Trident Security Services (Pty) Limited and Another v Bakana (A10/07_) [2007] ZAWCHC 337 (5 April 2007)

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[2007] ZAWCHC 337
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Trident Security Services (Pty) Limited and Another v Bakana (A10/07_) [2007] ZAWCHC 337 (5 April 2007)
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE
NO: A10/07
In
the matter between:
TRIDENT
SECURITY SERVICES
First Appellant
(PROPRIETARY)
LIMITED
LOURIC
LOUW
Second
Appellant
and
SYLVIA
NOMTITI BAKANA
Respondent
JUDGEMENT
DELIVERED ON THE 5
th
DAY
OF APRIL 2007
_______________________________________________________
NDITA,
J:
Introduction
[1] This
an appeal against the decision of the magistrate of Wynberg who
ordered the appellants to pay damages in the sum of R70 000,00
to the
respondent for the impairment of her dignitas in two respects, in
that:
her
dignity was impaired; and
her
privacy was invaded,
[2] For
ease of reference, the parties are referred to as in the court
a
quo.
[3] The
plaintiff is Sylvia Nomtiti Bakana, an adult female of 10299 Sandile
Park, NY 110, Gugulethu, Western Cape. The first defendant
is
Trident
Security (Pty) Ltd
,
a company duly incorporated in accordance with the Laws of the
Republic of South Africa, with its principal place of business at
95
Loop Street, Cape Town, Western Cape. The second defendant is Mr Eric
Louw, an adult male employed by the first defendant as a
Security
Officer at 95 Loop Street, Cape Town.
FACTUAL
BACKGROUND
[4] On
28 October 2005 at Woolworths, Cavendish Square, Claremont, the
second defendant, acting in the course and scope of his employment
with the first defendant, stopped and demanded that the plaintiff
hand over her bag at the entrance/exit of the aforesaid store.
The
plaintiff duly complied with the demand and handed over her bag. The
second defendant proceeded to unpack the contents of the
plaintiff’s
bag on the trading floor of the store in full view of other patrons.
[5] When
he discovered that the bag did not contain any stolen property
belonging to Woolworths, the second defendant returned the
bag to the
respondent.
[6] The
plaintiff testified that she felt invaded, humiliated and degraded by
the second appellant’s conduct.
[7] The
defendants, on the other hand, aver that, when the plaintiff left the
store, she caused the sensormatic alarm to be activated,
and that
prompted the first defendant to request permission from the
respondent to search her bag so that he could locate what activated
the sensor. Furthermore, there was no cause for the plaintiff to feel
degraded because firstly, she had consented to the search,
and,
secondly, the search was conducted with due regard to her dignity and
privacy in a private place away from the entrance to the
store.
[8] Ms
Christine Wyngaard, who is also employed by the first defendant,
testified that she was stationed in a control room where she
was
instructed by one Robert Morris, her supervisor, to monitor the
plaintiff’s movements in the store, which she then proceeded
to do
by making use of various CCTV cameras. The plaintiff relies in her
pleadings only on the conduct of Louw. Her surveillance
by Wyngaard
at the instance of Morris is therefore not part of her cause of
action. The evidence of the surveillance is, however,
admissible as
it forms the background against which all of the evidence must be
evaluated.
[9] There
is a factual dispute as to where the search of the plaintiff’s bag
was conducted. Not much turns on this, because it is
common cause
that the search occurred on the trading floor close to the entrance
and that other shoppers could see it occur.
THE
ISSUES
[10] The
first question to be adjudicated upon is whether the infringement of
the respondent’s dignity and privacy was wrongful.
APPLICABLE
LAW
[11] The
right to dignity “
embraces
… the subjective feeling of dignity or selfrespect or the personal
sense of selfworth, a person’s pride in his own moral
value.
Infringing a person’s dignity means insulting that person.
”
Neethling, Potgieter, Visser:
Law
of personality
2
nd
Ed P28. A person’s privacy is infringed through the unauthorised
acquaintance by outsiders with a person or his/her personal affairs.
This may occur in two ways. One, where an outsider becomes acquainted
with a person or the person’s private affairs, and, two,
where an
outsider who is already acquainted with the person or personal
affairs of a person, causes others to become acquainted with
the
person or the person’s affairs that have nevertheless remained
private.
