K.G v A.G and Another (270/2006) [2009] ZAKZPHC 49 (20 August 2009)

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[2009] ZAKZPHC 49
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K.G v A.G and Another (270/2006) [2009] ZAKZPHC 49 (20 August 2009)

IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH
AFRICA
CASE
NO. 270/2006 PIETERMARITZBURG
DATE
TYPED: 01 SEPTEMBER 2009
In
the matter between:
K
G
and
A
G
AND
J
GREADIE
BEFORE
THE
HONOURABLE MR JUSTICE HOLLIS A J
HEARD
AT PIETERMARITZBURG:
JUDGMENT
DELIVERED ON 20 AUGUST 2009
HOLLIS
A
J
The
plaintiff' sued the second defendant for general damages amounting to
R200 000,00 arising out of firstly contumelia and loss
of consortium
in consequence of an adulterous relationship between her former
husband (hereinafter called
"the
first defendant")
and
the second defendant, and secondly, arising out of an alleged
enticement of the first defendant by the second defendant to leave

the plaintiff.
The
plaintiff was granted a decree of divorce in September 2008, so the
relief in this trial is limited to the relief sought against
the
second defendant. On-4 October 2006 Mr Justice Hugo granted default
judgment against the second defendant for payment of R75
000,00 in
consequence of the second defendant having failed to comply with a
notice of bar which had been served on her attorneys
calling upon her
to deliver a plea. Such judgment was later rescinded, hence the
necessity for this trial.
During
the trial it became common cause that the relationship between the
first and second defendants commenced towards the end
of December
2001. In April 2002 after a trip which the first and second
defendants had surreptitiously taken to Cape Town over
the Easter
weekend, the second defendant became aware that the first defendant
was a married man. Notwithstanding this,, her relationship
with the
first defendant only came to.an end about four months ago. At the
present time the second defendant has returned to
her husband in an
effort to reconcile her marriage!. This relationship which the first
and second defendants enjoyed was in flagrant
disregard for the
feelings of the plaintiff, who at all times was intent on saving her
marriage. 1 was impressed w;i:h the plaintiff
when she gave her
evidence and Miss Jassa;! who appeared on behalf of the second
defendant, correctly conceded in argument that
the plaintiff had been
a good witness.
The
plaintiff testified that prior to the commencement of the first and
second defendant's relationship she had a good marriage.
She enjoyed
the support of the first defendant and they were inseparable, even
going on shopping trips together to buy groceries.
Two young boys had
been born of the marriage who. at that, time would have been about
six and eight years of age respectively.
She
1
testified
that the first defendant was the owner of a sports bar in the city.
It was here that the first defendant met the second
defendant who was
a frequent, visitor thereat. The second defendant was a sales
representative who sold detergents. Initially the
relationship
between the first and second defendants was business related, but it
soon developed into a personal one, so much so
that the second
defendant testified that they commenced having sexual intercourse
with one another from December 2001 A child was
born, of the
adulterous relationship between the parties in January 2003. The
plaintiff testified that on several occasions the
second defendant
telephoned her and suggested that she should leave ths first
defendant as she was in a relationship with him.
On one of these
occasions in December 2003, the second defendant humiliated the
plaintiff by advising her that she had slept on
her bed sit the
matrimonial home.
The
plaintiff hired a private investigator during or about August 2004 to
assist her. In consequence thereof, she arrived at the
second
defendant's place of work. The second defendant accused her of
trespass, said that the first defendant was not there, although
the
plaintiff on searching the premises found the first defendant hiding
in the shower. The second defendant reiterated to the
plaintiff that
she was in love with the first defendant and had had a child with
him. An altercation occurred between the plaintiff
and the second
defendant, resulting in the plaintiff sustaining injuries in the form
of scratches to her nose and face.
On
another occasion the plaintiff testified that she was seated in her
vehicle with her young children when the second defendant
put her
head through the passenger window and told her children that they now
had a sister. The plaintiff testified that as a result
of this
incident at least one of her children had been traumatised. Indeed,
the plaintiff must have been humiliated herself.
The
plaintiffs evidence was corroborated in a limited e;rtent by one
Ricky Pillay who testified that he was an employee of th«

