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[2013] ZAGPPHC 401
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Kemp v Zissimides and Others (127/2012) [2013] ZAGPPHC 401 (11 November 2013)
IN THE NORTH
GAUTENG HIGH COURT. PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
No: 127/2012
Date:
11 November 2013
Not
Reportable
Not
of interest to other judges
LORRAINE
KEMP
..........................................................................................
PLAINTIFF
And
A
ZISSIMIDES
........................................................................................
1st
DEFENDANT
M W
BOTHMA
......................................................................................
2nd
DEFENDANT
SERVEST (PTY) LTD (reg no
1997/006391/07)
..................................
3rd
DEFENDANT
JUDGMENT
KOLLAPEN J
1. This is an action for damages
brought by the plaintiff against the third defendant in which the
plaintiff seeks damages following
injuries the plaintiff allegedly
sustained following her forcible removal from a restaurant by
security guards in the employ of
the third defendant.
2. The action proceeded only against
the third defendant and the Court at the request of the parties,
satisfied that it is expedient
to do so, made an order separating
merits and the quantum.
BACKGROUND
3. On the 18th of October 2010, the
plaintiff was a patron at the Q.Ba Restaurant situated at the Grove
Mall in the east of Pretoria.
At some stage during the evening at
approximately 20H30, the manager of this restaurant summoned security
guards in the employ
of the third defendant, to allegedly forcibly
remove the plaintiff from the restaurant.
4. There is a dispute with regard to
the conduct of the plaintiff when the guards were summoned. The
plaintiff claims that she had
only complained about poor service in
the restaurant and that there was no reason to summon the security
guards or to forcibly
remove her.
5. The third defendant's stance is that
the plaintiff was intoxicated, abusive and was being a nuisance to
other patrons, and that
her removal from the restaurant was
warranted. Their case however, is that this was not forcibly done as
the plaintiff ultimately
elected to leave the restaurant voluntarily
and the role of the guards was merely to assist her and to escort her
from the restaurant.
THE ISSUES IN DISPUTE
6. The only issue in dispute on the
merits is whether the plaintiff was forcibly removed from the Q.Ba
restaurant by the guards
in the employ of the third defendant and
thereby was injured in the process or, whether the plaintiff w'as
simply assisted and
escorted out of Q.Ba restaurant in a lawful
manner by the guards of the third defendant under circumstances where
no force was
used and where accordingly the plaintiff could not have
sustained any injuries.
THE EVIDENCE
7. The plaintiff testified in her case
and also called a witness, a Ms Juanita de Wet, to support her case.
The third defendant
called four witnesses - Mr van der Watt, the risk
manager of the third defendant at the Grove Mall, Mr Ncube, the
Pretoria branch
manager of the third defendant, Mr Mthalane, the
security supervisor of the Grove Mall and Mr Mukosi, a security guard
at the mall.
8. The plaintiffs evidence was that on
the 18th of October 2010, she entered the Q.Ba restaurant at 17H30
with a friend, a Ms de
Groen. After having a light meal, Ms de Groen
left at approximately 18H45. The plaintiff remained behind and drank
some wine (she
estimated that she had three glasses of wine, possibly
four, from around 17H30 until the incident).
9. She testified that she wanted to
order water but did not receive any assistance from the waiter. She
then asked to see the manager,
and complained. She was then
surrounded by five men. whom she initially thought were in the employ
of Q.Ba but was later informed
by Ms de Wet, were security guards.
One of the security guards requested that the plaintiff accompany
them, but she refused. She
then asked them for their names and
succeeded in writing at least one name clearly on the magazine she
was reading.
10. She testified that she was grabbed
by her right arm by one of the guards and pulled out from where she
was sitting. Another
guard grabbed her other arm and she was then
forcibly removed in this fashion towards the car park. She was
dragged according to
her, with her arms pulled behind her back. She
further claimed that she asked to be left alone, and stated that she
could walk
out on her own. The plaintiff also stated that the manner
in which they forcibly removed her from the restaurant was very
painful.
