Maithufi v Minister of Safety and Security of the Republic of South Africa (20382/05) [2007] ZAGPHC 163 (4 July 2007)

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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 20382/05

PROFESSOR

IGNATIUS PHILLIP MAITHUFI PLAINTIFF

AND

MINISTER OF SAFETY & SECURITY OF THE

REPUBLIC

OF SOUTH AFRICA DEFENDANT

JUDGMENT

MOKGOATLHENG,

J

INTRODUCTION

[1] The plaintiff has instituted action against the defendant for payment of the amount of R250 000,00 for damages allegedly suffered as a result of the infringement to his dignity and reputation. The action is opposed.

THE PLAINTIFF’S EVIDENCE

[2] The plaintiff testified that on 15 December 2004 at about 7:45 hours he was driving his red Jeep Cherokee on Watermeyer Street Pretoria, on his way to his residence at 263 Manser Street Meyerspark Pretoria.

[3] He states that at the intersection of corner of Watermeyer and Van Dyk Streets, he turned right into Van Dyk Street, because the traffic light was green in his favour. He was travelling on Van Dyk Street before turning into Pienaar Street, when he noticed a police vehicle travelling on Van Dyk Street in the opposite direction. The police vehicle negotiated a u-turn and flashed its lights indicating to him to stop.

[4] He turned left into Pienaar Street and stopped at the bus stop. Two policemen alighted from the police vehicle with their firearms drawn, and the pointed at him. Inspector Prinsloo, accused him of being intoxicated. He denied this.

[5] Inspector Prinsloo then accused him of driving against a red traffic light. He denied this, and told him that he was followed by two vehicles after he traversed the intersection. Inspector Bekker said he is “hardegat”. He says that he did not give him cause to utter what he considered derogatory words.

[6] Inspector Bekker instructed him to hand over his vehicle keys. He asked what for, he was not given any reason. Inspector Prinsloo instructed him to get out of his vehicle. He did so. He placed his vehicle keys in his trouser pocket. Inspector Bekker instructed inspector Prinsloo to take the keys from him by force, which he did.

[7] He requested the police to take him for a blood test or detain him at the police station because they alleged that he was under the influence of alcohol. He refused that the police should drive his vehicle, he got on the driver’s seat and told them that they would rather shoot him than drive his vehicle.

[8] It was raining. The police left which his vehicle keys. After 15 minutes they returned, stopped next to his vehicle and threw the keys at him. He asked them what they thought they were doing. The police drove off. He followed them as he was under the impression they were going to the Silverton Police Station. He lost their trail as the were driving too fast.

[9] He went to the Silverton Police Station. He found inspectors Mtshali and Hlongwane. He told them he wanted to lay a charge of attempted robbery, they refused to assist him. Inspector Prinsloo and Bekker arrived. The latter demanded his driver’s licence. He refused to hand it over. He told him that they had a chance to charge him, but did not do so. Inspector Hlongwane requested him to talk to inspector Bekker and Prinsloo, he refused.

[10] He left the police station because he realised that nothing was going to happen. The following day he made a complaint to Captain Stadler to investigate his ill-treatment by inspectors Bekker and Prinsloo. He submitted a statement to captain Stadler.

[11] Captain J H Stadler informed him in a letter dated 1 February 2004 headed: “Complaint against Police: Date 16 December 2004, that an interview was held with the police officers and remedial measures have been taken against them to present such incidents in future.” He was not satisfied with the outcome. He ultimately decided to institute legal proceedings against the defendant.

THE EVIDENCE OF INSPECTORS PRINSLOO AND BEKKER

[12] In their evidence inspector Bekker and Prinsloo corroborated each other. They stated, that, on the evening in question they had stopped at the intersection of Watermeyer and Van Dyk Streets because the traffic light was red.

[13] They stated that after the traffic light changed to green, inspector Bekker entered the intersection, travelling along Van Dyk Street, that when they did so, the plaintiff who was travelling on Watermeyer Street turned right into Van Dyk Street, against a red traffic light.

[14] They executed a u-turn back into Van Dyk Street and stopped the plaintiff who had turned right into Pienaar Street. They alleged that they drew their firearms and held them at 40 degrees their barres facing into the ground. The deny pointing their firearms at the plaintiff. They deny calling the plaintiff “hardegat”. They deny taking the plaintiff’s vehicle keys by force or at all.

[15] Inspector Bekker stated that the plaintiff’s breath smelled of alcohol. They testified further that they were called by radio to attend to a housebreaking incident which was in progress, that they left the plaintiff at the bus stop in Pienaar Street. They stated that after attending to the housebreaking incident, whilst patrolling passed the bus stop at Pienaar Street and saw the plaintiff with his vehicle at the same place. They had left him. The plaintiff followed them. They received a call from the police station that the plaintiff had made a report regarding the earlier incident they had with him. The went to the police station. They found the plaintiff. He was aggressive and uncooperative as he had earlier been at the buss stop in Pienaar Street.

