SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this 1
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case No. 20/1732
In the matter between:
M, S APPLICANT
And
B, A RESPONDENT
Coram: Millar AJ
Heard on: 01 September 2020
Delivered: 11 September 2020 - This judgment was handed down
electronically by circulation to the parties' representatives by email, by being
uploaded to the CaseLines system of the GLD and by release to SAFLII. The
date and time for hand-down is deemed to be 10H00 on 11 September 2020.
Summary: Civil Law and procedure - requirements for granting of a final
interdict - whether claim for damages an appropriate alternative remedy for
ongoing infringement of rights to dignity and privacy - finding that due to ongoing
nature of infringement damages not appropriate - final interdict granted.
ORDER
It is ordered:
2
[1]. Paragraph 3 of the Order granted on 28 July 2020 reading:
"3. The respondent is interdicted and restrained from copying, using,
sharing, disseminating, distributing and/or publishing the applicants private
and confidential information being, Contacts, WhatsApp messages, Instant
Messenger, MMS, /-Message, SMS, photographs, videos, and/or audio files
emanating and/or downloaded from cellular number […] and/or the […]
account"
is confirmed.
[2] The Respondent is ordered to pay the costs of this Application on the
scale as between attorney and client.
JUDGMENT
MILLAR, A J
[1] This 28 July 2020, the Applicant approached the urgent Court ex parte
and in camera for an order to interdict the use and distribution of certain personal
information which had come into the possession of the Respondent.
[2] The Applicant and Respondent were previously married to one another on
2 May 2002 and were divorced on 13 November 2015. The parties have two
minor children (one of whom is the biological child of the Respondent – born on
2 November 2005) and in consequence of this, have had to interact with one
another in the interests of those children.
[3] At the time the parties divorced, the Applicant's personal email address
was hosted as part of the Respondent's "iCloud account" and her cellular
telephone paid for by one of the Respondent's companies.
[4] This state of affairs persisted for a number of years without incident. It is
not disputed that the Respondent knew that the email address and the contents of
the particular email account were the personal property of the Applicant or that cell
3
phone number and sim card, although paid for by his company, were the
personal property of the Applicant.
[5] On 2 September 2019, the. Respondent, unbeknown to the Applicant,
accessed and copied all the emails in the Applicant's email account. According
to the Respondent, he looked at these emails and also distributed these to third
parties. The Applicant was never made aware of this although she had at this
time opened a new email account because of what she had regarded as
suspicious activity on the one she had been using all along.
[6] During November 2019, the parties instituted applications against each
other in the maintenance Court, in the case of the Applicant for an increase and
payment of arrears and in the case of the Respondent for a reduction.
[7] Notwithstanding the Respondent's possession of the emails and
messages since September 2019, it was only on 2 April 2020 that the
Respondent disclosed to the Applicant that he was in possession of the emails
and messages.
[8] On 2 April 2020, the Applicant's attorney addressed a lengthy 18 page
letter, excluding annexures, to the Respondent's attorneys. This letter
summarized the history of the disputes between the parties and particularly in
regard to the financial issues that had arisen between them. The letter dealt with
inter alia the failure on the part of the Respondent to pay the minor child's
medical aid and medical bills as well as school fees but also with the
Respondent's accessing the Applicant's private information. The letter also dealt
with various proposals made by the Respondent to resolve the financial impasse.
[9] On the same day, the Respondent attempted to contact the Applicant by
obtaining her new cell phone number from the minor. When the minor refused to
disclose the Applicant's cell phone number, he then emailed the Applicant
attaching various audio and visual messages he had accessed with the message
"Waiting for your call". This email was sent at 16h59 on that day, presumably
after the letter from the Applicant's attorney to the Respondent's attorney had
4
been received. This email was followed at 18h13 by a second email from the
Respondent to the Applicant in which he stated "S call me to discuss the way
forward. Ignoring my attempts to settle the impasse will only cause more
damage".
[10] It was not in dispute between the parties that the extent of the emails,
audio files and chats number some 12 209 items. In respect of the minor child,
her WhatsApp conversations when printed, fill over some 450 pages of content.