[12] With
regard to whether the infringement of the respondent’s dignity and
privacy was wrongful, Neethling
et
al
comments as follows at 354:
“
If
the plaintiff proves that he feels insulted in circumstances where
the reasonable person would have felt insulted, a presumption
of
wrongfulness arises which the defendant may rebut by proving the
existence of grounds of justification.
”
ANALYSIS
[13] The
plaintiff’s unchallenged evidence clearly establishes that her
subjective feeling of dignity and self-respect and her privacy
had
been infringed. It is clear that a reasonable person in the position
of the plaintiff would have felt insulted. Louw’s conduct
was
therefore wrongful unless the defendants raise a valid defence.
[14] The
defendant’s principal defence is that Louw’s conduct was not
wrongful. The defendant raises two grounds of justification
in their
plea:
Louw’s
conduct was justified by the fact that the sensormatic alarm had
been activated by the plaintiff passing through the sensors
of the
alarm; and
The
plaintiff had consented to the search of her bag and the display of
its contents.
[15] There
appears to be uncertainty in the law as to whether the onus, which
rests on the defendants, is a full onus or is in the
nature of an
evidential burden (“weerleggingsslas”). On the facts of this
case, it does not, in my view, make a difference. As
I demonstrate
hereunder, the defendants did not, in my view, discharge the onus or
adduce the necessary cogent evidence and the presumption
or inference
of wrongfulness should stand.
[16] There
is a dispute of fact, in regard to the first ground of justification,
on the issue whether the plaintiff triggered the
alarm. The plaintiff
denies that she had passed through the sensors of the alarm and that
she triggered it at all. According to her,
Louw was speaking on his
radio as she approached the exit and he stopped her before she
reached the sensors. Louw and Wyngaard both
say that the plaintiff
did pass through the sensors and that the alarm was activated.
However, two facts are common cause:
there
was nothing belonging to Woolworths in the plaintiff’s bag and
consequently, the alarm should not, if it was working properly,
have
gone off even if she did pass through the sensors; and
the
plaintiff passed through the sensors with her bag twice immediately
after being searched without the alarm going off.
[17] The
defendants accordingly rely on a malfunction of the alarm, that is,
that it was triggered in circumstances where it should
not have gone
off had it been functioning properly. Technical evidence explaining
how the alarm works and whether and how it was
possible that the
alarm could have been incorrectly triggered once when the plaintiff
first passed through the sensors, but not again
when she passed
though the sensors twice soon afterwards, was clearly available to
the defendants. Such evidence was, however, not
adduced by the
defendants. The defendants relied instead on vague, speculative and
inconsequential evidence by Louw, Wyngaard and
Phike (a cashier in
the employ of Woolworths) of previous instances where the alarm is
said to have been triggered without proper
cause. Bearing in mind
that the onus rests on the defendants at least to adduce evidence to
substantiate the ground of justification
they rely upon and thereby
to rebut the inference (if not the presumption) of wrongfulness, the
evidence is, in my view, not convincing
at all. There is no evidence
beyond lay speculation by the witnesses of why and how the alarm was
triggered in other instances. There
is no indication of what relation
the facts of those instances bear to the facts of the present case.
In my view, the probabilities
favour the plaintiff’s version that
she had not yet reached the sensors when she was stopped by Louw. I
say this despite the evidence
of Louw that the alarm did go off.
According to the plaintiff Louw told her when she challenged him
about his conduct that he
thought
that
the alarm had been triggered. Wyngaard’s evidence, that she saw the
lights of the alarm flashing, does not give any indication
of why the
alarm went off. At best she is assuming that the plaintiff had
triggered the alarm. Phike’s evidence that the plaintiff
told her
that the alarm did go off is also not persuasive. Firstly, the
plaintiff pointedly denied this when it was put to her in
cross-examination. The plaintiff stated that if the alarm had gone
off, she would have concluded that Louw was doing his job. Secondly,
I think Phike may in the emotionally charged atmosphere have been
mistaken in what the plaintiff had said to her. It is not unlikely
that the plaintiff had said that the security people claimed that the
alarm went off. In the absence of proper technical evidence
of how
the alarm could have been triggered in the circumstances where it is
common cause that it should not have done so, and in
fact did not do
so when the plaintiff passed through the sensors twice soon after she
was searched, it cannot, I in my view, be found
that the alarm was
triggered by the plaintiff’s passing through the sensors of the
alarm.
