Makakole v Vodacom Lesotho (Pty) Ltd (Cof A (CIV)No.21/03 )

Media Neutral Citation: 
[2004] LSHC 14
Judgment Date: 
1 January, 2004


Cof A (CIV)No.21/03


In the matter between:




Held at Maseru

CORAM: Plewman, JA

Melunsky, JA

Kumleben, AJA


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.



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


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.


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.


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


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


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