11. She also stated that when they
reached the area of the car park, the guards dropped her to the
ground, after which she was assisted
by Ms de Wet. Her right arm was
lame and there was bruising on it. The plaintiff accepted that she
may have been intoxicated but
she denied that she was abusive.
12. Under cross examination, she denied
that after being asked to leave the restaurant she agreed to do so,
and the security guards
merely assisted her to leave by allowing her
to hold on to them as they walked out of the restaurant.
13. Ms de Wet, a training manager of
Top CD situated in the Grove Mall, testified that on the evening of
the 18th of October 2010,
she was outside the mall close to the
entrance, waiting for her lift, when she noticed two security guards
dragging the plaintiff
out of the mall. She described each of the
guards as holding the plaintiff by her arms and dragging her.
14. The plaintiff pleaded with the
guards to let her go but they did not. She went to them and said she
would take over but at that
point the security guards simply let the
plaintiff go, causing her to fall.
15. She described what she saw as
violent and further stated that the guards were rude and blunt. She
also testified that the plaintiff
was being dragged in such a manner
that both her feet were virtually off the ground. She stated that she
did smell alcohol on the
breath of the plaintiff and saw welt marks
on the plaintiffs right arm. The plaintiff also complained about pain
in both her arms.
The witness further stated that she lodged a
written complaint with the mail's manager the next day, but heard
nothing from them
again.
16. Mr van der Watt and Mr Ncube’s
evidence was brief. Both stated that this incident was not reported
and that they only
became aware of it about four to five months after
it happened. Mr van der Watt testified that their protocol would not
allow7
male security guards to touch a woman, if this was required to
remove a female. In those instances a female security guard would
be
used. However, the impression obtained from their evidence was that
if a female patron held on to a male security guard as a
crutch or
for support, this would probably not be in conflict with security
protocol.
17. Mr Mthalane, the security
supervisor at the Grove Mall, testified that he was summoned by radio
to the Q.Ba restaurant, to assist
with the removal of a disruptive
patron. He arrived at the restaurant and together with his colleagues
Machete, Mukosi, and the
restaurant manager, they made their way to a
table where the patron was seated. He described her as being
intoxicated with her
speech impaired and her eyes bloodshot. He also
stated that she was swearing at him.
18. He spoke to her and told her that
they had been asked to remove her from the restaurant. She began to
calm down and even requested
their names which he proceeded to give
her and he even spelt his name out for her. He claimed that she began
swearing again. He
then moved the table away from her as an
indication of his seriousness and put her handbag on the table. At
this time, the plaintiff
attempted to stand up, but was unsuccessful.
In an attempt to assist her, he held out his forearm, which she took
with both hands,
and lifted herself up.
19. Mr Mthalane, Mr Mukosi and the
restaurant manager then continued to escort the plaintiff out, with
Mr Mthalane on her left and
the restaurant manager on her right. Mr
Mukosi followed, carrying her handbag and her shoes. He denied that
he or any of the guards
held the plaintiff. In fact, he stated that
it was the other way round. He further stated that she was
non-combative, offered no
resistance and it was easy to escort her
out. They seated her on a rock outside the mall entrance and offered
to arrange a lift
home for her. At that point Ms de Wet arrived and
said that she would take care of the plaintiff. Mr Mthalane stated
that they
left her safe and at no point was there any forceful
removal nor did he observe any marks on her arms.
20. Mr Mukosi, the security guard at
the mall, supported in broad terms the evidence of Mr Mthalane. He
testified that he was in
the restaurant and observed that the
plaintiff was being disruptive. He saw her rise from her seat, using
Mr Mthalane’s arm
as a support, and then observed that Mr
Mthalane and the restaurant manager escorted her out with the men on
each side of her as
they left the restaurant. He carried her handbag
and her shoes. To his knowledge, it seemed that the plaintiff agreed
to leave
the restaurant, and that no force was required. She was
assisted by Mr Mthalane and the manager in that she held onto their
arms
to assist and support her.
ANALYSIS
21.
In STELLENBOSCH FARMERS’
WINERY GROUP LTD & ANOTHER v MARTELL ET CIE & OTHERS
2003
(1) SA 11
(SCA) the Court held the following (in respect of where
there are two irreconcilable versions):
'The technique generally employed by
courts in resolving factual disputes of this nature may conveniently
be summarised as follows.