THE EVIDENCE OF INSPECTOR HLONGWANE

[16] Inspector Hlongwane testified that inspectors Bekker and Prinsloo were called by radio to attend to a housebreaking incident. He confirms that the plaintiff arrived at the police station, that he requested to lay a charge of crimen injuria against inspectors Bekker and Prinsloo. He stated that because the plaintiff appeared to be under the influence of alcohol he advised him to return after four hours because in terms of procedure it was not advisable to take a statement from a person who was not in full control of his senses.

[17] THE EVALUATION OF EVIDENCE

Under cross-examination the police inspectors when asked why they did not arrest the plaintiff for resisting arrest, stated that they wanted to take him to the police station to issue him with a traffic ticket because they did not have the J534 book.

[18] In my view this explanation is spurious and disingenuous and mendacious. If indeed the plaintiff had contravened a traffic regulation by driving his vehicle against a red traffic light, whilst under the influence of alcohol, the immediate and effective course of action, was for the police inspectors to effect an arrest.

[19] The reason preferred by the police inspectors that they left the plaintiff to attend to a housebreaking incident does not avail them as a defence, because on their version, attending the housebreaking incident, they returned to the buss stop at Pienaar Street and still found the plaintiff in his vehicle, yet they did not arrest him, nor did they drive him to the police station to issue him with a traffic offence summons. Further at the police station the inspectors still did not arrest the plaintiff nor did they issue him with a traffic offence summons despite the fact that there was a J534 book at the police station according to their version.

[20] In my view the evidence of the two police inspectors that the plaintiff drove his vehicle against a red traffic light at the intersection of Watermeyer and Van Dyk is false and is contrived, to proffer a reason why they stopped and pulled over the plaintiff in his vehicle.

The police inspector’s explanation that, they fortuitously after 15 minutes returned whilst patrolling to the bus stop at Pienaar Street and again found the plaintiff is not plausible having regard to the fact that the plaintiff testified that the police inspector forcibly took his vehicle keys and left with them, that after 15 minutes they returned and threw the vehicles keys at him calling him “a hardegat”.

[21] The version of the plaintiff is more probable having regard to the fact that he followed the police vehicle, and subsequently repaired to the police station where he reported the incident to inspectors Hlongwane and Mtshali, who then radioed the police inspectors to attend at the police station. Inspector Hlongwane confirms that the plaintiff intended to lay a charge of crimen injuria. The following day plaintiff laid a complaint with Captain Stadler attaching a statement relating to the incident. The content of the statement is similar to the evidence plaintiff adduced in court.

[22] Captain Stadler conducted an inquiry and interviewed both inspectors regarding the incident. Both inspectors confirmed that they gave their versions. Captain Stadler advised the plaintiff that “remedial measures have been taken against them to prevent such incidents in future.”

[23] In my view Captain Stadler found that the inspectors conduct was at least not in accordance with accepted police procedures. In effect Captain Stadler rejected the versions of the two inspectors.

[24] The plaintiff in his statement submitted that Captain Stadler mentions that they forcibly took his vehicle keys and drove away with them, then he requested them to take him for a blood test, that they did not, that he took their vehicle registration number BMX 269 B, and that they called him “a hardegat”. These allegations are made contemporaneously on 17 December 2004 and were repeated in court.

[25] In my view the inspectors at the bus stop in Pienaar Street infringed the dignity of the plaintiff by; (a) subjecting him to degrading conduct after stopping his vehicle without any lawful reason; (b) forcing him to alight there from in the pouring rain; (c) calling him a “a hardegat”, (d) telling him that he can go an report the incident to President Mbeki as they didn’t care or give a damn, (e) pointing him with their firearms without any lawful reason, and (f) accusing him of being drunk without any lawful reason.”

[26] The evidence of inspector Prinsloo is that he did not smell any alcohol from the plaintiff and that he did not appear to be drunk. The evidence of inspector Hlongwane that the plaintiff was heavily under influence of alcohol, that the could not stand properly is an exaggeration, when one has regard to the fact that the plaintiff was not arrested for driving a motor while whilst under the influence of alcohol. This evidence is contrived and disingenuous.

