Court name
High Court of eSwatini
Case number
3118 of 2005

Dlamini v Radio Shop (3118 of 2005) [2011] SZHC 112 (28 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 112













IN THE HIGH
COURT OF SWAZILAND



HELD AT
MBABANE



Civ.
Case No. 3118/05







In the matter
between







MAKHOSAZANA
DLAMINI
…................................................................................Plaintiff



vs



RADIO SHOP
…................................................................................................Defendant







CORAM Mamba J



FOR Plaintiff
Mr. S. Dlamini



FOR Defendant
Mr. S. Mamba







JUDGMENT



28th
April, 2011







[1] It all
started with the plaintiff purchasing an electronic gadget or item
described as a Television game from the defendant for a sum of
E250.00. This gadget turned out to be not fit for (the declared)
purpose.







[2] The
plaintiff who is an adult Swazi female person lives in Mbabane. She
is a holder of a BA Degree from the University of Swaziland and works
as a school teacher in one of the local schools. She is a chorister
as well.











[3] The
defendant is a retail business establishment operating a general
dealership in Manzini near the bus rank in that city.











[4] On or
about 30th July 2005, the plaintiff approached the
defendant's premises aforesaid and offered to purchase an electronic
gadget or product which has been described in this proceedings as a
Television game; a rather nondescript appellation for a contrivance
which enables one to play games with the aid of a Television set. The
gadget to which I shall hereinafter refer to as a Television game
was, according to the plaintiff said to be brand new and functional.
By the latter I understand the plaintiff to be saying that the
Television game was said to be fit for the purpose for which it was
made and for which it was being sold by the defendant and purchased
by her. The plaintiff was served or attended to by an employee known
as Chester.











[5] These
representations were made to the plaintiff by the defendant's
employees at the said business premises and acting within the course
and scope of their employment or as servants or agents of the
defendant. In making these representations, the defendant's servants
or employees intended that they be believed and acted upon by the
plaintiff. The assertion or representation that the Television Game
was working or functional was a material or essential term of the
agreement and but for it, the plaintiff would not have purchased the
Television game. In other words, she was induced by the said
representations to purchase the item.











[6] The
plaintiff purchased the Television game for her minor son. She
testified that after taking the Television game home she discovered
after showing it to her son, that it was not brand new and was
non-functional and this gravely disappointed her son and gravely
embarrassed her. She also stated that when the said representations
were made by the defendant's employees, the employees knew that such
representations were false and the Television game was not fit for
the declared purpose.











[7] For the
next four days she travelled by public transport between Mbabane and
Manzini in an attempt to be either given a new and functional
Television game or have the one given to her fixed in a workmanlike
manner. Neither of these things happened. Instead the defendant's
servants lied to her and publicly humiliated her in these respects:











"14.2
Sending her from one technician to another as if to assist her in
getting the television game to working order; 14.3 Lying to her that
she was being referred to the manager who would reimburse the
purchase price paid by her when she was actually being referred to
other technicians;







14.4 Making
her wait for extended periods of time whilst they attended to their
customers."







[8] Initially
when the plaintiff came to complain to the defendant, Chester
acknowledged that the item had been purchased from the defendant and
that it was not working. This was on Monday, just two days after the
purchase. She was made to leave the Television game at the shop and
instructed to collect it on the following day when it would have been
repaired or fixed by the defendant. She agreed to this but when she
returned the next day, it had still not been fixed and again Chester
asked her to return the next day which she did. But again the gadget
had not been put in order and she then demanded her money back and
cancelled the sale. This was after the servants of the defendants
refused to test the Television game and demonstrate to her that it
had been repaired and was now functioning as expected. Eventually a
technician employed by defendant admitted to her that the Television
game was faulty but he could not identify the malfunction or fault.
She was asked to return the next day once more. Surprisingly though,
a day later on 5th August, 2005 another employee of the
defendant known as Ray gave the Television game to the plaintiff
saying that it had now been fixed. But alas again this was not true.
She took it back and cancelled the sale and unsuccessfully demanded
her money back.







