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[2011] ZAFSHC 82
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Lengau v Mangaung Sun (Pty) Ltd t/a Windmill Casino and Others (1508/2008) [2011] ZAFSHC 82 (9 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1508/2008
In
the matter between:
TSELENG
THERESIA LENGAU
…..............................................
Plaintiff
and
MANGAUNG SUN (PTY)
LTD t/a
WINDMILL CASINO
….......................................................
1
st
Defendant
AARON MONE
…..............................................................
2
nd
Defendant
RISKCURE CLOSE
CORPORATION
…............................
3
rd
Defendant
HEARD
ON:
1, 2, & 4 MARCH 2011
_____________________________________________________
DELIVERED ON:
9
JUNE 2011
KUBUSHI, AJ
INTRODUCTION
[1] This is an action
based on
injuria
. The plaintiff, a duly admitted and
practising attorney and a patron of Windmill Casino, is claiming
damages from the first and
second defendants for alleged wrongful and
intentional accusation by the second defendant of stealing a cell
phone. The factual
situation is that, on or about 30 July 2007 and at
Mangaung Sun trading as Windmill Casino (the first defendant in this
matter),
the second defendant acting as a security supervisor and
within the course and scope of his employment with first defendant,
accused
the plaintiff of having stolen a cell phone. This conduct of
the second defendant according to the plaintiff infringed upon her
dignity and caused her to suffer damages in the amount of R5 000
000.00. The plaintiff held first defendant vicariously liable
for the
conduct of second defendant.
[2] The defendants denied
the allegations of the plaintiff and pleaded that second defendant
acting under a reasonable belief that
the plaintiff had picked up a
cell phone belonging to one of the patrons of the casino, requested
plaintiff to accompany him to
the interview room within the casino.
The plaintiff, according to the second defendant voluntarily
accompanied him to the interview
room where she was questioned about
the lost cell phone. The defendants denied further that at no stage
was the plaintiff searched
by the second defendant or by anybody
else. And that the words uttered by the second defendant if at all,
were not intended to
impair the dignity of the plaintiff.
[3] The first defendant
had also pleaded specifically that second defendant had at all
material times acted in his capacity as a
security officer in the
employ of RiskCure Close Corporation a company employed by the first
defendant to assist with security
at the casino, and had as a result
denied vicarious liability. On the basis of this plea first defendant
applied for RiskCure Close
Corporation to be joined as a party to the
proceedings. This defence was however withdrawn by the first
defendant and required
no further consideration by this court.
EVIDENCE
[4] The evidence of the
witnesses for both parties differs on matters of detail but the
following facts are either common cause
or not disputed. The second
defendant, accompanied by Mr Thulo, approached the plaintiff, who was
with a certain Ms Mopeli, and
requested her to accompany him to show
her something. They took her through the casino to an office, which
second defendant referred
to as the interview room. In the interview
room they found a certain lady whose name was Ms Phokojoe. In the
interview room there
were cameras and monitor screens that were
projecting the image on the gaming floor. There in the interview room
the plaintiff
was questioned about the lost cell phone. She was also
shown a video footage which showed her picking up something from the
floor
at the area where the cell phone in question was alleged to be
lost.
[5] What happened inside
the interview room during the interview and outside the interview
room after the interview is what is in
dispute. The plaintiff
testified that she was accused of having stolen a cell phone by the
second defendant in the interview room
and on the gaming floor after
the interview which allegations were denied by the defendants. The
plaintiff called Ms Mopeli, an
acquaintance of hers whom she had met
at the casino, as a witness. The second defendant testified in the
defence of the defendants
and called two witnesses, namely Ms
Phokojoe the monitoring officer who was manning the interview room
that night and Mr Thulo
the security officer who was present at all
material times.
[6] At the beginning of
the plaintiff’s cross examination, a video footage was played
to the Court. The footage was in two
parts, the first part depicted
what happened on the gaming floor before plaintiff was taken to the
interview room and it had no
sound track. The second part had a sound
track and depicted what happened in the interview room. A transcript
of what was said
in the interview room was also provided to the
court.
THE ISSUE IN
QUESTION
[7] The issue to be
decided by this court is whether or not the conduct alleged in the
summons amounted to degrading conduct and
if so, whether or not the
plaintiff’s dignity was impaired by such conduct.
THE RELEVANT LAW
[8] The law relating to
the delict of
injuria
is well established and recorded in
numerous authorities.
Injuria
was defined in the early case of
R v Umfaan
1908 TS 62
66 as follows:
“
an
iniuria
is a wrongful act designedly done in contempt of another, which
infringes his dignity, his person and his reputation”.
The three essential
elements required to establish
injuria
were enunciated in the
leading case of
De Lange v Costa
1989 (2) SA 857
(A)
as:
i) an intention on the
part of the offender to produce the effect of his or her act (
animus
injuriandi
);
ii) an overt act which
the person doing it is not legally competent to do (wrongful act) and
which at the same time is
iii) an aggression upon
the right of another, by which aggression the other is aggrieved and
which constitutes an impairment of
the person’s dignity or
reputation of the other. See also the
R v Umfaan
-
case
above.
