Minister of Safety and Security v Meyer and Another (A690/04) [2004] ZAWCHC 31 (8 November 2004)

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[2004] ZAWCHC 31
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Minister of Safety and Security v Meyer and Another (A690/04) [2004] ZAWCHC 31 (8 November 2004)

IN
THE HIGH COURT OF SOUTH AFRICA
(Cape of Good Hope
Provincial Division)
Case No. A690/04
In the matter between
THE MINISTER OF
SAFETY AND SECURITY Appellant
And
RALPH WARREN MEYER
First
Respondent
ERNEST SIMPSON

Second Respondent
JUDGMENT
DAVIS J:
Introduction.
This is an appeal against a judgment delivered in the Magistrate’s
Court, Cape Town in terms of which the appellant was awarded
damages
in the sum of R40,000 as a result of certain words uttered by second
respondent who was employed by the South African Police
Services
(‘SAPS’) as an administrator/radio operator.
The
factual background
On 20 March 2000 first respondent drove in a blue Toyota Venture
patrol vehicle to investigate a case involving a stolen vehicle.

Pursuant to this police operation, first respondent, who was
accompanied by Sergeants Rhode and Duda had contact with the police
radio control centre. The following exchange then took place:
‘
Gesprek
begin op 22:09:
XR-332 Is there no case
number?
Beheer Go to Enquiries
and test the vehicle and get the case number there.
XR-332 No man – you are the one who giving the code 6, so you have
to know everything of the vehicle.
Beheer Ja Duda…as you
may well know you also work inside and you also make code 6 when you
sit in the sender, where the heck am
I suppose to get the case number
from as if I just got the code 6 and the people just phone it true
now.
XR-332 You must said
that the complainant is still busy with the case there la..police
station.
Beheer Ja obvious I
will give the case number if there was one.
WM-28 Control you must
not speak so “vinning” English because there is not a English
word like “sender”.
Beheer On the
control……on the control.
XR-358 Beheer gee daai
ou a “piece of mind”!
Beheer Het julle
verstaan wat daai man met die groot oë gesê het?...en daai coke
glass brille!
WM-28 Wie is dit?...wie
is dit?....Identifiseer daai persoon……ons ken nie mense met groot
oë hier nie….wie is dit nou?
Beheer Groot oë en dik
brille…..hy werk vir Radiobeheer….wie is hy?
WM-28 Nee ek ken nie so
‘n persoon nie.
Beheer Hy is ‘n
inspekteer en hy ry bestuur ‘n Venture.
WM-78 Nee ek het nog
nie iemand gesien wat in ‘n blou Venture ry nie…gee ddai ou se
van man?
WM-17 Hulle sê hy lyk
soos ‘n “camelion”……”camelion”.
WM-18 Beheer WM-18
Beheer Ek luister
WM-18 Wat praat julle
so oor die man se algemene toestand?....hy is gelukkig oor daai
brill.
Beheer Hoe lyk dit jy
het ook ‘n paar dik brille as jy nou vir hom “cover”
WM-276 Beheer gou in 9
daar……’
First respondent testified that he had been teased and tormented
mercilessly while at school. It was common cause that first
respondent
suffers from a condition known as Crouzon Syndrome. This
Syndrome presents with prop topic maxillary hypoplasia and class III
occlusion.
He expected that his acute facial features would not be a
significant consideration in a professional police environment. He
testified
further as to the impact of the content of the words
uttered by second respondent: ‘Toe ek daai woorde gehoor het, het
dit my,
dit was ‘n direkte aanval op my professionele –
professionaliteit, en ek nie my werk daai aand soos altyd 100%
voltooi of gedoen
nie. Ek was diep geskok…’
Second respondent
admitted that he was the operator in the radio control room who had
uttered the words ‘het julle verstaan wat
daai man met die groot oë
gesê het? En daai Coke glass brille….groot oë en dik brille…..hy
werk vir radio beheer….wie is
hy…hy is ‘n inspekteur en hy ry
bestuur ‘n Venture’. He sought to justify his conduct on two
separate grounds, namely that
it was first respondent who uttered the
words ‘Beheer gee daai ou a piece of mind’ which second
respondent described as a provocative
statement aimed at himself and
secondly that the words uttered by him had been spoken in jest.
