Kariega Park Limited v D and Others (CA 252/2017) [2018] ZAECGHC 102 (12 October 2018)

Kariega Park Limited v D and Others (CA 252/2017) [2018] ZAECGHC 102 (12 October 2018)

The court found that the regional magistrate erred in his approach to pleadings and evaluation of evidence, overemphasising formalistic requirements and failing to properly assess the substance of the respondents' viva voce evidence. The respondents provided credible and detailed accounts of being subjected to...

Source-derived case information.

Citation
[2018] ZAECGHC 102
Parties
Appellant: Kariega Park Limited; Respondent: T D; Respondent: N S; Respondent: N M; Respondent: S N; Respondent: N E N; Respondent: L M; Respondent: B T; Respondent: T S; Respondent: N B N; Respondent: Z N; Respondent: C C M
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
12 October 2018
Case Number
CA 252/2017
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From Regional Magistrate's Judgment
Outcome
Appeal dismissed with costs; cross-appeal upheld with costs; damages increased to R60,000 per respondent.
Judges
RWN Brooks, CM Plasket
Legal Topics
Vicarious Liability, Sexual Violation, Impairment of Dignity, Quantum of Damages, Pleadings and Evidence, Costs Award
Delict Labour Law Civil Procedure Vicarious Liability Sexual Violation Impairment of Dignity Quantum of Damages Pleadings and Evidence +1 more

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Summary, issues, holding and outcome

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Parties

Kariega Park Limited

Appellant

T D

Respondent

N S

Respondent

N M

Respondent

S N

Respondent

N E N

Respondent

L M

Respondent

B T

Respondent

T S

Respondent

N B N

Respondent

Z N

Respondent

C C M

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal From Regional Magistrate's Judgment

Legal Issues

  1. 1 Whether the appellant is vicariously liable for sexual violations committed by its employee against the respondents.
  2. 2 Whether the respondents proved on a balance of probabilities that they were subjected to wrongful and unlawful sexual violations.
  3. 3 Whether the regional magistrate erred in his approach to pleadings and evaluation of evidence.

Ratio Decidendi

The court found that the regional magistrate erred in his approach to pleadings and evaluation of evidence, overemphasising formalistic requirements and failing to properly assess the substance of the respondents' viva voce evidence. The respondents provided credible and detailed accounts of being subjected to intrusive body searches, which the court accepted as true on a balance of probabilities. The conduct of the appellant's catering manager constituted wrongful sexual violation, for which the appellant is vicariously liable. The impairment of dignity suffered by the respondents was aggravated by workplace hierarchy and historical racial dynamics. The damages awarded by the regional...

Court Disposition

Appeal dismissed with costs; cross-appeal upheld with costs; damages increased to R60,000 per respondent.

Orders

  • The appeal is dismissed with costs, including costs for two counsel.
  • The cross-appeal succeeds with costs, including costs for two counsel.