[27] In Grobler v Naspers Bpk en ‘n Ander All South African Law Reports (2) 2004 160 (C) at 209 para 57 Nel J held that:

THE

LAW

“57. Die ‘standard test’ vir middellike aanspreeklikheid is onlangs as volg deur Zulman AR beskryf in ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2000] ZASCA 136; 2001 (1) SA 372 (SCA)to 378C-G:

‘[5] The standard test for vicarious liability of a master for the delict of a servant is whether the delict was committed by the employee while acting in the course and scope of his employment. The enquiry is frequently said to be whether at the relevant time the employee was about the affairs, or business, or doing the work of, the employer (see for example, Minister of Police v Rabie 1986 (1) SA 117 (A) at 132G; Minister of Law and Order v Ngcobo [1992] ZASCA 172; 1992 (4) SA 822 (A) at 827B.) It should not be overlooked, however, that the affairs of the employer must relate to what the employee was generally employed or specifically instructed to do. Provided that the employee was engaged in an activity reasonably necessary to achieve either objective, the employer will be liable, even where the employee acts contrary to express instructions (see for example, Estate van der Bijl v Swanepoel 1927 AD 141 at 145-6). It is also clear that it is not every act committed by an employee during the time of his employment which is for his own benefit or the achievement of his own goals which falls outside the course and scope of his employment (Viljoen v Smith [1996] ZASCA 105; 1997 (1) SA 309 (A) at 315F-G). a master is not responsible for the private and personal acts of his servant, unconnected with the latter’s employment, even if done during the time of his employment and with the permission of the employer. The act causing damage must have been done by the servant in his capacity qua servant and not as an independent individual (see, for example, Feldman (Pty) Ltd v Mall 1945 AD 733 at 742 and HK Manufacturing Co (Pty) Ltd v Sadowitz 1965 (3) SA 328 (C) at 336A.”

[28] In the case of Bremmer v Botha 1956 (3) SA 257 T, it was held that: “to constitute verbal injury the words complained of need not have a defamatory meaning, they must impair the plaintiff’s dignity and must be insulting in the sense that they must amount to degrading, humiliating or ignominious treatment The learned Boshoff AJ on page 260B-E stated that “In the actio injuriarum the injuria consists of a wrongful act designedly done in contempt of another, which infringes his dignity, his person or his reputation.

[29] In the case of Rex v Umfaan, 1908 TS 62 at p66 Innes, CJ referred to the three essentials of injuria as follows:

‘The act complained of must be wrongful, it must be intentional, it must violate one or other of those real rights, those rights in rem, related to personality, which every free man is entitled to enjoy. Chief Justice de Villiers Laws of Injuries, says (p27): ‘With these ingredients to hand it will be found that there are three essential requisites to establish an action of injury. They are as follows – (1) an intention on the part of the offender to produce the effect of his act; (2) an overt act which the person doing it is not legally competent to do; and which at the same time is (3) an aggression upon the right of another, by which aggression the other is aggrieved and which constitutes an impairment of the person, dignity or reputation of the other. Earlier peace of mind, secure against aggression upon his person, against the impairment of that character for moral and social worth to which he may rightly claim, and of that respect and esteem of his fellowmen of which he is deserving, and against degrading and humiliating treatment, and there is a corresponding obligation incumbent on all others to refrain from assailing that to which he has such right.’

[30] The learned authors Neethling Potgieter Visser in their book, Law of Delict 3rd ed, chapter 10, at page 353, states as follows:

“4.1 The right to dignity

The right to dignity is recognised in our law as an independent personality right within the concept of dignitas.

A person’s dignity embraces his subjective feelings of dignity or self-respect. Infringement of a person’s dignity accordingly consists in insulting that person. There are an infinite number of ways in which a person may be insulted. Any insulting words or belittling or contemptuous behaviour may be included here. Since one is concerned with a person’s opinion of himself and not with the opinion of others, as is the case with defamation, publication of the insulting behaviour to third persons is unnecessary to constitute an iniuria; publication to the plaintiff alone is sufficient. To be classified as wrongful (or as an infringement of the right to dignity), the behaviour must not only infringe the subjective feelings of dignity (factual infringement of a legal object), but must at the same time also be contra bonos mores (violation of a legal norm). Regarding the latter, “the notional understanding and reaction of a person of ordinary intelligence and sensibilities” are of paramount importance. If the plaintiff proves that he feels insulted in circumstances where the reasonable man would also have felt insulted, a presumption of wrongfulness arises which the defendant may rebut by proving the existence of a ground of justification for his conduct.

If he does not succeed in doing this, wrongfulness is certain and a presumption of animus iniuriandi arises. The onus is then on the defendant to rebut this presumption by proving a ground excluding intent. If he fails to do this, an iniuria is proved.”

The question is whether the conduct alleged in the particulars of claim amounted to degrading, humiliating or ignominious treatment of the plaintiff which impaired his dignity in the sense that his absolute rights of personality was infringed.