The magistrate found
that ‘the remarks go too far to be merely jest and cannot be
equated with the use of nicknames, …..’ Furthermore
she made the
finding that the words ‘gee daai ou a piece of mind’ were not
spoken by first respondent and therefore there was
no basis for the
alleged provocation. The magistrate held that the remarks were
‘defamatory in the sense of exposing the Plaintiff
to ridicule at
the very least. The colleagues who overheard the remarks, despite
their respect for the Plaintiff, could not have
helped having a laugh
and thinking how the Second Defendant described the Plaintiff’.
In the alternative, the
magistrate found that an injuria had been committed, in that first
respondent’s dignity had been injured
by the manner and content of
the words uttered on the police radio. Following
Minister of
Police v Rabie
1986(1)(117) (A) the magistrate found that the
words had been uttered while second respondent was on duty and acting
in the course
and scope of his employment with appellant. Having so
found in favour of first respondent, he awarded damages in the amount
of
R40,000.
The Key Issues.
This appeal deals with four separate questions, namely the existence
of defamation, the existence of an iniuria, thirdly whether
second
respondent acted within the course and scope of his employment with
appellant and fourthly the
quantum
of damages in the event of
first respondent being successful in respect of an action based
either on defamation or the iniuria. Mr
Eia, who appeared on behalf
of first respondent, submitted that defamation entailed the
wrongful and, intentional publication of
words or
behaviour concerning
another person which has the effect of injuring that person’s
status, good name or reputation. See
Neethling Potgieter and
Visser Law of Delict
(4
th
ed) at 338. Mr Eia
submitted, on the basis of first respondent’s evidence concerning
his acute facial features, together with the
evidence of his
colleagues Duda and Rhode that the words constituted abuse. According
to Duda, the words were clearly designed ‘to
defame or demoralize
the person they were directed to, who is Inspector Meyer’.
Mr Eia’s submission
regarding defamation appears to stretch the criteria for defamation
to the point where the distinction between
defamation and an action
based on an
iniuria
is obliterated. As Burchell
Personality
Rights and Freedom of Expression
:
The Modern Action Injuriarum
(1998) at 189-190 submits ‘The test evolved by our courts over
the years for determining what consists defamatory matter is whether
the imputation lowers the plaintiff in the estimation of
right-thinking persons generally.’ In the joint judgment in
Mohomed v Jassiem
1996(1)SA 673 (A) at 702 A-B the critical
question was posed thus: ‘Were the words defamatory of Jassiem
despite the fact that
they lowered his esteem in the eyes of only the
particular community in South Africa and not in the eyes of the
public generally’.
Accordingly, my
difficulty with first respondent’s case based upon defamation is
the absence of evidence to the effect that first
respondent’s
reputation as a police officer was reduced in the eyes, even of his
own specific police community. In this regard,
the following extract
from respondent’s own evidence is important:
‘Voor die voorval het
hulle vir jou respekteer, na die voorval het hulle jou respekteer,
hulle dink no glad niks minder van jou
nie?----Nee, Hulle – ek kan
nie vir hulle part dink nie. Dit is wat ek glo.
Nee, maar die
aanduiding wat u nou vir die Hof gegee het dat die mense dink nog
nie, hulle het nog nooit vir jou ‘n aanduiding gegee
hulle dink
minder van u nie?---Nee’
Neither of Sergeant
Rhode or Duda was prepared to testify that after the incident first
respondent was no longer respected by his
colleagues or that his
reputation as a police officer had been diminished. To the
contrary, both denied that other police officers
‘had seen him in a
lesser light’.
The fact that there is
insufficient evidence to justify an action on the grounds of
defamation is not however dispositive of the case.