[9] In an unreported case
of the Constitutional Court
Le Roux and Others v Dey and Others
CCT 45/10
[2011] ZACC 4
(decided on 8 March 2011), confirming the
decision taken in
De Lange v Costa
above the court
observed in the minority decision of Froneman J and Cameron J that
what the common law requires for a dignity claim
to succeed are three
elements: a deliberately inflicted, wrongful act, that impairs the
plaintiff’s dignity.
WRONGFUL ACT
[10] The Court in the
De
Lange v Costa
-case above decided that in an action for
injuria
the enquiry should commence with whether there has
been a wrongful overt act or not. Unless a wrongful act is
established intention
becomes irrelevant, as does the question
whether, subjectively, the plaintiff’s dignity was impaired.
[11] A plaintiff, in a
case of
injuria
, bears the onus of proving the factual
element, which, once established, gives rise to an inference of
unlawfulness. In determining
whether or not an act complained of is
wrongful the court applies the criterion of reasonableness. This is
an objective test which
requires the conduct complained of to be
tested against the prevailing norms of society in order to determine
whether such conduct
can be classified as wrongful. This approach was
confirmed in the majority judgment written by Brand AJ in the
Le
Roux and Others v Dey and Others
-case above, where the court
held that to satisfy the objective element, our law requires that a
reasonable person would feel insulted
by the same conduct. In
Jackson
v SA National Institute for Crime Prevention & Rehabilitation of
Offenders
1976 (3) SA 1
(A) at 10G – H (13F) the Court
described the objective test as:
“…
an
objective standard which for example could be constituted by the
notional understanding and reaction of a person of ordinary
intelligence and sensibilities”.
See also
De Lange v
Costa
above.
[11] If a plaintiff
proves that he or she feels insulted in circumstances where a
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
or her conduct. If he
or she does not succeed in doing so, wrongfulness is certain. See
Neethling, Potgieter and Visser in
The Law of Delict
, 5
th
ed at p322.
APPLICATION OF THE
LAW TO THE FACTS
[12] The plaintiff’s
claim as
per
her summons, is based on her being accused of
stealing a cell phone in the presence of other patrons of the Casino
and by being
submitted to a search of her clothing for the alleged
stolen cell phone. The Court in
Foodworld Stores And Others v
Allie
[2002] 3 All SA 200
(C) at 209 c – f and 210 d
stated that it is necessary to set forth, in the relevant pleadings,
the words, conduct or behaviour
complained of. In addition
substantially the same words as are pleaded must be proved. In
casu
the plaintiff had to prove that she was accused of stealing a
cell phone and that she was submitted to a search of her clothing.
[13] The evidence before
this court does not indicate that the plaintiff was submitted to a
search of her clothing. The plaintiff
herself admitted in her reply
to the request for further particulars and during cross examination
that she was not submitted to
such a search. This court is therefore
not going to consider this point.
[14] As already stated in
paragraph 5 above, the plaintiff relied, in her evidence, on two
incidents where the second defendant
accused her of stealing the cell
phone. According to the plaintiff, the first incidence happened in
the interview room. In my perspective,
based on the evidence of what
happened in the interview room, the plaintiff had come nowhere near
making out a case for
iniuria
based on an accusation that she
had stolen a cell phone. On the contrary she was clearly, in my view,
not being accused but was
being given an opportunity to tender an
explanation on what she had picked up from the floor. The video
footage and the transcript
provided vital evidence that showed that
the plaintiff was on several occasion told that she was not being
accused of stealing
but was being asked to explain what she picked up
from the floor. Her explanation that she did not take the cell phone
was accepted
and that is why she was allowed to go and no criminal
charges were preferred against her.
[15] In my view, in the
circumstances sketched out above a reasonable person would not have
felt insulted. The second respondent,
as a security supervisor, had
reasonable grounds for believing that the plaintiff had picked up
something from the floor as depicted
in the cameras in the interview
room. He was in charge of and responsible for security in the casino
and would have been expected
by any reasonable person to have acted
as such. What happened in the interview room is consistent with the
kind of investigation
one would expect to be conducted to determine
whether the plaintiff in fact had picked up the cell phone or not. My
finding is
that this conduct of the second defendant does not amount
to an unlawful act constituting an
injuria
.
[16] The second incident
happened on the gaming floor after the interview. The court in this
instance is faced with two opposing
versions of what happened.
According to the plaintiff, when she came out of the interview room
she was confronted by a group of
patrons who were curious to know
what was happening. Amongst these patrons was Ms Mopeli. She
testified that she waited for about
30 minutes outside the interview
room for the second defendant to come and report to her, as promised,
what the outcome of the
investigation was. When none was forthcoming
she requested Mr Thulo to call him. When the second defendant came to
the gaming floor,
he accused her of having stolen the cell phone and
even demonstrated to her how she picked up the cell phone from the
floor. He
accused her and demonstrated as such in the presence of the
horde of on lookers and in particular Ms Mopeli.