[11] The letter predictably provoked a response the very next day from the
Respondent's attorneys on 3 April 2020. It is in this letter that the Respondent's
access to both the email and WhatsApp messages and chats on the cell phone
accounts of both the Applicant and the minor were disclosed. In the letter, the
Respondent sought to justify his accessing of the information on the basis that
since the email account was part of his own email account and that since the cell
phone accounts were paid for by one of his companies, he was the ostensible
owner of the information.
[12] In the relatively short period of time between the accessing of the
WhatsApp conversations and images and audio files on 2 April 2020, the
Respondent was able by 3 April 2020 to instruct his attorneys to record that:
"5. The information on the phone displays extreme prescription medication
addiction and abuse, as well as regular recreational drug and
benzodiazepine abuse. Your client regularly participates in sordid sexual
encounters and orgys with various individuals, including married couples.
The exchanges go further detailing the additional income received by your
client, the holidays and weekends away enjoyed by her and paid for by
her paramour, and the funding of the current litigation, again undertaken
by her paramour. Further still, assertions abound of the desire to "take
out" our client.
6. Notwithstanding the above, our client has now evidenced the various
exchanges between your client and A, where she refers to our client as
"your asshole father" and other derogatory names. It further becomes
apparent that your client continually mocks our client and his immediate
5
family members, insinuating multiple negative connotations. It is apparent
that your client's conduct and assertions amount to an extreme case of
Parental Alienation, and the systematic degradation of our client, in the
eyes of the minor child. Your client has done little to uphold the image of
our client in A's eyes and has actually done the very opposite thereof.
7. It is denied that our client has attempted to intimidate, blackmail and/or
extort your client at any stage and the forwarding of this extremely
concerning information to your client, was to discuss the alarming
information that has come to his attention. Our client is concerned as to
your client's behavior in that she is the Primary Residency parent, and it is
our client's belief that it is certainly not in the minor child's best interests to
be exposed to the drug and alcohol abuse, and the numerous and various
sexual frolics which your client frequently engages. For the avoidance of
doubt, our client's email of yesterday, addressed to your client was
intended to address your clients parenting abilities, and we are instructed
to deny it was in any manner intended to strong arm her into accepting our
client's various proposals with regards to maintenance"
[13] In the same letter, the Respondent indicated that he would not be make the
cell phone (that had been used by the Applicant) or any of the information contained
on it available to the Applicant. The letter from the attorney contained the following:
"15. .....Our client will not disseminate, share or publish the information to
any unnecessary third party. However, to the extent that your client
proceeds with any action against our client, whether it includes inter alia
criminal charges and/or crimen injuria, our client reserves his rights in
respect of the relevant content insofar as it is relevant to his defence
and/or opposition and/or proceeding with an application for changing A's
primary residence and the exercise of the parties respective parental
rights and responsibilities, and the current or forthcoming litigation
process."
[14] Further correspondence was exchanged between the attorneys as the
Applicant attempted to obtain from the Respondent, an unconditional
undertaking that he would not distribute the material that he had accessed.
6
[15] The Applicant's attempts in this regard met without any success and the
approach of the Respondent following on from the undertaking that had been
given, was that the information was " most disturbing" and that the Respondent
was concerned for the wellbeing of the party's minor child in consequence of
this.
[16] The Applicant during this period laid criminal charges against the
Respondent for contravening Sections 86 and 87 of the Electronic
Communications and Transactions Act 25 of 2002. By the time this application
was heard on 1 September 2020, the National Prosecuting Authority had
considered these charges and had issued a nolle prosequi. In the circumstances,
nothing further need be said on this aspect. The Applicant also proceeded to
issue a Writ of Execution for arrear maintenance in the sum of R1 243 390.43.
[17] Notwithstanding that the Applicant had voiced her objections to the
Respondent's accessing, use or distribution of her and the minor child's private
information, the Respondent then distributed the information to not only the
Headmaster of the school which the minor child attends but also to the ex-wife of
one of parties with whom the Applicant had a relationship. It was argued by
counsel for the Respondent that the information had been furnished to this third
party, ostensibly in the interests of that third party's children also.
