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[2013] ZAECMHC 35
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Bikitsha v MEC for Department of Education, Eastern Cape and Another (1742/2010) [2013] ZAECMHC 35 (21 November 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, MTHATHA
Case No.: 1742/2010
Date Heard: 6 November
2013
Date Delivered: 21
November 2013
In the matter between:
VIOLA LINDA BIKITSHA
......................................................................................
Plaintiff
and
THE MEMBER OF THE
EXECUTIVE
COUNCIL, DEPARTMENT OF
EDUCATION,
EASTERN CAPE
......................................................................................
First
Defendant
THE PRINCIPAL:
MANGQUKWANA JSS
.........................................
Second
Defendant
JUDGMENT
EKSTEEN J:
[1] The second defendant
is the principal of the Mangqukwana Junior Secondary School (herein
referred to as “the School”)
in the district of Libode.
The plaintiff claims damages from the first and second defendants
under the
actio iniuriarum
arising from alleged insulting and
degrading statements made by the second defendant, acting in her
capacity as principal of the
School.
[2] The plaintiff is an
educator at the School and a member of the second defendant’s
staff. She and the second defendant
were at University together and
they have been close friends and colleagues for many years prior to
these events.
Background
[3] The background
leading up to the unfortunate events which give rise to the action
are not contentious. It is common cause that
during the earlier part
of February 2010 there was a persistent and repugnant smell noted in
the staffroom of the School. On at
least one occasion scholars were
called in to remove furniture in search of the possible source of the
smell which was thought
to be a dead rat, but to no avail. On a
particular day, and there is a dispute in respect of the exact date,
a meeting of the School
Governing Body (herein referred to as the
“SGB”) was held in the office of the second defendant.
There were approximately
ten persons present. The plaintiff was the
secretary of the SGB and the second defendant was the chairperson.
The plaintiff therefore
sat alongside the second defendant during the
course of the meeting as she was tasked to take the minutes of the
meeting. It was
during this meeting that the second defendant formed
the impression that the plaintiff exuded an unpleasant smell. It
would appear
that she concluded that the plaintiff was the source of
the repugnant smell which had permeated the staffroom in the
preceding
weeks. She accordingly resolved to call the plaintiff into
her office privately to raise the issue with her. This she did. Again
there is some discrepancy as to the precise timing thereof. The
plaintiff states that it occurred on the day after the SGB meeting
had been held whilst the second defendant states that it occurred on
the same day immediately after the meeting. Nothing turns
on the
dispute relating to the dates.
[4] Be that as it may, it
is the events which occurred during this private meeting in the
second defendant’s office which
gives rise to the litigation.
The Evidence
[5] The plaintiff
testified that on the day in question she was called to the office of
the second defendant. Second defendant advised
her that she had
received complaints from other members of staff that the plaintiff
was emitting a foul smell and that she had
personally also smelt it
at the SGB meeting. She said that the plaintiff smelt like a dead
dog. The plaintiff, who says that she
suffers from an impairment of
smell, enquired from the second defendant as to the source of the
smell. Upon this enquiry the second
defendant was non-committal but
suggested that her sister once had a lung infection which caused her
breath to smell. She therefore
suggested that it was possible that
the plaintiff may have a lung infection and she accordingly suggested
the plaintiff go to the
hospital and have an X-ray and a medical
examination. The plaintiff initially thanked the second defendant for
drawing it to her
attention and she later proceeded to hospital.
[6] Before proceeding to
hospital, however, she first went home to fetch her medical card.
There she encountered her daughter, Francis.
She says that she was
angry and she reprimanded Francis for not telling her that she exuded
an unpleasant smell. Francis, however,
denied that there was any
unpleasant smell about her.
[7] Plaintiff then
proceeded to the hospital. There she first saw a female doctor. When
she related her complaint to the doctor
the doctor told her not to
waste her time and declined to examine her. She was, however, not
satisfied and approached a nursing
sister in an endeavour to have a
proper examination. A male doctor was then called. He examined her
but could find nothing abnormal.
