adulterous relationship with her
employer, she
remained deserving of dignity in her own right. Any impairment on
these grounds were unlawful.
[7]
Before dealing with the issue of liability it is important to
establish whether the plaintiff has established on a balance of
probabilities that the defendant was responsible for the utterances
in the letters and poems and whether she was the individual
identified by the plaintiff and Ms van Rhyn . It was argued for the
plaintiff that Ms van Rhyn had positively identified
the
defendant as the lady who came to the Kodak store to fax.
The
plaintiff’s proof to a large degree relies on the alleged
identification of the defendant at the Wonderboom Junction Complex
on
9 March 2012 as proof that the defendant was the author of the
letters and poems. In my view Ms van Rhyn’s statement under
‘JV5’ cannot be relied upon as establishing on a
balance of probabilities, the identity of the lady who faxed
the
document on 9 March 2012. The video was not in working order, so the
only other confirmation was for her to have made an observation
at
Woolworths. She does not rely on her own observation of defendant
after the arrival of the plaintiff at the store and she does
not give
any basis why she is sure of the identity of the defendant. There is
always the possibility of the coincidence of the
presence of someone
at the shopping complex wearing pink attire. No physical features are
relied upon, she also did not know the
person. She testified that she
recommended to Fifi to go looking around the complex and suggested
Woolworths. She does not explain
why she suggested this store in
particular. She does not say if she personally saw the woman entering
the said store, or that after
Fifi had seen the woman, she
accompanied the plaintiff to where Fifi was. Fifi was not called as a
witness.
I
am mindful of the fact that if reliance is had also to the identity
of the defendant from the photograph on the statement, the
plaintiff
was the author of such document. There is no evidence by Ms van Ryn
why in particular the photograph could have resembled
the woman in
pink at Woolworths. I am therefore not satisfied that Ms van Rhyn
positively identified the woman who faxed the document
as the
defendant.
I
am further not satisfied that the plaintiff has proved on a balance
of probabilities that the woman in the pink attire was the
defendant,
especially in the absence of corroboration from Fifi. Having regard
to the relationship between the plaintiff and defendant
one would
have expected the plaintiff to have confronted the defendant in the
presence of Fifi and for Fifi to have made the defendant
aware, even
though no conversation about the event at the store was engaged .
[8]
What now remains is whether the plaintiff has proved on a balance
ofprobabilities that the defendant was the author of the letters
and
the envelopes. There is no proof that the defendant was the author
and no basis was given as to why the defendant in particular
could be
the author. The plaintiff and defendant have known each other for a
considerable time and it was apparent from their testimony
that
their relationship was not a cordial one. However, on a clear reading
of the letters and poems holistically, the probabilities
are varied
and these could have emanated from so many other sources, her
employer’s wife, or those sympathetic to her situation,
or her
co-employees. The defendant does admit to having sent an
‘
sms’
to the plaintiff but that this had only been after the summons had
been issued and that it related to what the defendant
believed to
have been unreasonable financial demands by the plaintiff on her
ex-husband. I am not satisfied that the plaintiff
has discharged her
onus.
[9]
In the result the following order is given:
1.
The plaintiff’s claim is dismissed
with costs.
__________
TLHAPI
V.V
(
JUDGE OF THE HIGH COURT)
MATTER
HEARD ON : 12 NOVEMBER 2013
JUDGMENT
RESERVED ON : 13 NOVEMBER 2013
ATTORNEYS
FOR THE PLAINTIFF : VAN HEERDEN & KRUGEL
ATTORNEYS
FOR THE DEFENDANT : STEVE BESTER ATT