As an alternative
claim, first respondent brought an action on the grounds of an
impairment of his dignity. In order to ground
a successful action
for damages for injury to dignity, there must be:
an impairment of a person’s dignity
which was perpetrated with
animus injuriandi
See in general
Minister of Justice
v
Hofmeyr
1993(3) SA 131(A). As
long ago as 1908
Innes CJ
said in
R v Umfaan
1908 TS
62
at 66 that
iniuria
was ‘a wrongful act designedly done
in contempt of another, which infringes his dignity, or his personal
reputation. If you look
at the essentials of
iniuria
we
find ….that they are three. The act complained of must be
wrongful; it must be intentional; and it must violate one of those
real rights, those rights
in rem
related to personality which
every free man is entitled to enjoy’. The advent of a
constitutional state in this country has reinforced
the strength of
the common law action for
iniuria
. Section 10 of the
Republic of South Africa Constitution Act 108 of 1996 provides that
every one has inherent dignity and the
right to have their dignity
respected and protected.
The words spoken by
second respondent undermined the dignity of first respondent. The
use of these words represented an aggressive
act towards first
respondent and constituted impairment of his dignity. The ultimate
criterion for determining the impairment of
a person’s dignity is
not the sensibilities of a particular plaintiff nor of a
hypersensitive individual but that of a reasonable
person. In this
case, the words which sought to remark upon the physical features of
a fellow police officer and to draw attention
to marked physical
differences, were construed to be an impairment of first
respondent’s dignity by his colleagues, who heard
it. This much is
clear from their testimony. It represented an assault on the dignity
of first respondent. For these reasons, I
am of the view that the
words spoken by second respondent constitute an
iniuria
.
This then raises the
question as to the potential liability of appellant. In
Minister
of Police v Rabie
1986(1) SA 117(A) at 130H-I
Van Heerden JA
said ‘In determining whether an employee’s activities were
divorced from his employer’s affairs, the former’s intention or
motive is material. Thus as a general rule, whether the tortuous act
of an employee is not directed, at least partially, to a furtherance
of his employer’s business, but is done for some purpose of his own
having no relation to his employment, the employer is not liable.
In
particular there is no vicarious liability if the act of the employee
is not performed for the accomplishment of an object for
which he was
employed but in the furtherance of personal animosities….Hence it
is often said that an employer cannot be held
liable if his
employee performed an independent act, or acted for a purpose
personal to an employee, or was motivated entirely by
personal reason
such as malice or spite….. If there is a sufficiently close
connection between such a capricious or wanton act
and other conduct
of his in furtherance of his employer’s business, the latter may be
held liable. But if there is no connection
between the wrong and such
other conduct the intention with which the employee acted, even if he
is purported to do so on behalf
of his master, is generally decisive
over the question whether the wrong was committed within the scope of
his employment.’
Mr Salie, who appeared
on behalf of appellant, submitted that there had been a history of
animosity between first and second respondent.
The latter had
therefore acted for his own purpose. Furthermore, second respondent
had acted way beyond the code of conduct for
Public Service Act
personnel employed in the SAPS. That code of conduct places upon any
employee the duty “
inter alia
to be polite, helpful
and reasonably accessible in his or her dealings with the public, at
all times treating members of the public
as customers who are
entitled to receive high standards of service, to have regard to the
circumstances and concerns of the public
in performing her or his
official duties in the making of decisions affecting them, to not
abuse her or his position in the public
service to promote or
prejudice the interest of any political party or interest group, to
respect and protect every person’s dignity
and her or his rights as
contained in the Constitution.”
Mr Salie submitted that
these clauses called for a restrained approach from a radio operator
such as second respondent. The language
which he employed had not
been sanctioned in terms of his contract with the SAPS; and had been
uttered outside of the course and
scope of his employment.
The words employed by
second respondent were uttered in his capacity as a radio operator
during his hours of employment with SAPS.