[18] The question may then be asked
why, if she did not trigger the alarm, the plaintiff was stopped and
searched by Louw. There would,
on the evidence, appear to be a reason
why the plaintiff was stopped and searched. It is common cause that
the plaintiff’s movements
in the store had been monitored through
the use of CCTV cameras by the security personnel at the instance of
their supervisor Morris.
Morris, who was terminally ill at the time
of the trial, did not testify. It is probable that Louw was
instructed by radio to stop
and search the plaintiff before she left
the store. The plaintiff says she saw Louw speak on his radio as she
approached the exit.
Wyngaard denies that she issued such an
instruction, but Morris, who on the evidence was suspicious of the
plaintiff’s conduct
in the store, may have issued the instruction.
[19] It
was not the defendants’ case at the trial that they were justified
in stopping and searching the plaintiff’s bag because
she had
behaved in a suspicious manner while she was moving around the store.
In fact, Wyngaard, who did the surveillance at the
behest of Morris,
did not think that she was behaving suspiciously at all.
[20] Bearing
in mind the onus born by the defendants, they have, in my view, not
established the first ground of justification relied
upon. They have
not adduced cogent evidence to show that Louw’s conduct was
justified by the alarm being triggered.
[21]
The second ground of justification relied upon is consent. The high
water mark of the defendant’s case in this regard is what
was put
to the plaintiff in cross-examination, namely, that she was asked by
Louw
“can
I look at your bag
”
and that she replied
“yes
”.
It is true that Louw testified that he asked
“may
I search your bag”
to which the plaintiff replied
“yes”.
However, this is not what was put to the plaintiff. Further, in order
to qualify as valid defence, the consent given must satisfy
certain
requirements. These requirements include that the plaintiff had full
knowledge of and realised and appreciates the nature
and extent of
the infringement to which she was consenting. What is required is
sometimes referred to as “informed consent”.
By giving her
consent to Louw to look at her bag, it cannot be said that she
consented to the search in the manner in which it was
conducted. The
evidence is that searches of this nature are usually conducted in the
privacy of an office. At best for the defendants,
the plaintiff can
be said to have consented to such a search in private. The
defendants have not, in my view, proven that the plaintiff
knew what
Louw was about to do and that she realized, appreciated and consented
to the nature and manner of the search that was to
be carried out. It
follows that the second ground of justification has not been
established.
[22] The
defendants have not shown that Louw had a valid basis for conducting
the search. Louw testified that he conducted the search
because the
plaintiff triggered the alarm. This, in my view has not been
established. The defendants have consequently not shown
that Louw
subjectively believed that he did have a valid ground for conducting
the search. It follows that the requirement of fault,
animus
iniuriandi
,
was also fulfilled.
CONCLUSION
[23] It
is common cause that, on the pleadings that when Louw carried out the
search, he was acting within the course and scope of
his employment
with his employer Trident. The defendants are therefore liable,
jointly and severally for the damages suffered by
the plaintiff.
QUANTUM
[24] In
the light of these findings the damages awarded require assessment.
Clearly the treatment the complainant was subjected to
was
humiliating and degrading. I have no doubt that, not only was her
privacy violated, the conduct of the respondent constituted
an
affront to her dignity. To this end she also gave evidence that:
“
Then I came home
and the whole incident came back to me because when I arrived home I
didn’t tell my family, then I was sitting
down and they see that I
was crying because the whole incident came back. Then I told them
what happened to me it’s when I took
the phone book, I phoned the
head office and told them what happened to me, so they said they were
going to take the matter because
what happened to me was very wrong”.
[25] Although there is no
established criterion for the assessment of damages for
non-patrimonial loss, this court must however, in
assessing the
compensation to be awarded to the plaintiff, take into account the
general level of award of damages for defamation
and associated
injuriae
in South Africa over the years. For instance, the
Appellate Division (as it then was) in
Areff v Minister of Police
1997 (2) SA 900
awarded damages in the sum of R1000, 00 (current
value R19 300,00) to a 41 years old director of a company who had
been arrested
and detained for two hours. In
Independent Newspaper
Holdings Ltd and others v Suliman,
case number 49/2003, the
Supreme Court of Appeal considered the award of R50 000,00 to be
appropriate for defamation and affront
to dignity where a newspaper
had published a defamatory statement pertaining to the arrest and
subsequent overnight detention of
the appellant on allegations of
bombing of the Planet Hollywood restaurant at the Waterfront in Cape
Town. Similarly, and in this
division, in
Seria v Minister of
Safety and Security
2005 (5) SA 130
, Meer J succinctly lays out
amounts previously awarded in comparable cases in assessing what is
fair and appropriate compensation.
