Cof A
(CIV)No.21/03

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

THABO
MAKAKOLE Appellant

And

VODACOM
LESOTHO (PTY) LTD Respondent

Held at
Maseru

CORAM:
Plewman, JA

Melunsky, JA

Kumleben, AJA

Summary

Delict -
Action under the actio injuriarum based on an alleged infringement of
privacy - exception taken to declaration - allegations
inadequate as
regards wrongfulness (unlawfulness) and fault (animus injuriandi) —
exception upheld on appeal.

JUDGMENT

KUMLEBEN,
AJA

The
plaintiff, now the appellant, sued the defendant, now the respondent,
for damages. The latter lodged an exception to the

2

declaration.
It was upheld by Guni J. The correctness of this decision is now on
appeal.

The cause
of action is thus pleaded in the declaration:

" -4-

In 1997 the Defendant wrongfully and unlawfully published and made
available on request to one MR. EPHRAIM GAMA information containing

cell phone numbers and dates on which calls were made to or received
by Plaintiff from one MRS LIPALESA GAMA.

-5-

As a result of this invasion of Plaintiffs privacy the latter was
unduly dragged into costly and embarrassing litigation by MR.
EPHRAIM
GAMA in CIV/T/651/97 in the High Court where inter alia the said MR.
EPHRAIM GAMA claims M50,000.00 from present Plaintiff.
This case is
still pending in the High Court.

- 6-

A further consequence of present Defendant's action resulted in the
break up of Plaintiffs marriage. Plaintiffs wife filed divorce

proceedings in CIV/T/3 62/97 and the divorce was eventually granted
in the High Court. Plaintiff lost the love, affection, support
and
companionship of his wife as a result of that divorce.

- 7-

Defendant's action was unlawful and wrongful and resulted in
Plaintiff suffering damages in the sum of M500,000.00 which he holds

Defendant liable to pay."

The
exception, though not concise in its terms, is that the declaration
does not disclose a cause of action and it is on this footing
that
the matter has been dealt with throughout.

3

The
appellant has elected to found his cause of action of an "invasion
of privacy." Our law under the actio injuriandum
recognises a
personality interest, of which privacy is a component and in certain
circumstances confers an enforceable right of
action: the actio
injuriarum protects a person's dignitas and dignitas embraces
privacy" per Harms AJA in Jansen van Vuuren
and Another NNO v
Kruger 1993(4) SA 842(A) 849D. For this delictual remedy a plaintiff
must allege and prove a wrongful and intentional
infringement of
another's right to privacy.

Turning
to the first of these two requirements for delictual liability:

"Wrongfulness is determined according to the general criteria of
reasonableness. Conduct is wrongful or unlawful if it is

unreasonable, in other words, when in the light of all the
circumstances the defendant is expected to behave in a manner which

will not harm the plaintiff." JOUBERT The Law of South Africa'
Volume 8 paragraph 50.

Paraphrased
what is tersely pleaded in this regard in paragraph 4 of the
declaration is that respondent disclosed to Mr. Gama from
its records
details of the telephone calls made by the appellant to Mrs Gama and
received by him from her. But this could only
amount to a wrongful
act as affecting the appellant, or indeed in any respect at all, if
such a disclosure of information was unauthorised
or irregular. This
would be a justifiable inference if a relationship of customer or
client existed

4

between
Mrs Gama and the respondent or at least some allegation as to who was
the authorised possessor or user of the cell phone
concerned. Such
essential averments do not feature in the declaration. If Mr. Gama
was the client and authorised user, he would
on the face of it be
entitled to the information with which he was provided. To overcome
this lacuna, Mrs Lethola, who appeared
for the appellant, sought to
rely on the words, "wrongfully and unlawfully" that are
alleged in this paragraph 4. But
they cannot cure the defect. They
are conclusions of law (unnecessary if the necessary facts are
alleged) or at best for appellant
"secondary facts", that
is, inferences from primary facts (which in this case have not been
pleaded). On this narrow
ground the declaration must be held to be
wanting.

Turning,
however, to the further delictual component, fault: In an action
under the actio injuriarum this requirement calls for
a deliberate
intention to cause injury to a particular person, in other words an
act "designedly done in contempt of another
which infringes his
right to privacy". (See Neethling's Law of Personality paragraph
4.1 page 55 -and the decisions the author
cites.) In reference to the
present case, the declaration ought therefore to have set out facts
that establish, directly or implicitly,
that the respondent by the
disclosure intended to impinge upon the appellant's right to privacy.
Such averments are conspicuous
by their

5

absence.
In fact the inference to be drawn from what has been averred is
rather that the person or persons concerned at Vodacom
were unaware
of the purpose for which the information was sought or indeed of the
existence of the appellant.

It
follows that the exception was correctly upheld in the court a quo.

The
appeal is dismissed with costs. Delivered at Maseru this 7th day of
April, 2004

M
Kumleben

Acting
Judge of Appeal

I agree:

C.
Plewman

Judge of
Appeal

I agree:

L.
Melunsky

Judge of
Appeal