He called another female doctor, one
Dr Mpuko, to confirm his finding. She agreed and a brief report was
drawn to confirm that
nothing abnormal had been detected. Armed with
this report she returned to the School the following day and handed a
copy of the
report to the second defendant. The second defendant made
no comment.
[8] The plaintiff
accepts, if there were complaints, that the second defendant was
entitled to broach the subject with her but,
she states that she was
humiliated by the manner in which it was done. She feels that her
dignity was violated and she was hurt.
Moreover, when Francis advised
her that there was no smell about her
and
the doctors thought that she was wasting their time she was annoyed.
Second defendant has not, she says, ever apologised. In
all this time
the plaintiff had to return to work at the School and she says that
she has felt fearful each day as she does not
know whether other
teachers think that she smells. She has lost her self-
confidence and she feels
that she is not the person that she once was. Although she felt
emotionally shocked she was never incapacitated,
did not take leave
and did not seek any medical or psychological treatment to alleviate
her condition.
[9] The plaintiff is
married to a lawyer and she says she knows her constitutional rights.
She claims R500 000,00 for emotional
shock, R500 000,00 for
impairment of dignity and reputation and R500 000,00 for the
invasion of her privacy.
[10] Under
cross-examination the plaintiff confirmed that she was aware of the
smell in the staffroom shortly before the event,
but denies knowledge
of any suggestion by others that it may have emanated from her. She
confirms too that she was present at the
SGB meeting and sat next to
the second defendant. She states, however, that no one complained at
the meeting of any unpleasant
smell. The plaintiff denies that she
was treated with dignity by the second defendant and says that she
was particularly hurt to
be compared repeatedly to a dead dog.
[11] In respect of her
visit to the hospital the plaintiff says that the second defendant
instructed her to go to hospital to be
examined and to have an X-ray.
The second defendant, she says, was in a position of authority over
her and she released her from
her duties at school early and sent her
to hospital. She perceived it to be an instruction.
[12] On a specific
enquiry from the Court as to whether it was an instruction or a
suggestion the plaintiff declares that it may
have been a suggestion
rather than an instruction. In consequence, however, of the manner in
which she was spoken to she interpreted
it as an instruction. She
was,
however,
aware that the second
defendant did not have the authority to give her an instruction of
that nature.
[13] The plaintiff’s
daughter, Francis Bikitsha, testified that she was at home on the
afternoon in question with a friend,
whom she did not identify, when
her mother came home. She thinks that it was approximately three
o’clock in the afternoon
when her mother arrived but states
that she came home at the usual time after the close of the school
day. Her mother, the plaintiff,
was upset and was crying. She
confirms that she was confronted by the plaintiff who enquired why
she had not told her of the unpleasant
smell. Both she and her
friend, she says, approached the plaintiff in an endeavour to detect
a smell but could smell nothing abnormal.
She assured the plaintiff
that had there been an unpleasant smell about the plaintiff she
certainly would tell her. She had never
smelt anything unpleasant
about the plaintiff.
[14] The second defendant
then testified. She states that the SGB meeting was held in her
office which is a small office and it
lasted approximately three
hours. Soon after the meeting commenced she realised that the smell
emanated from the plaintiff and
that it was serious. So much so that
her throat became dry. After the meeting adjourned she decided that
she had to address the
issue forthwith with the plaintiff. She says
that she did not receive reports from other members of staff and she
advised the plaintiff
of her own accord that as principal and the
manager of the staff she had a duty to ensure a secure and healthy
environment. She
advised the plaintiff that she exuded a bad smell
and she should go to see a doctor. The plaintiff enquired from her
where the
smell came from and she declared that she was not sure but
that it was a terrible smell and that it is not healthy. On enquiry
as to the nature of the smell second defendant says that she advised
the plaintiff of her sister’s condition and the lung
infection
to which I have referred earlier. On this basis she advised the
plaintiff to go to hospital and be examined. She denies
in
cross-examination that she ever told the plaintiff that she smelt
like a dead dog and says that she spoke to the plaintiff in
a
dignified and professional manner in bringing a sensitive issue to
her attention.