To come to a conclusion on the disputed
issues the court must make findings on (a) the credibility of the
various factual witnesses;
(b) their reliability and (c) the
probabilities, '(at 141)
Credibility
22. I found that all the witnesses
generally made good impressions. They all came across as being honest
and did not seek to exaggerate
the events of the day. All the
witnesses were open in responding to questions by the Court. However,
two observations are important.
23. Counsel for the plaintiff in
responding to a question from the Court as to why, if the plaintiff
was conducting herself peacefully
and without causing a disruption,
there was a need for Q.Ba management to summon assistance, conceded
that in all likelihood she
may have been disruptive. It is apparent
to me that there would hardly be a need to call for assistance in
dealing with a patron
who posed no harm or threat.
24. In this regard the evidence of the
plaintiff, that she asked the guard to leave her as she would walk on
her own, is supported
by the evidence of Ms de Wet, as she heard the
plaintiff pleading with the guards to let her go, without any
success. Ms de Wet
described the plaintiff as being almost forced off
the ground, a description that militates against the plaintiff
voluntarily leaving
the mall.
25. The characterisation of the
plaintiff by the defence as being willing and amenable in agreeing to
leave the restaurant and the
mall is also not supported by the
evidence of Mr Mukosi who testified that he heard the plaintiff
shouting after she had been brought
by the guards to the area of the
car park.
26. Accordingly, on this issue I must
conclude that in all probability, what occurred was that the
plaintiff was disruptive in the
Q.Ba restaurant which warranted the
intervention of the third defendant's staff. The plaintiff was
reluctant to leave the restaurant
which in turn would have required
the third defendant's staff to use force to remove her.
27. The question that must follow is
whether the force used was such that it was disproportionate and
excessive in the circumstances,
resulting in an injury to the
plaintiff and subsequent shock and trauma.
28. In this regard I must rely
considerably on the evidence of Ms de Wet, an independent witness who
made a good impression on the
Court and who came across as objective
and without bias. The following is relevant from her testimony:
(a) She described
what she saw as being violent, motivating her to intervene;
(b) She saw the
plaintiff being dragged and described her as being virtually off the
ground;
(c) The plaintiff
complained of pain in both her arms;
(d) She saw welt
marks on the plaintiff’s right arm.
29. I have no reason not to accept the
testimony of this witness and on the probabilities, I must therefore
conclude that even though
the plaintiff was probably disruptive in
the restaurant, justifying her removal, the manner in which it was
effected was unacceptable.
30. The appearance of welt marks on the
plaintiff s arm would indicate a high degree of force being used.
This was fortified by
the evidence of Ms de Wet that the plaintiff
complained of pain in both arms. In addition, if the plaintiff was
dragged and was
virtually off the ground, considerable force would
have had to be used to effect this.
31. My view is that the forced used was
excessive and disproportionate. The plaintiff s condition after she
was removed, namely
her right arm being lame with the appearance of
bruises and/or welts and pain in her other arm, evidences this
conclusion.
32. In the circumstances, I must
conclude that on the separated issues, the plaintiff has proved her
case on a balance of probabilities.
COSTS
33. Given the separation, the quantum
of the plaintiff s claim still remains in issue and the determination
of that may well impact
on the question of costs, in particular the
scale of such costs. Accordingly it may be prudent to reserve costs
on account of that.
ORDER
34.1 accordingly make the following
order:
a) The third
defendant is liable for the plaintiffs damages suffered as a result
of her being assaulted by security guards of the
third defendant who
were acting in the course and scope of their employment with the
third defendant, on the 18th of October 2010
at the Grove Mall;
b) Costs in
respect of the separated issues are reserved for future
determination.
N KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
127/2012
HEARD ON: 16 OCTOBER 2013
FOR THE PLAINTIFF: ADV R FERGUSON
INSTRUCTED BY: ADAMS & ADAMS
FOR THE DEFENDANTS: ADV M G REBELO
INSTRUCTED BY: FULLARD MAYER
MORRISON INC (correspondents J P Kruyshaar Attorneys)