sports bar owned by the first defendant, that the second defendant
was a frequent visitor thereat and even brought their love child

along oh one occasion. He got the impression that the second
defendant was chasing the first defendant. It became common cause

that after the altercation which occurred between the plaintiff and
the second defendant, the second defendant was advised not
i:c return
to the sports bar. Notwithstanding this warning, the second defendant
did return a few months later.
The
first defendant somewhat surprisingly also testified on behalf of the
plaintiff, Although some of his evidence corroborated
the evidence of
the plaintiff insofar as their marriage was a good marriage prior to
the commencement of the relationship with
the second defendant was
concerned, the first defendant was intent on trying to show that it
was not he who had done the chasing,
but the second defendant was the
person who had actively enticed h;rn into the relationship. He was an
unimpressive witness and
was unable to explain why he had instructed
his attorneys in regard to the pleadings in the divorce action on an
allegation which
was contained in his plea regarding the cause of the
breakdown of the marriage which was false. The allegation related to
an alleged
affair between the plaintiff and the first defendant's
brother.
The
second defendant also testified and, as one might have expected, her
evidence was that it was the first defendant who did the
chasing by
buying presents for her, sending cards to her and paying her
particular attention. The second defendant corroborated
much of what
the plaintiff testified to in regard to the'happening of the
incidents but disputed parts of the plaintiffs evidence
for instance
that the second defendant had telephoned her in an attempt to
persuade the plaintiff to leave the first defendant.
Although I
accept that the second defendant now realises the error of her ways,
insofar as her evidence conflicts with the evidence
of the plaintiff,
I prefer to accept the veracity of the plaintiffs evidence.
It
must be mentioned that the second defendant associated herself with
the first defendant's stance that they had never been away
together
over the Easter weekend to Cape Town, and iied to the plaintiffs
family and her own family on this aspect only relenting
and
confessing to such trip some months later. An aggravating feature in
this matter is that the second.defendant continued with
the
relationship with the first defendant for many years, even though
from about 2005 it appears to have been an on and off relationship
as
by that time the second defendant had moved from Pietermaritzburg.
She continued with this 'relationship notwithstanding a family

meeting which was held between the families of all parties, after the
first and second defendants had returned from Cape Town,
and even
after one of the incidents which she had had with the plaintiff when
the plaintiff warned her trv.ul she would have trouble
if she took
"Anand
away".
She
chose to ignore the advice which must have been given to her at the
family meeting as early as April 2002 and preserved the
lie about the
weefcond in Cape Town for some time thereafter. Even when she left
Pietermaritzburg and lived in Johannesburg, she
provided
accommodation for the first defendant at her sister's home.
Having
regard to the evidence, I am satisfied that the plaintiff has
discharged the onus of proving oh a balance of probabilities
not only
her cause of action based upon contumelia and loss of consortium but
also her cause of action based upon enticement.
The
question of how much compensation should be awarded to the plaintiff
is always something which is difficult to assess as each
case must be
determined on its own facts.
When
the matter came before Mr Justice Hugo he awarded an amount of R75
000,00 and referred to the fact that what the second defendant
had
done was a serious infringement of the plaintiffs rights, more
particularly, that it had been conducted openly and had involved

others. I agree with Mr Justice Hugo. Moreover the adulterous
relationship continued over a long period of firm?. Mr Mcintosh on

behalf of the plaintiff submitted that an award of R100 000,00 should
be made, having regard to the fact that subsequent to the
application
for rescission the second defendant had openly continued the
relationship with the first defendant.
In
my
view, any increase in the amount previously awarded might be
considered punitive in nature. I do not believe that the award should