[18] On the basis that he was acting in the best interests of the minor, and
notwithstanding the various applications and counter applications 1 that the
parties were in the process of litigating against each other, on 21 July 2020, the
Respondent then sent an email to both the Headmaster at the school which the
minor child attends and a medical practitioner that the minor child consults. The
annexures to these emails were described by the Applicant in reply as follows:
"18.2.1 two pdf documents (476 pages) containing A's WhatsApp chat
1In the period from the time of the signature of the founding affidavit on 25 June 2020 and the hearing
of the application, the Respondent proceeded to launch an application in the Children's Court to try
and obtain an order that he be granted sole custody of his biological minor child.
history with me from 3 November 2015 to 28 August 2019;
7
18.2.2 a pdf document (199 pages) containing my WhatsApp chat history
with L N;
18.2.3 a pdf document (17 pages) containing my WhatsApp chat history
with A N; and
18.2.4 a pdf document (73 pages) containing A's WhatsApp chat history
with the Respondent."
[19] The text of the covering email is indicative of the Respondent's intentions.
Besides gratuitous remarks regarding the Applicant's private life, he sent all of the
above information - 765 pages for the Headmaster of the minor child's school
and the medical practitioner for the minor child to "trawl" through so as to
''provide me with an independent opinion as A's wellbeing is my primary
concern".
[20] This was the sequence of events before the granting of the interim order
on 28 July 2020. When the application was heard on that day, the Court did not
have the benefit of the Respondent's version. The Court, furthermore, in
consequence of the Respondent's refusal to make what he had accessed
available to the Applicant, was not able to consider or have regard to the totality of
the information and its import. It suffices to state that on what was presented to the
Court a case was made out2 for the granting of interim relief. By the time the
application on 1 September 2020 was heard, the Respondent's version and a
substantial portion of the information was all before the Court.
[21] The Respondent opposed the confirmation of the Interim Order and the
granting of a Final Interdict. The Respondent argued that the bringing of the ex
2 The requirements for the granting of an Interim Interdict were set out in in LF Boshoff Investments
(Pty) Ltd v Cape Town Municipality as follows:
"Briefly these requisites are that the Applicant for such temporary relief must show -
(a) That the right which is the subject matter of the main action and which he seeks to protect by
means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;
(b) that, if the right is only prime facie established, there is a well-grounded apprehension of
irreparable harm to the Applicant if the interim relief is not granted and he ultimately succeeds in
establishing his right;
(c) that the balance of convenience favours the granting of interim relief·, and
(d) that the Applicant has no other satisfactory remedy."
parte Application on the Urgent Roll was in the present circumstances improper,
8
and that the Applicant had in so doing, failed to make full and proper disclosure of
full and relevant facts which she ought to have and that she had sought and
obtained the Interim Order by stealth.
[22] The Respondent also argued that the Application by its nature was not
urgent, that the information concerned now constitutes "vital evidence" in the
Children's Court proceedings and that in any event, once the Respondent had
distributed the information the proverbial horse had bolted and the Applicant's
recourse is to be found in a claim for damages.
[22] I propose dealing with each of grounds raised by the Respondent in turn.
[23] Firstly, it is trite that in bringing an application ex parte, the Applicant is
required to demonstrate the utmost good faith. In this regard, our Courts have
held:
"Good faith is a sine qua non in ex parte applications. It extends also to
legal representatives. If any material facts are not disclosed, whether they
be willfully suppressed or negligently omitted, the Court may on that
ground alone dismiss an ex parte application. The Court will also not hold
itself bound by any order obtained under the consequent misapprehension
of the true position. Among the factors which the Court will take into
account in the exercise of its discretion to grant or deny relief to a litigant
who has been remiss in his duty to disclose, are: the extent to which the
rule has been breached; the reasons for the non- disclosure; the extent to
which the first Court might have been influenced by proper disclosure; the
consequences, from the point of doing justice between the parties, of
denying relief to the Applicant on the ex parte order; and the interest of
innocent third parties such as minor children, for whom protection was
sought in the ex parte application . The test is objective.