[15] Mr
Bikitsha
,
acting on behalf of the plaintiff, put it to the second defendant
that she had in fact instructed the plaintiff to seek medical
attention, to submit to an examination, and to have an X-ray. This
the second defendant denied. She denied too that she had said
that
the plaintiff in fact had a chest infection and that she had released
the plaintiff early from her duties in order to go for
a medical
examination. She states that the plaintiff left the school at the
ordinary time after the close of the school day.
[16] It was further put
to this witness that she had in fact instructed the plaintiff to
procure a medical report for her perusal
and that the plaintiff had
done so. She confirms, in reply, that the plaintiff did indeed bring
her medical report to her but denies
that she ever instructed the
plaintiff to produce a medical report. She states that she had no
particular interest in the plaintiff’s
medical condition and
did not read the report. She further denies that she had any
intention to hurt the plaintiff and that she
did not impair the
plaintiff’s dignity. She realised that the matter was sensitive
and it is for that reason that she called
the plaintiff in privately.
[17] Finally Mrs Xulaba,
a fellow educator at the School was called on behalf of the second
defendant. Her evidence does not advance
the matter at all and it is
not necessary herein to dwell on the content thereof Suffice it to
say that this witness knew nothing
of the event.
[18] Mr
Young
,
on behalf of the defendants, argues that conduct of the second
defendant was legally justified as the second defendant was entitled
and indeed obliged, as principal of the School to address the issue
with the second defendant in the circumstances which prevailed.
This,
I think would be correct if she had received such complaints from
members of staff and indeed the plaintiff concedes that.
The same, in
my view, would apply if the second defendant on her own observations
had cause for concern. This, however, would not
confer upon her the
right to abuse the occasion and to subject the plaintiff to degrading
and humiliating treatment. On her own
admission she did not receive
reports from any members of her staff that the unpleasant smell
emanated from the plaintiff and,
on the evidence it appears her own
perception was erroneous. I shall revert to this issue below.
Relief sought
[19] The
actio
iniuriarum
grants relief for an impairment of the person, dignity
or reputation of the plaintiff which impairment is committed
wrongfully
and
animo
iniuriarum
. A plaintiff bears the
onus to allege and prove impairment of the relevant aspect of
personality relied upon. (See
Bennett v The Minister of Police
and Another
1980 (3) SA 24
(C) at 37.) I have alluded
earlier to the plaintiff’s claims for an impairment of her
emotional well-being, her dignity and
reputation and an invasion of
her privacy. I shall deal with these heads of damage separately
below.
Emotional shock
[20] In
Bester v
Commercial Union Versekeringsmaatskappy van Suid-Afrika Beperk
1973 (1) SA 769
(A) it was held that the brain and nervous system are
as much part of the physical body as an arm or a leg. As a result a
physical
injury is not absolutely necessary to found liability. (See
Bester
supra
at p. 779.) A plaintiff must,
however, prove, not mere nervous shock or trauma, but that he or she
had sustained a detectable psychiatric
injury. (See
Road
Accident Fund v Sauls
2002 (2) SA 55
(SCA) at 61I. See also
Barnard v Santam Beperk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA) at 216
(SCA).) This would ordinarily require expert evidence.
[21] In the present case
the plaintiff has testified as to her emotions. She found it very
difficult to go back to the School, and,
probably as a result of her
impairment of smell, was always fearful that others might perceive
her to emit a foul smell. She says
she lost her self-confidence and
that the trauma and emotion has left her feeling that she is not the
person that she used to be.
[22] I do not think that
this establishes emotional shock as is required to be proved. I have
noted earlier she was not incapacitated.
She did not take leave. She
did not seek either medical or psychological treatment. No medical
evidence has been tendered in support
of this claim. I do not think
that such an injury has been proved. Indeed Mr
Bikitsha
,
when I raised this difficulty with him, indicated that he would not
persist in the claim for emotional shock. In the circumstances
no
more needs to be said in this regard.
