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Letsielo v Khobethi and Others (C OF A (CIV) NO. 10/2009)
IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) NO. 10/2009
In the matter between:
FRANCINA MALEFU LETSIELO APPELLANT
ERNEST LETHOLA KHOBETHI 1ST RESPONDENT
MINISTRY OF HOME AFFAIRS 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
CORAM: SMALBERGER, JA
HEARD : 14 APRIL 2010
DELIVERED : 23 APRIL 2010
Delict – injuria – alleged invasion of appellant’s right to privacy.
The appellant claimed damages arising out of the first respondent’s disclosure of confidential information concerning the appellant to a court in South Africa.
The appellant alleged that the disclosure was given in breach of the first respondent’s oath of secrecy made in terms of Regulation 106 of the Public Service Regulations and that as a result her claim for maintenance in the said court had been removed from the roll.
The information disclosed did not impair the appellant’s dignity or reputation, the test in this regard being an objective one;
The first respondent did not disclose the information for private purposes and there was therefore no breach of his oath of secrecy;
The first respondent did not act wrongfully or unlawfully, or with animus injuriandi;
The information so disclosed related only to matters germane to the appellant’s maintenance claim that she would have been obliged to place before the court;
The appellant’s claim was rightly dismissed by the High Court and the appeal was accordingly dismissed.
The court expressed its concern at the delay of almost fourteen years between the service of summons and the delivery of judgment in the High Court due, at least in part, to the fault of the parties or their legal advisers.
 At the material times the appellant and the first respondent were both employed by the Ministry of Home Affairs (the second respondent) as personnel officers, she as an assistant and he as the principal officer. The litigation between the parties commenced in the High Court by summons served on the respondents in December 1995, the matter seems to have come to trial during or about 2008 (the date does not appear in the record before this Court but the heads of argument in the court a quo were presented in that year) and judgment was delivered by Mofolo AJ on 10 March 2009. It is of great concern to us that there was a lapse of almost fourteen years between the service of summons and the delivery of judgment in a relatively straightforward matter. This was, at least partly, due to the fault of the parties or their legal representatives, a matter that will be commented on later.
 The appellant’s husband, Lazarus Letsielo, was resident in Vereeniging, South Africa during 1994 and 1995. The appellant caused proceedings to be instituted against him in the Vereeniging Magistrate’s Court for maintenance for herself and her children in 1995. The nature of the proceedings does not appear from the record but the appellant in her evidence in the Court a quo mentioned that the public prosecutor in Vereeniging had
“the case for both sides from both parties …… And he would lay out the cases before the presiding officer”.
It seems to be likely, therefore, that the Vereeniging Court was concerned with a maintenance enquiry according to statutory provisions in force in South Africa, but it is not necessary to reach a firm conclusion on this point. The matter in the Magistrate’s Court did not proceed. What little information there is about the proceedings shows that it was removed from the roll by the Magistrate due to the fact that the appellant was a Lesotho national. There is a note from that Court dated 16 February 2006 to this effect. The note also informs the recipient that the records of all proceedings removed from the roll are destroyed after ten years. In the present proceedings it was not disputed that the Magistrate’s Court did not have jurisdiction to deal with the matter on the grounds stated in the aforesaid note.
 The essential averments in the appellant’s declaration are the following:
That the first respondent was the custodian of all confidential documents relating to the appellant and all other employees of the Ministry;
That he had taken an oath of secrecy in terms of the Public Service Regulations (“the Regulations”) and he owed the appellant the duty of secrecy;
That he “wrongfully and intentionally/ negligently” removed certain documents from the Ministry, forwarded copies to an address in South Africa, that the documents disclosed private and confidential information about the appellant and that he thereby breached the oath of secrecy;
That the aforegoing resulted in infringements of the appellant’s personality, rights of privacy, dignity and reputation and resulted in her suffering damages in an amount of M67 000.
 The documents which were forwarded to South Africa, according to the declaration, consisted of a letter from the first respondent dated 24 June 1995 and copies of the appellant’s pay slips. They were, it was alleged, used in evidence against her and, presumably as a result, it was alleged that she lost her case against her husband. The damages of M67 000 were itemised as follows:
“(a) Breach of oath of secrecy and prejudice flowing
therefrom: M42 000
(b) Infringement of personality right of privacy : M15 000
(c) Infringement of the personality right of dignity
and reputation: M10 000.”
The damages were claimed against the first respondent, alternatively the second respondent.