[9] In its
plea, the defendant first raised a special plea stating that the
"Radio Shop is not a firm .. and further lacks the necessary
power to sue and be sued in its own name but is merely a trade name
of a private company called Jasha Investment (Pty) Ltd The rest of
the plea - on the merits - was a blanket denial of the transaction
ever taking place between the parties. The special plea together with
the claim for legal fees by the plaintiff were both abandoned by the
respective parties at the start of the hearing.







[10] The
defendant led the evidence of Chaken Makama who worked as a Salesman
and technician at the defendant's premises. His evidence was
basically that electronic or digital items are normally tested at the
shop before being given to purchasers. He also testified that
receipts are also usually given to such purchasers. He also confirmed
that Chester was one of the employees of the defendant at the
relevant time but had left in 2007. He was unable to deny the
evidence of the plaintiff in anyway and I accept it as true. The
plaintiff gave her evidence in a straight forward manner. She was
able to tell the court what occurred on each day and with whom she
interacted at the defendant's business. It was a blow by blow account
of her experiences both at the defendant's shop in Manzini and in her
house in Mbabane where she attempted to use the Television game on
her Television set. She has, in my judgment proven or established
that:








  1. Defendant's
    employees made the said representations to her that the Television
    game was functional or working.



  2. The said
    representations were made by them with the sole aim that she should
    believe them and act on them by buying the television game.



  3. She believed
    them and acted on them and purchased the Television game.



  4. The said
    representations were false and the defendant knew or must have known
    them to be false.



  5. The plaintiff
    was induced by the false representations to purchase the item, to
    her loss and prejudice.



  6. She lawfully
    resiled from the contract, returned the Television game to the
    defendant and demanded her refund. She has not been repaid the
    purchase price despite demand.












[11] From the
above facts, it is my considered view that the plaintiff has
established her case in respect of her claim for a refund of the
purchase price and transport costs. The said costs were incurred
because each time she spoke to the defendant's servants, she was
given a firm undertaking that the Television game would be ready the
next day and she must return to get it. These were false promises and
were made at the very least without any regard to their veracity or
probity. She is entitled to the refund for E250.00 plus the transport
costs she incurred in the sum of E 150.00; in all totaling E400-00.







[12] I now
turn to examine the issue of damages in respect of the infringement
or impairment of her dignity.







[13] Besides
the common law to which I shall return and concentrate presently,
section 18(1) of our Constitution makes the following quaint and
absolute prohibition: "The dignity of every person is
inviolable." In contrast to this provision, s14 of the
Constitution of South Africa starts with an affirmation that
"everyone has inherent dignity" and then goes on to provide
that everyone has a right to have his dignity respected and
protected.







[14] Dignity
as a notion or concept is very difficult to define. It relates to
one's self worth; the very essence of being human. In the National
Coalition for Gay and Lesbian Equality v of Justice Ackermann J
referred to the right to dignity as the "Cornerstone" of
the South African Constitution. See also Minister of Police v Mbilini
1983(3) SA 705(A) at 715-716







[15] In a
paper entitled "Dignity and Substantive Equality", R. O’
Connell states: "That dignity is a difficult concept to define
is a commonplace, but we should note that some of these Judges made
determined efforts to give a content to this concept. In particular
in the landmark case of Law v Canada where lacobucci J. discussed the
idea and he is worth quoting at length;



" Human
dignity means that an individual or group feels self-respect and
self-worth. It is concerned with physical and psychological integrity
and empowerment. Human dignity is harmed by unfair treatment premised
upon personal traits or circumstances which do not relate to
individual needs, capacities, or merits. It is enhanced by "laws
which are sensitive to the neeHs" cajpacfties, inci merits of
different individuals, taking into account the context underlying
their differences. Human dignity is harmed when individuals and
groups are marginalized, ignored, or devalued, and is enhanced when
laws recognized a full place of all individuals and groups within
Canadian society. Human dignity within the meaning of the equality
guarantee does not relate to the status or position of an individual
in society per se, but rather concerns the mariner in which a person
legitimately feels when confronted with a particular law. Does the
law treat him or her unfairly, taking into account all the
circumstances regarding the individuals affected and excluded by the
law?"







This sets out
a fairly detailed analysis of what dignity means in the Canadian
context. It does not eliminate scope for disagreement however. In
particular, it asks not merely how the claimant feels she or he has
been treated but also whether that feeling is "legitimate",
whether there is a reasonable basis for a feeling that one's dignity
has been assaulted".







