Louw and Another v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Bertelsmann J
• Judgment Date: 27 August 2004
• Counsel: T Potgieter for the appellants. V Duba for the respondents.
• Hearing Date: 27 August 2004
• Citation: 2006 (2) SACR 178 (T)
• Court: Transvaal Provincial Division
• Docket Number: 8835/03

Bertelsmann J:

In this matter, all the witnesses are Afrikaans-speaking. The proceedings were conducted mainly in Afrikaans, although some of the cross-examination was conducted in English. Because of the fact that the defendants' address was in English, I will give my judgment providing the reasons for my ruling the day before yesterday, on the merits, in English. I E will deal with quantum in Afrikaans.

The parties in this matter are Annelè Louw, the first plaintiff, an adult businesswoman, residing according to the pleadings, at 601 Sieraad, 131 Relly Street, Sunnyside, Pretoria. Her husband, Johannes Jakobus Louw, the second plaintiff, is an adult consultant residing at the same address. The first defendant is the Minister F of Safety and Security. The second and third defendants are, respectively, Inspector Van Niekerk and Sergeant Marius de Beer, and the fourth and fifth defendants were Mr Paul Jakobus David Badenhorst, who was called as a witness in these proceedings, and Professor Willem Jakobus du Plooy, who did not testify. The case against fourth and fifth defendants was settled. G

The plaintiffs claimed damages against the first to (and including) the third defendants (to whom I will refer collectively in this judgment as the defendants), on the grounds of an unlawful arrest executed by Sergeant De Beer and Inspector Van Niekerk while on duty and in the service of the first defendant. They each claim R500 000 plus costs. In order to understand the background to the H matter, it is necessary to give a short chronology of the occurrences.

During December 2002 and January 2003, the first plaintiff managed her father's business, which consisted of, inter alia, the conduct of a guest-house, Lodge Heimat, and the letting of certain flats and buildings known as Sieraad and I Hooggeraad in Sunnyside, as well as a guest-house in Berea. These businesses were conducted from an office on the ground floor of Sieraad. Mrs Badenhorst, the spouse of the fourth defendant, was originally the manager of the businesses, Sieraad and Hooggeraad. As part and parcel of her remuneration, she and her husband occupied J

Bertelsmann J

a flat in Sieraad at a reduced rate. This flat was on the fifth floor of A the building, number 502.

Mr Wessels, the father of the first plaintiff, was dissatisfied with her performance. He was also involved in a dispute with a certain Professor Du Plooy, the fifth defendant, who at one stage was a partner or a member of Lodge Heimat, but had ceased to be so at the time of the relevant events. B

Because of his dissatisfaction with the performance of Mrs Badenhorst, whose first name is Glenn, Mr Wessels decided to terminate her employment. He did so by way of a letter, dated 4 January 2003, which reads as follows: C

'Beste Glenn,

Sieraad en Hooggeraad regspersone

Geliewe kennis te neem dat jou posisie as bestuurder van bogenoemde regspersone hiermee summier beëindig word. Jy word versoek om onmiddellik by ontvangs hiervan, alle stukke en artikels wat op die regspersone se sake betrekking het, aan Annelè Louw te oorhandig, D ingesluit die volgende:

(a)

Alle boekhoukundige rekords, rekenaardrukstukke, finansiële state, rekeningkundige aantekeninge en finansiële brondokumente;

(b)

Alle tjekboeke, deposito boeke, kwitansieboeke en bankstate;

(c)

Die rekenaar, drukker en alle gepaardgaande toebehore. Jy sal toegelaat word om privaat goed op die rekenaar onder Annelè se toesig te verwyder; E

(d)

Die faksmasjien;

(e)

Alle sleutels van die kantoor op die grondvlak van Sieraad.

Indien jy privaat goed in die kantoor het, moet dit asseblief verwyder word.

Hierdie stap word as voorsorg in belang van die eienaars en die twee geboue gedoen, en jou samewerking word versoek. Indien ek dit F nodig vind, sal ek die regspersone se ouditeurs opdrag gee om die rekeningkundige aantekeninge na te gaan en daaroor verslag te doen. Jy sal insae in so 'n verslag kry. Tot die mate wat verduidelikings van jou verlang word, moet jy asseblief ook behulpsaam wees. Jy sal besef dat jy volle verantwoordelikheid vir jou bestuur en finansiële bestuur van die regspersone se sake moet dra vir die tydperk wat eindig G op die tydstip van volle oorhandiging soos in hierdie brief versoek.

Die uwe

L G T Wessels

Voorsitter Sieraad en Hooggeraad regspersone.' H

This letter was signed at the request of Mr Wessels by the first plaintiff. On the morning of 4 January 2003, the fourth defendant, Mr Badenhorst, was putting the finishing touches to his wardrobe, but he was already fully clothed. The first plaintiff called at his flat door which was open, according to Badenhorst's own I evidence. As had been the practice in the past (confirmed by this witness), first plaintiff walked in, said 'good morning' and proceeded to the computer which was in a second bedroom that had been converted into an office. Here first plaintiff sat down to work. J

Bertelsmann J

From his evidence it is clear that Mr Badenhorst had no objection whatsoever to her presence or her working on the computer. He A also had no idea what she was doing.

During the afternoon of 4 January 2003, a Saturday, the first plaintiff chose to present the letter of dismissal, and to demand the computer, after the Badenhorsts had returned from a funeral earlier that day. A fax machine had been installed in flat 502 a day or two B earlier. It was the property of Lodge Heimat. It was ordinarily used in the downstairs office. It had been taken to the Badenhorsts' flat solely because the connection in the office had been cut off, and Mr Wessels had wanted to send some urgent letter to it. The first plaintiff's demand for delivery of the computer and her presentation of the letter of dismissal led to a heated exchange between her and Mr C and Mrs Badenhorst. Mr Badenhorst was understandably angry and upset, because the tenor of the discussion amounted to an accusation by the first plaintiff that the Badenhorsts had been dishonest. He refused to hand over the computer or any other item before the following Monday, 6 January 2003. D

Mr Louw, the second plaintiff, joined his wife a little later and attempted to soothe the frayed tempers. The fact that he tried to calm the situation down was at all times common cause. Eventually, the first plaintiff noticed the fax machine and, at her insistence, it was removed there and then by the plaintiffs in order to return it to the office. The second plaintiff later testified that Mrs Badenhorst had E consented to the removal of the fax machine. This evidence was never disputed. Mrs Badenhorst was, significantly, not called as a witness and Mr Badenhorst was not in a position to comment on what his wife had said to the second plaintiff. Some time after the removal of the fax machine, Mr Badenhorst's nextdoor neighbour, who had overheard the F altercation, commiserated with Mr Badenhorst about the first plaintiff's actions, and suggested that Mr Badenhorst should report this to the police. Mr Badenhorst was persuaded that this was a good idea. He phoned the police and complained about first plaintiff's allegedly harassing behaviour. The police sent a squad of two cars and four persons to deal with this neighbourhood squabble. Constables Ally G and Moodley, Sergeant De Beer and Inspector Van Niekerk descended on the scene of the purported crime. Two of them were armed with R5 assault rifles. They listened to the story that Mr Badenhorst told them and the complaints about the rude behaviour during removal of the fax machine, which he alleged had occurred without permission. Sergeant De H Beer then enquired whether the first plaintiff had exhibited a court order authorising her to remove the item. On being informed that this was not the case, he allegedly concluded that a theft had been committed. He and Constable Moodley...