An examination of the
transcript reveals that part of the conversation that took place
clearly promoted the objects of second respondent’s
employer in
that it dealt with issues of crime control and detection. That
additional words were used during the employment by second
respondent
of his employer’s radio system pursuant to his duty as a radio
operator, does not itself mean that he was not then
acting within
the course and scope of his employment. As was acknowledged in
Minister van Veiligheid en Sekuriteit
v
Japmoco BK
2002(5)
SA 649(SCA), at para 11 an act which falls in the scope of employment
even where it conflicts with an emphatic ban from the
employer and
even where the employee acted intentionally and not negligently. The
closer the connection between the employee’s
action for his own
interest and the purpose and the business of employer, the more
likely that the employer would still be liable.
(at para 11)
Obviously, each case
must be decided on its own facts. In this case, the offensive words
were uttered during second respondent’s
performance of his duties
as a radio operator. That he acted in a manner which was contrary to
the code of conduct can be accepted.
That he acted during the course
of his employment as a radio operator is similarly manifest from the
examination of the transcript.
To hold that he was not acting in the
course and scope of his employment would be to mandate a court to
employ a blue pencil test
whereby certain of the words of the
transcript would be deleted so as not to qualify as having been
uttered within the course and
scope of his employment. The balance of
the text would then be held to fall within the course and scope of
his employment. That,
in itself, is indicative of a conclusion that
the passage of insulting remarks was spoken in one brief encounter
and during a period
where the second respondent was being employed by
the appellant. Furthermore, during this period he was acting in the
course of
his employment as a radio operator. For these reasons, the
magistrate was correct in finding that appellant was vicariously
liable
for an
iniuria
.
Quantum.
There is no rigid formula for the determination of the quantum of
damages to be awarded in terms of a successful action based on
actio
injuriarum
See Visser and Potgieter
Law of Damages
(1992)
at 404 ff. A court must of course take consideration of the high
premium placed on the protection of human dignity guaranteed
by our
common law and now enshrined in the Constitution. However, as the
court observed in
Argus Printing and Publishing Co. Ltd
v
Inkatha Freedom Party
1992(3) SA 579 (A) at 590 E, an action
for defamation and therefore, by extension for any other form of
iniuria,
is intended to vindicate the reputation of the
plaintiff and not to provide a road to riches.
In this case the first
respondent did not, on the evidence suffer a reduction of his
reputation. His dignity and feelings unquestionably
were hurt by the
statements uttered by second respondent. However, the events which
gave rise to the present dispute took place
within the context of an
exchange between colleagues over a police radio. In this specific
context it can be expected that a somewhat
more robust exchange would
be likely to take place than would be the case in more genteel
company. A level of latitude with regard
to the nature and content
of exchanges on this kind of radio should be recognized. In this
case, second respondent exceeded an acceptable
level of latitude.
His remarks were hurtful and went beyond the bounds of jest. This
was not a series of good-natured remarks which
could be classified as
fun. The evidence indicated that listeners did not regard the words
employed as a joke. In my view, the words
employed insulted first
respondent. They were not however destructive of his dignity or
reputation. An award of R40,000 is manifestly
excessive in this
context. As a guide the magistrates award can be compared, for
example, to the award of R50,000 for a far more
serious form of
defamation in
Independent Newspaper Holdings Limited and Others
v
Suliman
, (unreported decision of the Supreme Court of Appeal,
case no. 49/2003; judgment delivered on 28 May 2004).
While Mr Eia urged this Court not to interfere with the considered
award of damages by the magistrate, this invitation must be declined.
The award is significantly excessive when weighed against the
impairment of first respondent’s dignity.
In view of the result,
it cannot be said that any party was substantially successful so as
to justify an award of costs.
For these reasons the
following order is made:
The
appeal succeeds.
The
order of the magistrate is set aside and replaced by the following
Judgment is given for the plaintiff against first and second
defendants jointly and severely in the sum of R3,000 together with
costs,
such costs to include the cost of counsel on the bar counsel
tariff.
3. In respect of this appeal there is no award as to costs
______________
DAVIS J
I agree

______________
MEER J