 I will later deal with the respondent’s contentions. At this stage it is appropriate to have regard to the declaration in order to decide what averments were required to sustain the appellant’s cause of action and I do so only to show what facts had to be established at the trial. The formulation of the plaintiff’s claim appears to me to be inadequate in the sense that certain essential allegations have been omitted from the pleadings but no exception was taken to the declaration.
 Firstly, the oath of secrecy relied upon in the declaration is not as wide and unqualified as the appellant would have it in terms of the Public Service Regulations. The relevant provisions, contained in Regulation 106 (and not Regulation 105 as alleged in the declaration), provide that a public servant (or officer) is required to make a declaration that he will not:
“reveal or use for private purposes, any information coming to (his) knowledge or acquired by (him) or the nature or the contents of any document communicated to (him), either in the course of (his) duties or in (his) capacity as an officer, otherwise than in the proper discharge of (his) duties as authorized by law or competent authority.”
According to the marginal note, this declaration is the “oath of office and secrecy”. An officer is not prohibited, by his oath of secrecy, from revealing information generally or for all purposes: the prohibition is limited to “private purposes”. Assuming, without deciding, that the first respondent owed the appellant the duty of secrecy, as alleged, the duty would not have been breached, in terms of the Regulations, unless the information was revealed for private purposes. In order to bring the claim within the ambit of Regulation 106 it was therefore necessary for the appellant to allege and prove that the information disclosed by the first respondent was for private purposes. No such allegation was made. The question of proof will be dealt with later.
 Furthermore it is apparent from the declaration that the appellant’s claim is not one for actual or patrimonial loss. This was correctly conceded by her counsel. The claim is one for damages due to injury to her personality, dignity, reputation and invasion of privacy, all flowing from the alleged breach of the oath of secrecy. It is based on the actio injuriarum, which is part of both South African and Lesotho law, and the declaration ought to have alleged that the disclosure was made with animus injuriandi. This allegation is also lacking.
 Before referring to the evidence in more detail, it is necessary to refer to some of the undisputed facts. Contrary to the allegations in the declaration, no evidence was led in the Magistrate’s Court, nor did the appellant lose her case. The first respondent did provide that Court (and the appellant’s husband) with certain information concerning the appellant’s employment with the Ministry of Home Affairs as well as copies of her marriage certificate and pay slips and as a result of the contents of these documents, the maintenance matter was removed from the roll, as mentioned earlier. It is also not disputed that the first respondent was the appellant’s superior in the Ministry of Home Affairs and that he had taken the oath of office and secrecy. Finally in this regard, and although the first respondent did not give evidence in the High Court, his version of the events relating to this matter was recorded in a statement which was agreed to between the parties. The details of his version are reflected in the heads of argument of the respondents’ counsel in the High Court and were referred to in the judgment of Mofolo AJ.
 The appellant was the only witness to give viva voce evidence in the court a quo. Her evidence does not add much to the facts mentioned above. Unfortunately the documentary exhibits referred to in the evidence and the judgment were apparently missing when the record was prepared, but sufficient information as to their contents may be gleaned from the judgment. Contrary to the Rules of this Court, moreover, the record of proceedings was not certified as being a true and accurate record of the proceedings in the High Court and no explanation for this important omission was forthcoming.
 The facts show that the first respondent had received what is described in the judgment as a “pro-forma standard document” from the Vereeniging Magistrate’s Court. He filled in the blanks on the form and returned the completed form to that Court. The information so supplied by the first respondent consisted of the appellant’s monthly salary (with pay slips enclosed) relating to her employment with the Ministry of Home Affairs. He also enclosed a copy of the marriage certificate recording the details of the marriage between the appellant and her husband. The same details were also sent to Mr. Lazarus Letsielo and, according to the judgment, the first respondent also wrote to Mr. Letsielo on 24 July 1995 enquiring about the appellant’s whereabouts. Why he did this and what response he received remain in the realm of mystery.
 The appellant’s evidence was directed towards showing that the information disclosed by the first respondent had come from her personal file. This was not disputed. The disclosure, she emphasised, was contrary to the oath taken by all public servants that “Government secrets” may not be divulged. She testified that by revealing the information the first respondent had “interfered with (her) life”, had caused her embarrassment and had affected her dignity. Furthermore, according to the appellant, the actions of the first respondent had caused her to lose her case.
 The first respondent, in his statement, said that he sent the information to the Magistrate’s Court and to the appellant’s husband in his official capacity and because he had been “mandated” by the Principal Secretary to comply with the Court’s request. He added that he responded as he did because the facts were required for a Court case. He would not have acted in this manner if it was merely “a personal request by an individual.”