Impairment of
dignity
[23] There is no evidence
of any publication by the second defendant or anyone else of the
remarks which were made in the private
meeting between herself and
the plaintiff. Mr
Bikitsha
, correctly in my view, did
not seek to rely on any impairment of reputation despite the
allegation in the particulars of claim.
In issue is accordingly the
impairment of dignity.
[24] In
Rex v
Umfaan
1908 TS 62
at p. 66, Innes CJ, referred to the three
essentials of
inuira
as follows:
‘
The act
complained of must be wrongful; it must be intentional; it must
violate one or other of those real rights, those rights
in
rem
,
related to personality, which every man is entitled to enjoy. Chief
Justice DE VILLIERS, in
Laws
of Injuries
,
says (p. 27):
“
With
these ingredients to hand it will be found that there are three
essential requisites to establish an action of injury. They
are as
follows- (1) an intention on the part of the offender to produce the
effect of his act; (2) an overt act which the person
doing it is not
legally competent to do; and which at the same time is (3) an
aggression upon the right of another, by which aggression
the other
is aggrieved and which constitutes an impairment of the person,
dignity or reputation of the other.”
Earlier he says, “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.”’
[25] It is necessary
first to make a factual finding as to what was in fact said to the
plaintiff. It is not in dispute that the
second defendant told the
plaintiff that she emitted a foul smell. The plaintiff herself is
unable to comment in this regard not
only because it related to her
own bodily odour but because she has an impaired smell. The balance
of the evidence, however, leads
me to conclude that the statement by
the second defendant was factually inaccurate. Both the plaintiff and
her daughter, Francis
Bikitsha testified as to the events which
occurred at the plaintiff’s home that afternoon. Francis
attempted to detect any
unsavoury odour on the body of the plaintiff,
but could smell nothing unusual. The evidence of Francis was not
challenged in cross-examination.
The plaintiff testified that the
doctors at the hospital thought that she was ridiculous and they
could detect no unpleasant smell
on the plaintiff. Whilst the doctors
were not called to testify the plaintiff’s evidence in respect
of that report stands
uncontested.
[26] The real sting,
however, of which the plaintiff complains, is the manner in which it
was communicated to her and the fact that
she was compared to a dead
dog. This, is of course in dispute. It was not initially alleged in
the particulars of the plaintiff’s
claim that this statement
was made. In February 2012, however, the plaintiff filed a notice of
intention to amend to introduce
the allegation that the second
defendant had “alleged that the smell emanating from the
plaintiff’s body was like that
of a dead dog”. It was the
only amendment to the particulars of claim. It was duly affected and
in January 2013 the defendant
responded by filing an amended plea
specifically to address the amendment to the particulars of the
plaintiff’s claim. The
allegation that the second defendant had
uttered these words was not placed in dispute. By virtue of the
provisions of Rule 22(3)
of the Uniform Rules of Court it is
accordingly deemed to be admitted. It was not seriously challenged in
cross-examination of
the plaintiff either. In these circumstances the
vehement denial of the second defendant must be rejected.
Wrongfulness
[27] This brings me to
the question of wrongfulness. In
Delange v Costa
1989
(2) SA 857
(A) at 862 Smalberger JA said:
‘
Because
proof that the subjective feelings of an individual have been
wounded, and his
dignitas
thereby impaired, is necessary before an action for
injuria
can succeed, the concept of
dignitas
is a subjective one. But before that stage is reached it is necessary
to establish that there was a wrongful act ….
In determining whether or not the act
complained of is wrongful the Court applies the criterion of
reasonableness – the “algemene
redelikheidsmaatstaf”….
This is an objective test. It requires the conduct complained of to
be tested against the
prevailing norms of society (ie the current
values and thinking of the community) in order to determine whether
such conduct can
be classified as wrongful. To address the words to
another which might wound his self-esteem but which are not,
objectively determined
insulting (and therefore wrongful) cannot give
rise to an action for
injuria
.’
[28] The “notional
understanding and reaction of a person of ordinary intelligence and
sensibilities” is therefore of
paramount importance. If the
plaintiff proves that she felt insulted in circumstances where the
reasonable person would also have
felt insulted, a presumption of
wrongfulness arises which the defendant may rebut by proving the
existence of a ground of justification
for his conduct. (See
Neethling, Potgieter and Visser:
Law of Delict
(5
th
ed) p. 322 and the authorities there referred to.)