be increased and I consider that a fair award of dunnages taken as a
lump sum.is an amount of R75 000,00.
In
conclusion therefore, l grant an order in the following terms:
1.
The second defendant is directed to pay the plaintiff R75 000(00
together with interest thereon at 15,5% per annum from date
of
service of the summons until date of payment.
APPEARANCES:
FOR
THE APPELLANT
Adv.
A
P
MclNTOSH
FOR
THE RESPONDENT
MISS
JASSAT
INTERPRETER
NOT
REQUIRED
DRAFT
REPORTABLE/
NOT REPORTABLE
IN
THE KWAZULU-NATAL HIGH COURT. PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 270/2006 PIETERMARITZBURG
DATE
TYPED: 01 SEPTEMBER 2009
In
the matter between:
K
"G"
and
A"G"
AND
J
GREADIE
BEFORE
THE
HONOURABLE MR JUSTICE HOLLIS AJ
HEARD
AT PIETERMARITZBURG: JUDGMENT DELIVERED ON 20 AUGUST 2009
TRANSCRIBER
MRS
M WEBSTER
CONTRACTOR
Sneller
Recordings (Pty) Ltd • P O Box 1193 • Pietennaritzburg ■ 3200
Tel 033 3425256 ■ Fax 033 3941190
JUDGMENT
20.08.2009
HOLLIS
AJ
The plaintiff has sued the second defendant for general damages
amount to R200 000, firstly, in respect of contumelious arising
from
an adulterous relationship which existed between her former husband,
hereinafter called the first defendant and the second
defendant, and
secondly, from an alleged enticement of the first defendant by the
second defendant to leave the plaintiff.
The
plaintiff was granted a decree of divorce in September 2008, so the
relief in this trial is limited to what has been stated
above. It
needs to be mentioned that on 4 October 2006 His Lordship Hugo J,
granted judgment against the second defendant for R75
000, in
consequence of the second defendant having failed to comply with a
notice of bar which had been served on her attorneys.
Such judgment
was later rescinded, hence the necessity for this trial.
During
the trial it became common cause that the relationship between the
first and second defendants commenced towards the end
of December
2001. By April 2002 after a trip which the plaintiff and the second
defendant had surreptitiously taken to Cape Town
over the Easter
weekend, the second defendant became aware that the defendant was a
married man. Notwithstanding this, her relationship
with the first
defendant only came to an end about four months ago. At the present
time the second defendant has returned to her
husband in an effort to
reconcile her marriage. This relationship which the first and second
defendants enjoyed, was in flagrant
disregard of the feelings of the
plaintiff, who at all times was intent on saving her marriage. I was
impressed by the plaintiff
when she gave her evidence and Miss Jasat
who appeared on behalf of the second defendant, correctly conceded
that the plaintiff
had been a good witness.
The
plaintiff testified that prior to the commencement of the first and
second defendant's relationship with one another, she had
a good
marriage. She enjoyed the support of the first defendant and they
were inseparable, even going on shopping trips together
to buy
groceries. Furthermore, they had two young boys who at that time
would have been about six and eight years of age respectively.
She
also testified that the first defendant was the owner of a sports bar
in the city. It was here that the first defendant met
the second
defendant who was a frequent visitor thereat. The second defendant
was a sales representative who sold detergents. Initially
the
relationship may have been business related, but it soon developed
into a personal one, so much so that the second defendant
testified
that they started having intercourse with one another from December
2001. A child was born of the adulterous relationship
between the
parties in January 2003. The plaintiff testified that on several
occasions the second defendant telephoned her and
suggested that she
should leave the first defendant as she was in a relationship with
him. On one of these occasions in December
2003, the second defendant
humiliated the plaintiff by advising her that she had slept on her
bed at the matrimonial home.
The
plaintiff hired a private investigator during or about August 2004 to
assist her. In consequence thereof, she arrived at the
second
defendant's place of work. The second defendant accused her of
trespass, said that the first defendant was not there, although
the
plaintiff on searching the premises found the first defendant hiding
in the shower. The second defendant reiterated to the
plaintiff
that she was in love with the first defendant and had had a child
with him. An altercation occurred between the plaintiff
and the
second defendant, resulting in the plaintiff sustaining injuries in
the form of scratches to her nose and face.
On
another occasion the plaintiff testified that she was seated in her
vehicle with her young children when the second defendant
put her
head through the passenger window and told her children that they now
had a sister. The plaintiff testified that as a result
of this
incident, at least one of her children had been traumatised. Indeed,
the plaintiff must have been humiliated herself.
The
plaintiffs evidence was corroborated in a limited extent by one Ricky
Pillay who testified that he was an employee of the sports
bar, that
the second defendant was a frequent visitor thereat, and even brought
their love child along on one occasion. He got
the impression that
the second defendant was chasing the first defendant. It became
common cause that after the altercation which
had occurred between
the plaintiff and the second defendant, that the second defendant was
advised not to return to the sports
bar. Notwithstanding this
warning, the second defendant did return a few months later.
The
first defendant somewhat surprisingly, also testified on behalf of
the plaintiff. Although some of this evidence certainly corroborated