 The first question that I deal with is whether the disclosure of her private details entitles the appellant to legal relief. According to the judgment in National Media Ltd and Another v Jooste 1996(3) SA 262 (SCA) at 270 H-J:
“……..legal protection of private facts is extended to ordinary or reasonable sensibilities and not to hypersensitiveness ……… The general sense of justice as perceived by the court (Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993(2) SA 451 (A) at 462 G) does not ….. require the protection of facts whose disclosure will not ‘cause mental distress and injury to anyone possessed of ordinary feelings and intelligence, situated in like circumstances as the complainant’ ….”
And at 271 C-E the Court emphasised that the right to privacy does not depend solely on the plaintiff’s wishes or will. The boundary of the individual’s right or its infringement remains an objective question.
 The information and documents communicated by the first respondent to the South African Court and the appellant’s husband were neither offensive nor disparaging. They were factually correct and were transmitted to a judicial institution of a neighbouring state. They dealt with matters that were germane and, indeed, essential to the determination of the issue with which that Court was concerned. Had the first respondent not disclosed those facts, the appellant would have been obliged to do so herself in the proceedings which she had instituted. In my view no reasonable person, possessed of ordinary feelings and intelligence, in the appellant’s position, would have suffered mental distress and injury as a result of the first respondent’s actions. The fact that the appellant might have felt that her right to privacy had been invaded is of no consequence, nor does it matter that she subjectively might have been aggrieved by the information revealed to the Court. The fact of the matter is that a reasonable person in the appellant’s position in the circumstances of the case would not have regarded the disclosures to amount to an infringement of her rights to privacy or as an affront to her dignity and reputation.
 Moreover, the facts and documents forwarded to the Magistrate’s Court and the appellant’s husband were not revealed or used for private purposes. They were communicated in the exercise of the first respondent’s official duties and to recipients who had the right to receive them. He acted responsibly and correctly in responding to the requests made to him. There is therefore no need to attempt to define what is meant by the expression “for private purposes” in Regulation 106. It suffices to say that on the facts of this case the first respondent’s disclosures were made for official purposes and according to what would have been expected from any responsible person in his position.
 Closely connected with what has been mentioned above are the concepts of unlawfulness and wrongfulness. Once it is accepted that the first respondent acted lawfully in terms of his oath of secrecy and, I add, in terms of section 14(1)(i) of the Public Service Act 13 of 1995 (which prohibits a public officer from revealing or using, for private purposes, information acquired in the course of his duties), the concept of unlawfulness does not arise. The question of wrongfulness, it has been authoritatively held (see Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) at 144 E-F, par ), concerns reasonableness, not in relation to the conduct of the defendant, but in relation to the reasonableness of imposing liability on him. This is largely a matter of public policy. On the appellant’s behalf, no arguments were addressed to us in support of the allegation in the declaration that the first respondent acted wrongfully. And on the facts of the case it would not be reasonable for this Court to impose liability on him. To do so would, in the words of Brand JA in Trustees, Two Oceans Aquarium Trust at 145C, par  amount to extending delictual liability to a situation where none existed before.
 The question of animus injuria, too, does not arise. It is the violation of another’s personality that constitutes the delict. Once it is clear that there was no infringement of the appellant’s rights there can be no question of an injuria and in its absence there is no animus injuriandi.
 Finally on the merits I mention the submission made on the appellant’s behalf that it was the first respondent’s disclosure of the information that caused the appellant’s case to be removed from the roll: therefore, it was argued, the first respondent was liable. There is no merit in this argument. Causation requires consideration only if it is established that the defendant has committed a delict. It does not exist in the air. Without seeking to invoke the sine qua non or “but for” test, it is quite obvious, moreover, that even without the first respondent’s intervention the same result would inevitably have followed. I have referred to this in par  above.
 I have earlier adverted to the inordinate length of time that elapsed between the service of summons and the delivery of the judgment. The parties seemed reluctant to deal with their legal responsibilities. There was a lapse of almost three years before the defendants entered an appearance to defend and the plea was filed in December 1998. Why there were further delays is unclear and no explanation was forthcoming from the Bar. All that I can say is that there appears to have been no sense of urgency to bring the litigation to a conclusion within a reasonable time. There is hardly any need to repeat that it is due to inexplicable and protracted delays of this nature that the administration of justice in this Kingdom is brought into disrepute.
 The appeal is dismissed with costs.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
For the Appellant : Adv M. Rafoneke and
Adv M. Tšoeu
For the Respondents: Adv L.V. Letsie