[29] As stated earlier
the defendants contend that the conduct of the second defendant was
justified as she had an obligation arising
from the position which
she occupied and the legislation governing it to act. Her first
difficulty in this instance is that, on
the weight of the evidence,
her perception was clearly wrong. The problem in the present matter,
however, is not so much that the
second defendant broached the
subject of the unpleasant odour with the plaintiff, but the manner in
which it was done and the terminology
which was utilised. I think
that the comparison of a human being to the stench of decaying animal
carcasses is indeed humiliating
and degrading and any self respecting
person of ordinary intelligence and sensibility would have felt
insulted thereby. Even if
the second defendant was justified in
raising the issue, and on the evidence I do not think that she was,
she was not justified
in doing so in the manner in which she did.
Intention
[30]
Animus
iniuriandi
, or intention, which is an essential element of the
delict, is implied from acts alleged which constitutes an
infringement of an
absolute right of personality. Like wrongfulness,
it is presumed from the alleged conduct of the defendant (compare in
this regard
Brenner v Botha
1956 (3) SA 257
(T) at
261A-B and the authorities referred to therein).
[31] In these
circumstances I think that the conduct of the second defendant does
constitute an intentional aggression upon the
plaintiff’s right
to dignity. Indeed, Mr
Young
, correctly in my view,
conceded that in the event that I find that second respondent did
compare the plaintiff to a dead dog, then
animus iniuriandi
is
to be inferred. The plaintiff’s claim in respect of an
impairment of her dignity must accordingly, in my view, succeed.
Invasion of privacy
[32] Mr
Bikitsha
argues that the plaintiff’s privacy was invaded by having been
subjected to a medical examination and by the second defendant’s
insistence to receive a medical report. These issues are in dispute.
[33] In respect of the
former Mr
Bikitsha
contends that I should find that the
medical examination occurred as a consequence of an instruction given
by the second defendant
in a position of authority which the
plaintiff was obliged to comply with. The examination itself which
resulted directly from
the instruction, constitutes an invasion of
her privacy, or so the argument goes. He contends in support of this
argument that
the plaintiff was relieved of her duties at school and
sent away early on the day in question to attend to a medical
examination.
This, it is argued, is indicative thereof that the
plaintiff had no choice but to subject herself to the examination. I
do not
think that the evidence permits of such factual findings.
Firstly, the plaintiff conceded that it may well be that the second
defendant
was merely making a suggestion when she referred the
plaintiff to medical examination. Secondly, she acknowledged that she
was
aware thereof that the second defendant had no authority to give
instructions in respect of medical treatment. Thirdly, the evidence
of Francis Bikitsha is destructive of the plaintiff’s version
that she was relieved early on the day in question. In these
circumstances, the evidence of the second defendant appears to me
more probable and must be accepted on this issue.
[34] The effect of the
factual finding above is that the plaintiff voluntarily took up the
advice of the second defendant and sought
a medical examination. This
is borne out by her own evidence that when the first doctor declined
to examine her she persisted and
approached a nursing sister to
summon a doctor so that she might be examined.
[35] The second argument
is equally problematic. It is common cause that the plaintiff did
return with a medical report which she
handed to the second
defendant. Mr
Bikitsha
argues that the second
defendant’s perusal thereof constituted an invasion of the
plaintiff’s privacy. I think, however,
on the evidence of both
the plaintiff and the second defendant the second defendant did not
peruse the medical report. Mr
Bikitsha
contends,
nevertheless, that the second defendant instructed the plaintiff to
bring a medical report. There could be no other reason
for her to
deliver it, so the argument goes. I do not think that the argument
can be sustained. The plaintiff did not in her evidence
in chief
suggest that she was instructed to bring a medical report to the
second defendant. It only arose in re-examination and
appears to me
to be an afterthought to counter the concession made by the plaintiff
relating to the suggested medical examination.