[16] Jonathan
Burchell, "Personality Rights and Freedom of Expression. The
Modern Actio injuriarum," Juta & Co 1998 at 329 states as
follows:



"The
rights to equality and privacy, like so many other human rights, are
rooted in respect for human dignity. Infringements of the right to
equal treatment of persons who may form part of historically
vulnerable groups or other persons, and invasions of their privacy,
are particular manifestations of group or individual indignity.



Protection of
dignity under the common law has the same supple, overarching quality
as its constitutional counterpart. This synergy can only serve to
enrich both complementary branches of the law.



The Appellate
Division in De Lange v Costa, 1989(2) SA 857 (A), has authoritatively
laid down the general test for determining dignity under the common
law:











(a) The
plaintiff's self-esteem must have been actually (subjectively)
impaired and











(b) a person
of ordinary sensibilities would have regarded the conduct as
offensive (tested by the general criterion of unlawfulness -
objective reasonableness).







The ultimate
criterion determining an impairment of dignity is not the
sensibilities of the plaintiff, nor that of the hypersensitive
individual, but that of the reasonable person." I, with respect
agree and endorse this exposition of the law.







[17] In an
action based on injuria, a litigant must establish three
essential elements or requisites namely :







"i. An
intention on the part of the offender to produce the effect of the
act;







ii. An overt
act which the person doing it is not legally competent to do; and
which at the same time is







iii. An
aggression upon the right of author, by which aggression the other is
aggrieved which constitutes an impairment of the person, dignity or
reputation of the other" (per Smallberger JA in De Lange
(supra).











See also R v
UMFAAN, 1908 TS 62, WHITTAKER v ROOS AND BATERMAN; MORANT v ROOS AND
BATERMAN 1912 AD 92 at 130, R v CHIPA AND OTHERS, 1953 (4) SA 573(A)
at 576. Once a plaintiff establishes the second element stated above,
ie the overt wrongful act, the intention to injure the plaintiff by
the defendant is presumed. This presumption is of course rebuttable.
Where such rebuttal is wanting, the plaintiff then has to prove that
he suffered an impairment of his dignity or self-worth. "This
involves a consideration of whether the plaintiffs subjective
feelings have been violated, for the very essence of an injuria is
that the aggrieved person's dignity must actually have been impaired.
It is not sufficient to show that the wrongful act was such that it
would have impaired the dignity of a person of ordinary
sensitivities. Once all three requisites have been established, the
aggrieved person would be entitled to succeed in an action for
damages, subject to the principle de miniminis
non curat lex
(De Lange (supra) at 860)." And in
Botha v Pretoria Printing Works Limited, 1906 TS 710 at 714 INNES CJ
stated:



"When one
man slaps another's face there may be no great pain inflicted and no
doctor's bill; but the insult offered to the man attacked is a thing
which the court is justified in compensating by substantial damages.
If courts of law do not intervene effectively in cases of this kind,
then one of two results will follow - either one man will avenge
himself for an insult to himself by insulting the other, or else he
will take the law into his own hands. I do not think that the
principle of minimizing damages in actions of injuria is sound. Where
the injury is clear, substantial damages ought as a general rule to
be given."











[18] I observe
that although in the above cited quotation the learned CJ refers to
insult as being the offending conduct he was still talking about an
impairment of dignity. Such insult or conduct impacts on one's
self-worth or dignity. An insult is an invasion of or an affront to
one's dignity. Jonathan Burchell (supra) at 331 states:



"For some
years there has been controversy over whether contumelia
is a requirement for the remedy for impairment of dignity.
Contumelia was
variously defined in terms of 'insult' or 'intention to insult or
impair dignity'. In so far as the concept of contumelia
included 'intention', it was superfluous, as the
requirement of animus injuriandi
covered intention in all its forms. In so far as
contumelia meant
'insult' it emphasized an aspect of dignity, but was far too
restrictive formulation of the test for determining 'dignity',
especially as a narrow definition of 'dignity' could unduly inhibit
the potential of the actio
injuriarum
to complement the protection of human dignity
under s 10 of the Constitution. As Van den Heever JA in Foulds v
Smith observed,' ...too much emphasis in the actio
injuriarum
is laid on contumelia'
in the sense of 'insult'.



