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2009
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[2009] ZAGPPHC 156
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Makhanya v Vodacom Service Provider Company (Pty) Ltd (24088/09) [2009] ZAGPPHC 156; 2010 (3) SA 79 (GNP) (14 October 2009)
IN THE HIGH COURT OF
SOUTH AFRICA NORTH GAUTENG DIVISION
PRETORIA
Case number:-24088/09
Date:14-10-2009
In
the mater between:
FLOYD
MUZIMUHLE MAKHANYA Applicant
And
VODACOM
SERVICE PROVIDER COMPANY Respondent
(PTY)
LTD
JUDGMENT
1.
The applicant, Floyd Muzimuhle Makhanya, is a candidate attorney
employed by a well-known Pretoria firm of attorneys, residing
in
Mucklenuk, Pretoria.
2.
The respondent is Vodacom Service Provider Company (Pty) Ltd, a
company duly registered and incorporated in accordance with the
company laws of South Africa, with its registered office situated at
Vodacom Commercial Park, 082 Vodacom Boulevard, Vodavalley,
Midrand,
1685.
3.
The respondent is a provider of cell phone services.
4.
The applicant is an account holder of the respondent, having entered
into a service contract with the respondent.
5.
The applicant has suffered from a telephone pest's unsolicited calls
for a number of months. The said calls are made from one
or more
undisclosed telephone numbers that are indicated on the ceil phone
screen of the applicant's phone either as "private"
or
"unknown".
6.
The calls follow a pattern and are made during the small hours of the
morning. Once the call is answered, the caller hangs up,
sometimes
immediately, sometimes after his or her breathing has been heard for
a few moments. This conduct has taken place since
the end of 2008.
7.
The applicant has no idea who the telephone pest or pests might be.
Enquiries among his family and friends have confirmed, according
to
his hearsay evidence that nobody in his circle of acquaintances or
relatives is responsible for the harassment that he suffers.
8.
The applicant has requested the respondent to identify the telephone
number or numbers of the unwelcome caller or callers, but
was
informed that the respondent was prevented by law from providing the
information.
9.
He was advised to take the matter to the police, but the relevant
official responsible "...for cell phone fraud..."
could not
be reached, in spite of the fact that the applicant made several
telephonic attempts to contact him.
10.
While harassment by way of telephone calls of the nature the
applicant was subjected to may constitute a criminal offence -
it
might i.e. be regarded as a
species
of
assault, but it is not necessary to investigate this question any
further - there can be little doubt that the applicant's privacy
is
invaded by this conduct.
11.
The right to privacy against the government was defined by Justice
Brandeis in
Olmstead
v United States
[1928] USSC 133
;
277
US 438
(1928) at 478 as "...
the
right to be let alone - the most comprehensive of rights and the
right most valued by civilized men."
12.
The right to be let alone, to be free from unwanted and unwarranted
intrusions upon one's time, peace of mind and sleep can
be asserted
in at least the same measure, and is as enforceable against
individuals and corporate entities in the private sphere.
13.
In principle, the applicant is therefore entitled to protect his
privacy against the telephone pest by way of an interdict in
the same
fashion as unwarranted noise intrusion may be prohibited:
Laskey
and Another v Showzone CO and Others
2007
(2) SA 48
(C) and authorities there cited.
14.
The obvious challenge confronting the applicant is the fact that he
cannot identify the perpetrator without tracing her or his
identity
through the telephone number or numbers of the phones that the
telephone pest uses to harass the applicant.
15.
It is not in dispute on the papers that the respondent has the
information stored in its records.
16.
It is clear that the applicant requires this information to protect
his right to privacy as intended in section 50 (1) of the
Promotion
of Access to Information Act 2 of 2000 ("the Act"), as
demonstrated by Combrinck AJA in
Claase
v Information Officer South African Airways (Pty) Ltd
2007
(5) SA 469
(SCA) at 472 E-G and the authorities referred to there.
17.
The respondent does not oppose the application but has not tendered
the information, presumably because it regards itself bound,
whether
by contract or otherwise, not to disclose the relevant telephone
numbers unless ordered to do so by a competent court.
18.
In the light of the aforegoing, an order to supply the relevant
information was made in the terms as requested by the applicant.
No
costs order was made.
Signed
in Pretoria on this 12
th
October 2009.
E
Bertelsmann
Judge
of the High Court
Adv.
Corina Enslin (012) 303 7782
Instructed
by Floyd M Makhanya