Even though partially successful an Applicant may be ordered to pay the
costs of the application if he has negligently failed to disclose material
facts. In Schlesinger v Schlesinger an order obtained ex parte was set
aside with costs on the scale as between attorney and client against the
original Applicant for displaying a reckless disregard of a litigant's duty to a
9
Court in making a full and frank disclosure of all known facts that might
influence the Court in reaching a just conclusion. If the failure to disclose is
the fault of the attorney acting for a party, he may be ordered to pay the
costs de bonis propriis.”3
[24] Whether or not the Applicant failed to discharge the obligation upon her to
make a full disclosure of all material facts is inextricably intertwined with the
issue of urgency. It is self-evident that the disclosure that is required must at all
times be material, more so depending on the degree of urgency that is attached
to the bringing of the Application.
[25] The Respondent argued that the Applicant had been aware of his
possession of the information since at least the beginning of April 2020. It was also
argued that the undertaking had been given at an early stage, in the terms that it
was given, and that although the Applicant had not accepted the undertaking in
the terms preferred, the exchange of correspondence over the period April, May
and June 2020 was indicative of the matter not being urgent. Put simply if the
matter was urgent, then it was urgent in April 2020 but certainly not by the end of
June 2020 at the earliest or the end of July 2020 when the application was heard
at the latest.
[26] In addition to challenging the urgency, the Respondent also argued that
the Applicant had omitted material information from her Founding Affidavit. While
it is so that the Applicant did not attach all the correspondence that had been
exchanged between the parties over the three month period, she did attach the
letter of 17 April 2020 from the Respondent's attorneys in which all the relevant
issues are set out and in particular the Respondent's qualified undertaking as
well as his intention to use the information in what he regarded to be the best
interests of the minor child.
[27] On a conspectus of all the information that is now before the Court, the
3 DE van Loggerenberg Erasmus, Superior Court Practice, Juta, Vol. 2, RS 13, 2019 D1-61, footnotes
omission of the letters that the Respondent points to as indicative of a failure on
10
the part of the Applicant to make a full material disclosure are not in my view
material. The Applicant made disclosure of what was in her possession and what
was relevant to the relief that she sought. What is clear is that the
correspondence that was exchanged between 2 April 2020 and at least the end
of June 2020 - on the part of the Applicant was directed primarily at obtaining an
undertaking that the information would not be distributed and on the part of the
Respondent was directed towards trying to settle the outstanding maintenance
and other issues.
[28] The Respondent also argued that the failure of the Applicant to disclose
the proceedings instituted by him in the Children's Court in her Founding papers
was deliberate. The Founding Affidavit was deposed to on 25 June 2020, before
the Children's Court proceedings had been instituted by the Respondent.
However, the Respondent's letter of 17 April 2020 which was attached to those
Founding papers made plain the Respondent's intention to use the information,
ostensibly in the best interest of the minor child. The Children's Court
proceedings are separate to the present proceedings and are simply another
arrow fired from the bow of the Respondent in his ongoing battle between
himself and the Applicant. I am of the view that the failure to specifically refer to
the Children's Court application by the Applicant is not material. The application
which the Respondent placed before that Court is nothing more than a repetition
of what was set out in the correspondence directed to the Applicant.
[29] The Applicant argued that the Respondent accessed the information in
both the email account as well as on the WhatsApp platform unlawfully. The
Respondent was at pains from the beginning of April 2020 to justify his
accessing of the information and his retention of the information. However he
came into possession of the information is not relevant for the purpose of
determining the present Application - whether or not that information is
admissible, relevant or even sufficient to enable him to obtain the relief that he
seeks in the Children's Court will not be decided by this Court. This is to be
omitted
decided by the presiding officer in the Children's Court when that matter is heard
11
which I was informed from the Bar will be on 17 September 2020.
[30] This is however not the end of the enquiry. While the information may
have been disclosed to the Children's Court and that Court will rule on the
admissibility of what was disclosed, there can be no doubt that there is no lawful
basis for the disclosure of the information in respect of either the Applicant or the
minor, to the wife of one of the third parties, the school Headmaster or medical
practitioner.