In the
Seria
case for
example, the plaintiff claimed damages in the sum of R150 000,00 for
damages arising out of his arrest for an alleged violation
of
Section
8(1)(a)
of the
Domestic Violence Act 116 of 1998
. He was detained in
police custody for 18 hours. The court came to the conclusion that a
sum of R50 000, 00 was a fair and proper
award for the unlawful
arrest. In a comparable case of
Stapelberg v Afdelingsraad van die
Kaap
1988 (4) SA 875
(C) a young attorney of Cape Town, whilst
helping an old man place notices under car windscreen wipers was
wrongfully assaulted,
insulted, and belittled by a traffic inspector
and later detained for three hours. The court held that the unlawful
actions of the
traffic inspector caused the plaintiff to suffer
extreme humiliation especially because the incident occurred on his
honeymoon in
the presence of his wife. The court also found the
conduct of the traffic officer to have been cruel and malicious and
considered
an amount of R10 000, 00 (an equivalent of R45 200, 00
according to the consumer price index) as an appropriate award.
Without downplaying
the degradation and humiliation suffered by the
plaintiff, an award of damages of a sum of R70 000, 00 by the court
a
quo
seems, in my view, inconsistent with the general approach of
the courts. One has to be mindful of the fact that, although the
occurrence
did have more lasting effects on the plaintiff, the actual
time frame of the incident could not have been more than two hours.
[26] Counsel
for the appellant sought to persuade us that the award of damages
should not only serve as compensation but also punishment
to the
wrongdoer in order for it to be effective. The purpose of an award of
money in a case such as this is to afford the plaintiff
some
satisfaction for the invasion of her privacy and the affront to her
dignity. To that extent, it may therefore be contended
that a
punitive element to the award should be retained which can, in an
appropriate case, serve to offset the plaintiff’s feelings
of
injustice and outrage caused by the infringement of her personality
rights. (See for instance the discussions in
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (7) BCLR 851
(CC) at paragraphs [62] sand [63] pp 884-6; Visser
and Potgieter:
Law
of Damages
,
2
nd
Ed 464). However, recently the Supreme Court of Appeal in
The
Minister of Safety and Security v Seymour
(2006) (6) RSA 67 has reiterated that the pattern that emerges from
comparing damages awards reveals that courts are not extravagant
in
compensating the loss. Indeed, the approach of the courts has
consistently been that:
“
Money
can never be more than a crude solatium for the deprivation of what
in truth can never be restored and there is no empirical
measure for
the loss”.
(Seymour
supra, paragraph 20)
[27] In
the result, I consider that an award of R30 000, 00 as compensation
for the violation of the plaintiff’s privacy and affront
to dignity
would be appropriate. That is so startlingly disparate from the award
made by the court
a
quo
to
warrant interference on those grounds alone.
COSTS
[28] The
general rule is that costs follow the result. However, in this case,
each of the parties has achieved a measure of success.
In these
circumstances, it would not be fair to dub either the plaintiff or
the defendant as the losers in the appeal. They have
both achieved
substantial success. To order one side to pay the costs of the other
would not be appropriate. It would be fairer to
order each of them to
pay their own costs of appeal.
[29] For
the reasons stated above, I would issue the following order:
1. The appeal on the
merits is dismissed but succeeds on the quantum.
2. The
order of the court
a
quo
is
set aside and substituted with the following order:
“
The
defendants are ordered to pay the plaintiff the sum of R30 000, 00,
as damages, jointly and severally, the one paying the other
to be
absolved, together with costs.”
3. Each of the parties is
ordered to pay its own costs on appeal.
___________________
NDITA,
J
I
agree and it is so ordered.
__________________
LOUW,
J
IN THE HIGH COURT OF
SOUTH AFRICA