Smallberger JA
in the passage from De Lange, correctly, does not even mention
contumelia, in
whatever of the two senses it had been used in the past.



The most
recent reference to contumelia
is in Brandon v
Minister of Law and Order
where contumelia
was required as an element which had to be pleaded in a
wrongful arrest case. But, it is worth noting that the judge in
Brandon defined contumelia as
'the impairment of subjective feelings of dignity and self-respect'.
This approach is entirely compatible with that taken in De
Lange
as in neither Brandon
nor De Lange did
the court require 'insult' to be pleaded or confine the remedy to
'insult'. There is no need to add insult to injuria.
What is involved in the remedy for impairment of dignity
is subjective impairment of dignity which also infringes objective
limits of reasonableness. That is not to deny that many cases of
impairment of dignity will involve personal insult, but to emphasize
that the remedy is broader than insult cases".











[19] The
impairment of dignity may be constituted by words or conduct. In the
present case it was both. The plaintiff was repeatedly told a lie;
first that the Television game was new and fit for use or functional;
secondly that it had been properly fixed. She was publicly humiliated
by being made to attend to the defendant's business on a daily basis
for about four successive days. At the shop, she was either made to
wait for long periods of time unattended by the defendant's employees
or shunted from one employee to another aimlessly. This conduct and
words by the defendant's employees did subjectively injure the
plaintiff in her self-esteem or dignity. Any reasonable man in her
position would have been so injured too.











[20] The value
of the item purchased by the plaintiff may seem miniscule but the
most relevant factor or consideration herein is the conduct of the
defendant following that transaction. The plaintiff cancelled the
purchase and returned the Television game to the defendant and is
therefore entitled to a refund of the purchase price thereof.
Regarding the offending words and or conduct by the defendant's
agents, the following points are to be noted:




  1. The
    defendant's conduct was not just a simple incident, it was persisted
    in over a period of four days until the plaintiff gave up and
    resiled from the sale.



  2. The defendant
    has not offered an apology to the plaintiff for its acts or conduct
    and



  3. When the
    plaintiff cancelled the sale and returned the Television game arid
    demanded her refund, the defendant failed to refund her the money
    she had paid.



  4. The injury
    suffered by the plaintiff did not just end at the defendant's place
    of business in Manzini. She had to endure this indignity before her
    own son each time she came home and told him she had bought him a
    Television game, when the gadget turned out to be not working.












[21] Private
businesses or entities such as the defendant are there to serve the
public. The public expect to be and should be treated with dignity
and respect by such entities. This did not happen in this case. An
impairment of one's dignity in almost all cases, may never be
adequately compensated in monetary terms. This is so because it is
essentially a matter grounded on injured feelings. The extent of such
injury and its monetary compensation is value laden and thus bound to
vary from case to case, generation to generation, jurisdiction to
jurisdiction and so on. I have not had the benefit of comparable
local cases to assist me in this case. None was referred to rne and
my preliminary research yielded none.











[22] In the
present case the plaintiff has claimed a sum of E10,000.00 for the
impairment of her dignity. I have referred to her personal
circumstances and her role or status in life and also to the nature
of the indignity she was made to endure. That she has been vindicated
by this court - by finding in her favour - should act as an emotional
measure of assuaging her injured feelings. As Nathan CJ in Kunene v
Shabangu, 1979 -1981 SLR 185 at 187C, quoting Greenberg J in Innes v
Visser, 1936 WLD 44 at 45; reminded us that "the figure of
justice carries a pair of scales, not a cornucopea or horn of
plenty." I hold that taking into account all the relevant
factors herein, she is entitled to an award of E8,000.00 in respect
of the impairment of her dignity.











[23] In the
result, I make the following order:











(a) The
defendant is ordered to pay to the plaintiff the sum of E400.00;
being in respect of the purchase price (E250.00) paid by the
plaintiff and E150.00 in respect of her traveling expenses.



(b) The
defendant is ordered to pay to the plaintiff a sum of E8000.00 as
damages for the impairment of her dignity plus interest thereof at
the rate of 9% per annum with effect from 28th April,
2011.



(c) The
defendant is ordered to pay the costs of this action.















MAMBA J