[31] The furnishing of the information to all the parties save the Children's
Court was done clearly with the purpose of humiliating and bringing into
disrepute the Applicant as well as the minor. The Respondent did so under the
guise of the "best interests of the child". There is no explanation as to why it was
in the best interests of the child for the almost 976 pages of information to be sent
to the Headmaster of the school or the medical practitioner.
[32] I do not intend in this judgment to quote the specific exchanges upon
which the Respondent relied to come to the conclusions that he did. These were
private communications which took place over a period of years between
consenting adults. The Applicant in her Founding papers specifically asserted:
"It is for this reason that I tell the Court that any of my recreational
activities, recorded on my iCloud account that may come to light in an
answering affidavit, have not taken place in the residence where A and I
reside and never have. I am discrete and keep these activities to myself."
"Further to this I have never and will never expose my children to these
activities."
[33] The Respondent denied this and indicated that he would "appraise the
Court of the transcripts detailing all of the exchanges between L N and the
Applicant and the Applicant and A N".
[34] It bears mentioning that the exchanges between the Applicant and adult
third parties, were on her personal email and WhatsApp platforms. From the
information made available to the Court and in particular the minor child's
12
WhatsApp conversation history, I was unable to find nor was counsel for either
party able to refer me to anything in the minor child's chat history from which it
could be inferred or was apparent that the minor child bore any knowledge
whatsoever of the Applicant's private communications with adult third persons in
respect of the material from which the Respondent drew his conclusions.
[35] What is apparent from the information is that the Applicant and the minor
have a close relationship and communicate freely and honestly with each other
on matters - in particular those that affect the minor. The Respondent 's ire at the
fact that the Applicant and minor child in their private conversations refer to him
in disparaging terms is misplaced. In each instance where the Respondent was
referred to in such terms, there is a cause - prevalently because the Respondent
attempted to impose his will upon the minor and when she did not acquiesce, he
would then, for example threaten to terminate payment for one of the minor's
extra mural activities. It is not unreasonable that the minor would be aggrieved at
this or that the Applicant would commiserate and be supportive of her given that
the Applicant has her own disputes with the Respondent.
[36] Although there are references to medication in single instances over the
four- year period that the information spans, most of these relate to prescription
medication. In the few instances where the reference in the information is to
narcotics - not considered prescription medication, these references were made,
on the whole, not by the Applicant but by the third parties.
[37] There is one direct reference in 2018 and some peripheral references
through the period by the Applicant. By the very nature of the email and
WhatsApp communications, these are not always expositive of the entire
discussion between the Applicant and the third parties concerned nor is the
context always easily discernable. The emails and messages upon which the
Respondent seeks to rely in order to justify his accessing and dissemination of the
information do not support the conclusions that he has drawn.
[38] The Respondent had the Applicant 's email in his possession from
September 2019 and the WhatsApp messages from 2 April 2020 and yet only
13
instituted the Children's Court application on 3 July 2020 when it became clear
that the Applicant was not going to settle her disputes with him.
[39] The Respondent relies on Section 28(1)(d) and Section 28(2) of the
Constitution of the Republic which respectively provide that "Every child has the
right to be protected from maltreatment, neglect, abuse or degradation" and " A
child's best interests are of paramount importance in every matter concerning the
child". If the Respondent is indeed acting on this basis then there is no
explanation as to why he delayed bringing the Children's Court application from
either September 2019 or April 2020 respectively.
[40] On the probabilities, I find that the Respondent knew that his accessing of
the Applicant and minor's private communications were an infringement of their
rights and once it was apparent that there would be no settlement and that the
proverbial battle would be joined, he then moved to institute the Children's Court
application in order to justify ex post facto his conduct in accessing the
information.
[41] The dissemination of the information to the Headmaster and the medical
practitioner on 21 July 2020 was done for no other reason than to try and
engender a cognitive bias in the minds of those persons against the Applicant and
possibly also the minor child. The Respondent was well aware that he had
instituted the Children's Court application and that this was the correct forum for
the consideration of the matter and a finding as to the veracity of the conclusions
drawn by him. It is self-evident that besides the invasion of the privacy of the
Applicant and the minor child so too was the adult third party's privacy invaded.