[17] Second defendant
denied having accused, nor demonstrated as alleged by the plaintiff.
According to him he could not have promised
to provide the plaintiff
with the outcome of the investigation so soon after the incident. He
confirmed that he was called by Mr
Thulo to the gaming floor and that
he was then confronted by the plaintiff who informed him that she
will not leave the casino
until she had been told the outcome of the
investigation. He denied having spoken to Ms Mopeli during that time.
His evidence was
corroborated by that of Mr Thulo.
[18]
The court in
Stellenbosch Farmers’ Winery Group &
Another v Martell Et Cie And Others
2003(1) SA 11 (SCA) case
laid down the technique generally employed by a court in resolving
factual disputes where there are two
irreconcilable versions before
it. To come to a conclusion on disputed issues a court must make a
finding on
i) the credibility of the
factual witnesses,
ii) their reliability,
and
iii) the probabilities.
[19] This court found the
evidence of the plaintiff to be unsatisfactory in that her evidence
and that of her witness, Ms Mopeli,
contradicted each other on
material aspects. Both the plaintiff and Ms Mopeli testified that
they were at all material times in
the presence of each other and
close enough to can see and hear what the other was doing and saying.
However, their versions of
how the events in the gaming room unfolded
are different.
[20] The plaintiff
testified that she waited for a long time for the second defendant to
come to report to her, she estimated the
time at about 30 minutes she
even had to send Mr Thulo to call him. On the other hand Ms Mopeli
testified that the second defendant
and Mr Thulo came to the gaming
floor following each other immediately after the plaintiff had been
in the gaming room she estimated
the time as being five minutes. She
also testified that she did not see the plaintiff send Mr Thulo to
call the second defendant.
Ms Mopeli testified that she is the one
who talked to the second defendant immediately he appeared, asking
him why he has not called
her. The plaintiff testified that she is
the one who was talking to the second defendant at all times and is
adamant that Ms Mopeli
did not speak to the second defendant, which
fact is also confirmed by the second defendant and Mr Thulo.
[21] Though I would
regard the plaintiff as a reliable witness but not so her witness Ms
Mopeli. She seemed to have a selective
memory. During cross
examination when the contradictions between herself and the plaintiff
were put to her, she would have a lapse
of memory regarding those
particular incidents. For example she could not remember whether or
not the plaintiff and the second
defendant talked about the outcome
of the investigation nor remembered whether they spoke about what
happened in the toilet after
the phone went missing.
[22] Both the second
defendant and his witness, Mr Thulo, were in my view, reliable
witnesses. They were steadfast in their narration
of what happened in
the gaming floor and Mr Thulo was able to corroborate every aspect of
the story of the second defendant. There
were contradictions in their
evidence, which to me were not material. It was alleged by the
plaintiff’s legal representative
that one could safely assume
that there was a measure of loyalty between the second defendant and
Mr Thulo. I do not agree. The
second defendant and Mr Thulo were not
friends but knew each other because they worked at the same place. At
the time of testifying,
Mr Thulo had already left the employment of
the first defendant for a year and was working for a different
company, namely, FG
Security at Black Mountain Hotel. I therefore
cannot see how he could have been loyal to the second defendant.
[23] Between the two
versions, I find that of the second defendant to be reasonably
probably true. Firstly, I find it strange that
the second defendant
would ask the plaintiff to wait for a response to the out come of the
investigation. The plaintiff was asked
to provide her cell phone
number, which she did, and the normal procedure would have been for
second defendant to phone her and
inform her of the outcome of the
investigation at a later date. Secondly, there seem to be no logic in
the second defendant accusing
the plaintiff of having stolen the cell
phone when the plaintiff was just asking about the outcome of the
investigation.
[24] Another factor is
that, if the second defendant did not want to tell this court the
truth why would he corroborate the plaintiff’s
story. His
evidence confirms that of the plaintiff in that Mr Thulo was sent by
the plaintiff to call him, which is denied by her
own witness, and
that the time that had lapsed before he came to the gaming room was
about 30 minutes. He also testified, as the
plaintiff did, that the
plaintiff threatened to shout from the top of the table. As regards
the incident on the gaming floor, I
find that the plaintiff failed to
establish a factual basis on which an inference could be made that
the second defendant did accuse
her of stealing a cell phone.
[25] I conclude therefore
that plaintiff has failed on a balance of probabilities to prove an
essential element of the
injuria
, namely, the wrongful act.
And where the plaintiff has failed to prove that there was any
wrongful act the issue of whether there
was
animus injuriandi
on the part of the defendant and whether the plaintiff's dignity has
been impaired becomes irrelevant.
[26] In the circumstances
the Plaintiff's claim is dismissed with costs.
________________
E.M. KUBUSHI, AJ
On behalf of plaintiff:
Adv. P.J. Loubser
Instructed by:
Lengau Attorneys
BLOEMFONTEIN
On behalf of defendants:
Adv. L. Le R. Pohl
Instructed by:
Honey Attorneys
BLOEMFONTEIN
EMK/sp