the evidence of the plaintiff insofar as their marriage being a good
marriage prior to the commencement of the relationship with
the
second defendant, the first defendant was intent on trying to prove
that it was not he who had done the chasing, but the second
defendant
was the person who had actively enticed him into the relationship. To
me he was an unimpressive witness and was unable
to explain why he
had instructed his attorneys in the pleadings in the divorce action
on certain allegations which were contained
in the plea as to what
was the real cause of the breakdown of the marriage.
The
second defendant also testified and, as one might have expected, her
evidence was that it was the first defendant who did the
chasing by
...{inaudible - audio fades totally) The second defendant confirmed
much of what the plaintiff testified to in regard
to the happening of
the incidents, but of course disputed those parts of the plaintiffs
evidence in regard to the plaintiffs testimony
that the second
defendant had called her to leave the first defendant. Although I
accept that the second defendant now realises
the error of her ways,
insofar as her evidence conflicts with the version of the plaintiff,
I prefer to accept the veracity of
the plaintiff's evidence.
It
must also be mentioned that the second defendant went along with the
first defendant's viewpoint, that they had never been away
together
on the Easter weekend trip to Cape Town, and lied to the plaintiffs
family and her own family, on this aspect and only
relented and
confessed to such trip many months later. An aggravating feature in
this matter is that the second defendant continued
in the
relationship with the first defendant for many years, even though
from about 2005 it appears to have been an on and off
relationship as
she had moved away from Pietermaritzburg. She continued with this
relationship notwithstanding a family meeting
which was held between
the families of all parties, after the first and second defendants
had returned from Cape Town, but even
after one of the exchanges
which she had with the plaintiff when the plaintiff warned her that
she would have trouble if she took
'Anand away'. She chose to ignore
the advice which must have been given to her at the family meeting as
early as April 2002, and
continued to lie about the weekend in Cape
Town for some time thereafter. Even when she left Pietermaritzburg
and lived in Johannesburg,
she provided accommodation for the first
defendant at a relative's home.
Having
regard to the totality of the evidence, 1 am satisfied that the
plaintiff has discharged the
onus
of
proving not only her cause of action based upon contumelious, but
also her cause of action based upon enticement. The question
of how
much compensation should be awarded to the plaintiff is always
something which is difficult to be accurate upon.
When
the matter came before His Lordship Hugo J, he awarded an amount of
R75 000 and referred to the fact that what the second defendant
had
done was a serious infringement to the plaintiffs rights, more
particularly, that it had been conducted openly and had involved

others. Mr Mcintosh on behalf of the plaintiff submitted that an
award in excess of R75 000 should be made, bearing in mind that

subsequent to the application for rescission of the judgment, the
second defendant had openly continued the relationship with the
first
defendant. In my view, an increase on the amount awarded by His
Lordship Hugo J might be considered punitive in nature. I
do not
believe that the award should be increased, and I consider that a
fair award of damages is in an amount of R75 000.
In
conclusion therefore, 1 grant an order in the following terms:
1.
The second defendant is directed to pay the plaintiff R75 000,
together with interest thereon at 15,5% per annum from date of
APPEARANCES:
FOR
THE APPELLANT
ADV
A P MclNTOSH
FOR
THE RESPONDENT
MR
S JASAT
INTERPRETER
NOT
REQUIRED