[42] Even if it were to be argued that the Application by the Applicant was not
urgent at the time that the Founding Affidavit was deposed to because of the
undertaking given by the Respondent, on 21 July 2020 when the Respondent
distributed the information, to my mind the urgency was then firmly established and
the fears of the Applicant as set out in the Founding Affidavit were realized. It is the
conduct of the Respondent in refusing to disclose to the Applicant what
information he had appropriated and then distributing the information that leads me
14
to the conclusion that the Respondent's argument that the Application is not
urgent is without merit and that in the circumstances of the case, the Applicant
made sufficient proper disclosure of all relevant facts to the Court.
[43] Turning now to whether or not the interim interdict should be confirmed and
made final. It was held in Liberty Group LTD and Others v Mall Space Management
CC4:
"[22] The law in regard to the grant of a final interdict is settled. An
Applicant for an interdict must show a clear right; an injury actually
committed or reasonably apprehended; and the absence of similar
protection by any other remedy. It was held by this Court in Hotz v
University of Cape Town that, once the Applicant has established the three
requisite elements for the grant of an interdict, the scope, if any, for refusing
relief is limited and that there is no general discretion to refuse relief."
[44] The Applicant relies, for the interdict that she seeks, on her rights contained in
Sections 10 and 14(d) of the Constitution. These sections frame these rights as
follows:
"10. Human Dignity
Everyone has inherent dignity and the right to have their dignity respected
and protected" and
14 Privacy
Everyone has the right to privacy, which includes the right not to have-
(a) …
(b) …
(c) …
(d) the privacy of their communications infringed."
[45] These rights may only be limited in terms of Section 36 of the
Constitution5. To my mind, the best interest of a minor child and having regard to
4 2020 (1) SA 30 (SCA) at paragraph [22), footnotes omitted.
5 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999
(1) SA 6 (CC) at paragraph [28] - "the right to dignity is a cornerstone of our Constitution. Its
the minor child's rights as set out in Section 28(1)(d) or 28 (2) of the Constitution,
15
would as a matter of common sense be valid grounds to derogate from the
Applicant's right to dignity and privacy. Having regard to the consideration of the
facts and circumstances giving rise to the present Application, as well as a
consideration of what the Respondent considered to be incriminatory material, I
find that for purposes of this Application, the Respondent has failed to demonstrate
any rational basis for the conclusions that he has drawn and on which this Court
as the upper guardian of the minor would, in her best interests, sanction a
derogation of the Applicant's rights.
[46] The Applicant has a clear right but has she suffered an injury in
consequence of the Respondent's distribution of the information? It seems to me
that once a constitutional right is breached and the holder of that right seeks to
enforce it, that ipso facto for so long as the breach persists or may persist then
this requirement is met. To hold otherwise would render the right to privacy
nugatory as the Applicant would have to "give up" that right in order to enforce it!6
[47] It was argued on behalf of the Respondent that even if the Applicant
establishes the first two requirements for the granting of a final interdict, that, in
consequence of the Respondent's dissemination of the information to the
Children's Court, the Headmaster and the medical practitioner - the proverbial
horse has already bolted and that the Applicant's remedy lies in a claim for
damages and for this reason the Application should fail.
[48] In considering whether or not an award for damages is an appropriate
alternative remedy, regard must be had to what the Applicant seeks to protect in
importance is further emphasised by the role accorded to it in s 36 of the Constitution which provides
that:
'The rights in the Bill of Rights may be limited only in terms of law of general application to the extent
that the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom…” Dignity is a difficult concept to capture in precise terms. At its least, it
is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of
all individuals as members of our society."
