Kemp v Zissimides and Others (127/2012) [2013] ZAGPPHC 401 (11 November 2013)

Kemp v Zissimides and Others (127/2012) [2013] ZAGPPHC 401 (11 November 2013)

The court found that the plaintiff was disruptive in the restaurant, justifying intervention by the third defendant's staff. However, the evidence, particularly from an independent witness, established that the plaintiff was forcibly removed with excessive and disproportionate force, resulting in injury. The presence of welt marks and pain in both arms corroborated the use of force beyond what was reasonable. The third defendant, through its employees acting in the course and scope of their employment, was held liable for the plaintiff's damages. The separation of merits and quantum was ordered, with costs reserved pending determination of quantum.

Citation
[2013] ZAGPPHC 401
Parties
Plaintiff: Lorraine Kemp; Defendant: A Zissimides; Defendant: M W Bothma; Defendant: Servest (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 November 2013
Case Number
127/2012
Procedural Posture
Civil Trial / Merits Separated From Quantum; Judgment on Liability Only
Outcome
Plaintiff succeeded on the merits; third defendant held liable for damages. Costs reserved.
Judges
N Kollapen
Legal Topics
Vicarious Liability, Assault, Quantum Separation, Balance of Probabilities
Delict Civil Procedure Vicarious Liability Assault Quantum Separation Balance of Probabilities

Case Brief

Summary, issues, holding and outcome

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Parties

Lorraine Kemp

Plaintiff

A Zissimides

Defendant

M W Bothma

Defendant

Servest (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Judgment on Liability Only

Legal Issues

  1. 1 Whether the plaintiff was forcibly removed from the restaurant by security guards employed by the third defendant, resulting in injury.
  2. 2 Whether the removal was effected lawfully and without the use of excessive force.
  3. 3 Whether the third defendant is vicariously liable for the conduct of its employees.

Ratio Decidendi

The court found that the plaintiff was disruptive in the restaurant, justifying intervention by the third defendant's staff. However, the evidence, particularly from an independent witness, established that the plaintiff was forcibly removed with excessive and disproportionate force, resulting in injury. The presence of welt marks and pain in both arms corroborated the use of force beyond what was reasonable. The third defendant, through its employees acting in the course and scope of their employment, was held liable for the plaintiff's damages. The separation of merits and quantum was ordered, with costs reserved pending determination of quantum.

Court Disposition

Plaintiff succeeded on the merits; third defendant held liable for damages. Costs reserved.

Orders

  • The third defendant is liable for the plaintiff's damages suffered as a result of her being assaulted by security guards of the third defendant acting in the course and scope of their employment on 18 October 2010 at the Grove Mall.
  • Costs in respect of the separated issues are reserved for future determination.