[31] Section 10 of the Constitution of the Republic of South Africa Act 108 of 1996 recognises human dignity as a fundamental right. In S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC) para 144 at 451C-D Chaskalson J stated: “The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in chapter 3. By committing ourselves to a society founded on the recognition of human rights we are required to value these rights above all others.”

[32] In Delange v Costa 1989 (2) SA 857 (A) 862 Smalberger JA stated that:

“In determining whether or not the act complained of is wrongful the Court applies the criterion of reasonableness – the ‘algemene redelikheidsmaatstaf”. This is an objective test. It requires the conduct complained of to be tested against the prevailing norms of society. (i.e. the current values and thinking of the community) in order to determine whether such conduct can be classified as wrongful. To address the words to another which might wound his self-esteem but which are not, objectively determined, insulting (and therefore wrongful) cannot give rise to an action for injuria.”

[33] The facts pleaded are sufficient to sustain proof that the subjective inference of animus injuriandi feelings of an individual have been wounded, and his dignitas has thereby been impaired is necessary before an action for damages for injuria to succeed. The concept of dignitas is a subjective one. But before that stage is reached, it is necessary to establish that there was a wrongful act

[34] In Minister of Police v Mbilini 1983 3 SA 715 (A) at 716 it was stated that:

“It was however conceded … that if the ordinary decent right – thinking person would regard a threat … as an insult to his or her dignity would constitute an injuria of which the law would take cognisance, provided that the particular individual addressed did in fact feel insulted. This to my mind is a correct concession.”

[35] The plaintiff testified that he was humiliated by the conduct the police inspectors, meted out to him, that he felt degraded because they called him “a hardegat”, and told him that they do no care he can go and report the incident to President Mbeki, that nothing would happen to them, and says he particularly felt degraded because this incident happened on Reconciliation Day.

[36] It is generally accepted that the injuria committed verbally, and the words are per se injuries, the aninus injuriandi is presumed until rebutted.

[37] The defendant’s ground of justification and the rebuttal of the purported injuria in the word “a hardegat” was not per se injurious that objectively considered, even if it insulted and violated the plaintiff’s subjective feelings, feelings the latter though his aggressiveness and uncooperative conduct contributed to the word “intention” in the averment that the plaintiff was wrongfully accused of drunken driving, this impairing or damaging his dignity, constituted an inference of animus injuriandi drawn from all the facts and circumstances pleaded, and can reasonably be said to have subjected the plaintiff to insulting, offensive, degrading, humiliating conduct or contumelia to injuria complaint of, that the words on their own cannot provide any basis for inferring animus injuriandi on the part of the defendant’s servants.

It is trite that “mere accusation of the infliction of injuria, is in and of itself and contains within itself an allegation of animus injuriandi and that an express allegation of a subjective state of mind indicating animus injuriandi is not necessary”. See Foulds v Smith 1950 (1) SA 1 (AD) at p11.

[38] Animus injuriandi must be alleged expressly or by implication, this entitles the plaintiff to adduce evidence to prove the kind of aminus injuriandi alleged. See NDAMSE v University College of Forthase and Ano 1966 (4) ECD 137 at 142A-D.

[39] HAT Verklarende Handwoordeboek van Afrikaanse Taal Derde uitgawe defines “hardegat as harde-koejawel, and harde-koejawel is defined as. “astrant, parmantig, eiewys, koppig, verwand, hardekwas.”

Die Tweetalige Woordeboek Bilingual Dictionary, eight revised and enlarged education, defines, “astrant as cheeky, impudent, insolent, cocky, or impertinent.”

[40] In my view although the words “harde-gat” were not explicably pleaded in the particulars of claim, the allegations that “the plaintiff was harassed, and/or intimidated” can on a purposive interpretation, because a person’s constitutional right has allegedly been infringed, encapsulate the notion of verbal utterings.”

[41] I am of the view that the plaintiff by being, (a) accused of being drunk, (b) pointed with firearms without a lawful reason, (c) instructed to get out of his motor vehicle without any lawful reason (d) having his motor vehicle key forcibly taken from him, (e) being left at the bus stop for 15 minutes without any lawful reason, (f) being told that he is ‘a hardegat’ impaired his dignity and such conduct was degrading and humiliating to him. It is so that no member of the public observed the inspector’s conduct, but still the plaintiff was subjected to ignominious treatment.

[42] The plaintiff is a professor of law at the University of Pretoria and sits on the Sough African Police Service Appeal Tribunal. He was subjected to this degrading conduct for no apparent reason by members of the South African Police Services whose function is to protect the public. This conduct humiliated and insulted him and infringed his dignity.

In the premises I propose making the following order:

The defendant is ordered to pay the plaintiff the amount of R50 000,00.

The defendant is ordered to pay plaintiff’s costs.

Dated the 4 JULY 2007 at Pretoria.