6 supra at paragraph [32] - " Privacy recognises that we all have a right to a sphere of private intimacy
and autonomy which allows us to establish and nurture human relationships without interference from
the outside community. The way in which we give expression to our sexuality is at the core of this
area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one
another, invasion of that precinct will be a breach of our privacy."
interdicting the Respondent. The Applicant seeks to protect personal rights that
16
are peculiar and specific to each individual. These rights are so prized by our
society that they are given the status of fundamental rights in the Bill of Rights in
the Constitution. While the rights are expressed in general terms in the
Constitution, each individual will have a personal understanding of their own
rights in this regard.
[49] Dignity is defined as “true worth”7 and privacy as being "being alone and
undisturbed”8. Both of these relate to the state of being of an individual and are not
as a matter of course, readily capable of being reduced to mere financial value.
[50] In Minister of Safety and Security v Tyulu9 the purpose of an award for
damages was expressed as follows:
"the primary purpose is not to enrich the aggrieved party but to offer him
or her some much needed solatium for his or her injured feelings"
[51] In Minister of Safety and Security v Seymour10 it was held in regard to the
quantification of awards for damages that:
"the assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty. The facts of the case
need to be looked at as a whole and few cases are directly comparable."
[52] An award of damages would be an appropriate remedy were the
infringement of the rights of the Applicant to have occurred in the past. In
circumstances where an infringement has occurred on one or more occasions in
the past but has ceased and will not occur in the future, it seems to be that an
award for damages would be an appropriate alternative remedy. The present
case is however distinguishable in that the Respondent has made plain through
the undertaking that he has given that he wishes to retain for himself, to be used
and distributed as and when he sees fit, the personal and private information of
both the Applicant and the minor child. The Respondent acts in his own interests
7 The Concise Oxford Dictionary of Current English, 7th Edition, Clarendon Press at page 268
8 supra at page 818
9 2009 (5) SA 85 (SCA) at paragraph [26].
and appears to be "indifferent to the harm" that the pursuit of his interests visits
17
upon either the Applicant or the minor child. In such circumstances, the bringing
of an action for damages would serve no purpose other than to mire the parties
in further litigation. I am persuaded that this would be the case in light of the
present situation that persists between the parties.
[53] An action for damages is in the present circumstances inappropriate and
would not stop the Respondent's use or dissemination of the information. The
only appropriate remedy available to the Applicant is the order that is sought.
[54] In the ordinary course of litigation, costs follow the result. In the present
application both the Applicant and Respondent argued for an award in their favour of a
punitive order for costs against the other.
[55] The present litigation is but one of the skirmishes in an ongoing battle
between the Applicant and the Respondent. The Respondent was forewarned that
the Applicant would approach the Court if he did not remove the qualification to his
undertaking. Notwithstanding this, the Respondent then proceeded to institute
proceedings in the Children's Court as well as to disseminate the information to third
parties.
[56] The present application was entirely avoidable had the Respondent properly
considered his position and conducted himself accordingly. On consideration of the
matter as a whole, I am of the view that a punitive order for costs is warranted and it is
for this reason, that I intend to make the Order that I do.
[57] In the circumstances, I make the following Order:
[57.1] Paragraph 3 of the Order granted on 28 July 2020 reading:
"3. The respondent is interdicted and restrained from copying,
using, sharing, disseminating, distributing and/or publishing the
applicants private and confidential information being, Contacts,
WhatsApp messages, Instant Messenger, MMS, I-Message, SMS,
10 2006 (6) SA 320 (SCA) at paragraph [17].
photographs, videos, and/or audio files emanating and/or
18
downloaded from cellular number […] and/or the […] account"
is confirmed.
[57.2] The Respondent is ordered to pay the costs of this Application, on
the scale as between attorney and client.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
HEARD ON: 01 SEPTEMBER 2020
JUDGMENT DELIVERED ON: 11 SEPTEMBER 2020
COUNSEL FOR THE APPLICANT: ADV. N STRATHERN
INSTRUCTED BY: ULRICH ROUX & ASSOCIATES
REFERENCE: MS. G ERASMUS
COUNSEL FOR THE FIRST RESPONDENT: ADV. J BRETT SC
ADV. R BOSMAN
INSTRUCTED BY: DI SIENA ATTORNEYS
REFERENCE: MS. A SHARDLOW