Moreover, I think that
there may be numerous reasons for the plaintiff to have done so. One
that commends itself is that the plaintiff,
who on her own evidence
was angered at the realisation that there was in fact no unpleasant
odour emanating from her body and that
she had been wrongly singled
out, sought to prove her point.
[36] In all the
circumstances I do not think that the plaintiff has established a
case founded on the invasion of her privacy.
Quantum of damages
[37] The minute of the
pre-trial conference records that the parties agreed that the merits
and quantum should be separated and
that the trial should, at this
stage, be directed only at the issue of liability. At the hearing
neither party sought an order
for the separation of issues. The
matter only arose during argument, after both sides had closed their
cases. I raised concern
that it did not appear to me that this was a
matter in which the issues could conveniently be separated. Mr
Bikitsha
intimated that the plaintiff had no other
evidence which he could tender in respect of the quantum of damages
other than that which
had already been tendered. On reflection he
accordingly requested that I decide the quantum of the plaintiff’s
damages on
the evidence which has been presented. Mr
Young
did likewise.
[38] I have indicated
earlier that the plaintiff seeks R500 000,00 in respect of the
impairment of her dignity. In
Brenner v Botha
supra
it was recognised that the task of assessing, in terms of money, the
compensation for a loss which is not pecuniary is obviously
difficult, and the difficulty is increased by the fact that damages
are to some extent punitive in cases such as this. It is compensation
for wounded feelings. I take into consideration the fact that the
plaintiff, as an educator, is a professional person. She is 54
years
of age and a married woman. The insults to which she was subjected
were unprovoked and, as it turns out, unfounded. These
are
aggravating features.
[39] On the other hand,
there was no publicity given to any of these statements and the
extent to which a person’s feelings
are hurt is often
dependent, in some measure, on the degree of publicity. (Compare
Brenner v Botha
supra
at p. 262C-D.) In
Brenner’s
case, a plaintiff who had been
subjected to public abuse was awarded compensation of £25
(R50). I think that the facts of
Brenner’s
case
may serve as a guide, to the extent that previous decisions can, of
the kind of damages which should ordinarily be awarded
for this kind
of infringement.
[40] Previous decisions
can, of course, only provide limited guidance as each case must be
decided on its own peculiar facts. I
am mindful thereof that the
facts of the present case are not on all four with Brenner’s
case. I have been referred too to
NM and Others v Smith and
Others
[2007] ZACC 6
;
2007 (5) SA 250
(CC). In the
NM
case the
names of three woman had been published in a book in which their HIV
status was revealed to the world at large. They were
the plaintiffs
and they were, in the final appeal, awarded R35 000,00 each as
damages. I think that the
NM
case, by virtue of the
extensive publication of the information, concerned a far more
serious violation of dignity than that to
which the plaintiff herein
has been subjected. Moreover, the
NM
case concerned
both an impairment of dignity and an invasion of privacy.
[41] I am mindful in
comparing
Brenner’s
case, which was decided in
1956, of the ever changing
mores
of our society and more
particularly of the current constitutional dispensation in which
human dignity is a foundational cornerstone.
In seeking guidance from
this decision, and other previous decisions I am acutely conscious of
the impact which the ravages of
inflation have had upon the value of
money in the interceding years. Notwithstanding all these
considerations I am constrained
to recognise that the seriousness of
the infringement has been grossly overstated. I consider that an
award of R20 000,00 would
constitute fair compensation.
[42] In the result the
first and second defendants are ordered, jointly and severally the
one paying the other to be absolved, to
pay to the plaintiff:
1. The amount of R20
000,00.
2. Interest on the said
amount calculated at the legal rate from a date fourteen days after
judgment to the date of payment.
3. Costs of suit, on the
appropriate Magistrates’ Court scale.
4. Interest on the
plaintiff’s taxed costs calculated at the legal rate from a
date fourteen days after judgment to the date
of payment.
J W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For Plaintiff:
Mr
Bikitsha
on behalf of Bikitsha & Associates, Mthatha
For Defendant:
Adv
D T
Young
on behalf of State Attorney, Mthatha