Court name
High Court
Case name
Kubirske v Sieberhagen
Media neutral citation
[2011] NAHC 154





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE







CASE NO: I 3306/2010



IN THE HIGH COURT OF NAMIBIA







In the matter between:







ERNST AUGUST KUBIRSKE
…...............................................................PLAINTIFF











and











REINHARDT SIEBERHAGEN
…...........................................................DEFENDANT











CORAM: SMUTS, J







Heard on: 30 and 31 May 2011



Delivered on: 09 June 2011











JUDGMENT















SMUTS, J [1] In this
action the plaintiff claimed N$100,000.00 for an injuria
perpetrated by the defendant upon him. The cause of action arises
from an sms (short messaging service) which the plaintiff had
received upon on his cellular telephone from the defendant’s
cellular telephone. The message was terse and was in the Afrikaans
language. It read: “Antwoord jou foon jou poes”.
The parties accepted a freely translated version of this message is
Answer your phone you cunt”.







[2] It was initially disputed that the
sms was sent but the defendant amended his plea at the outset of the
proceedings to admit having sent the sms. It was also admitted in the
course of his evidence that the words in their ordinary meaning have
an injurious and offensive connotation.







[3] The elements of an action based
upon injuria were thus essentially not in issue. What is
essentially in issue between the parties is the quantum of the
plaintiff’s damages.







[4] At the outset of the proceedings,
the defendant’s counsel, Ms C van der Westhuizen, sought to
place on record that the defendant had made a “without
prejudice” offer of N$5,000.00 to the plaintiff together with
costs on a magistrate’s court scale on the preceding Thursday,
28 May 2011. Ms van der Westhuizen also pointed out that this offer
was no longer made without prejudice and that it was, at the
commencement of the proceedings on 30 May 2011, made unconditionally.







[5] When Ms van der Westhuizen
referred me to the offer made “without prejudice”, I
enquired as to whether the defendant wished to invoke Rule 34. She
responded in the negative and stated that the defendant wanted to
place the offer on record and to record that it was unconditional
with immediate effect. As it is not permissible to refer to
negotiations and offers made without prejudice, I then
enquired from Ms H Schneider who represented the plaintiff as to her
attitude concerning this disclosure. Ms Schneider did not then object
to the disclosure of the “without prejudice” offer and
instead proceeded to confirm that it had been made and that it had
been rejected and that the plaintiff furthermore rejected the current
unconditional offer. Ms Schneider then made an opening address and
proceeded to call the plaintiff who gave evidence.







[6] Given the fact that the essential
elements of injuria were no longer in issue, most of the facts
material to the cause of action were not in essence disputed. The
plaintiff testified that he had received the text late on a Saturday
afternoon or early on a Saturday evening from a number which he later
established to be that of the defendant although he had assumed in
the circumstances that the sms had been sent from the defendant. He
stated that the defendant was living in an adulterous relationship
with his estranged wife and that there were protracted divorce
proceedings which were currently pending. He further testified that
he had instituted an action against the defendant for alienating his
wife’s affection and that those proceedings were also currently
pending.







[7] The plaintiff also gave evidence
that he was very shocked by the insulting terms of the text. He said
that he felt humiliated and that his dignity was impaired. He stated
that he found that the use of the expletive in question was gravely
offensive to him and that he is a prominent member of his church and
active in its affairs.







[8] In cross-examination it emerged
that the event in question had occurred on 4 September 2010, sometime
after the plaintiff and his wife had separated and more than a year
after divorce proceedings had been instituted. They had reached an
interim arrangement concerning the custody of their two minor
children. Relevant for present purpose is their much younger son,
Nikolai, who was at the time of the sms, 6 years old, having reached
that age a few weeks before the incident occurred. Pursuant to the
interim arrangement, Nikolai was spending the weekend with the
plaintiff. He had been in telephonic contact with Mrs Kubirske, as
was is his custom when he is separated from her. According to her
evidence, which was not placed in issue in this respect, he had cried
on the phone and she then promised to call at the plaintiff’s
house to give him a hug and comfort him. She then called at the
plaintiff’s residence and requested the plaintiff to permit
Nicolai to come to the gate.







[9] It was common cause that the
plaintiff refused to let her have contact with the child and that
there followed an exchange between them. Mrs Kubirske stated in her
evidence that the plaintiff used a derogatory term in Afrikaans in
chasing her away, namely the Afrikaans word “voertsek”
and further stated that it was his house and his twin with Nikolai
and that she should leave. The plaintiff denied that he used that
specific term but did not deny the tenor of his message. It was also
common cause that the young child was able to observe this scene.







[10] Mrs Kubirske then departed from
the plaintiff’s house and was distressed by what had occurred
and then proceeded to the defendant in an upset state. She repeatedly
tried to reach the plaintiff by telephone in a bid to see her son.
The plaintiff in cross-examination admitted that he had received some
twelve missed calls from her number. Mrs Kubirske also requested the
assistance of the City Police to intercede in the matter. It was not
contested that this had occurred and that the duty officer had
requested her to endeavour to contact the plaintiff. When the
plaintiff failed to answer these calls, the defendant, who
accompanied Mrs Kubirske to the police, then sent the sms in
question.







[11] The defendant, who is a
psychiatrist, gave evidence. He admitted that he is romantically
involved with Mrs Kubirske, but stated that this relationship had
only commenced at the end of 2009. It is common cause that Mrs
Kubirske had obtained a restitution order in October 2009 already,
having instituted divorce proceedings in August 2009. The defendant
denied that the relationship had commenced prior to the institution
of the divorce proceedings.







[12] The plaintiff further testified
that he felt that the plaintiff was vindictive towards him. He
referred to institution of the damages action against him for
alienation of Mrs Kubirske’s affection and stated that the
plaintiff had also laid a complaint against him with the Medical
Council of Namibia for allegedly treating Mrs Kubirske whilst being
in an intimate relationship with her. The plaintiff had in
cross-examination admitted that he had laid such a complaint and
stated that he did so by reason of the fact that he had noted in his
medical aid claims that these had included a prescription provided by
the defendant. The defendant explained that the prescription in
question was for sleeping tablets and that Mrs Kubirske had a long
history of insomnia and for that reason he had prescribed the
medication. He denied that he had provided therapy or treatment to
her and had merely provided a prescription for medication which she
had previously repeatedly required.







[13] The defendant stated that he had
sent the sms to the plaintiff because Mrs Kubirske had been in a
distressed state after being chased away from the plaintiff’s
home in front of the young child who had wanted to see his mother.
The defendant said that Mrs Kubirske was extremely upset and
frustrated at being unable to reach the plaintiff in a quest to see
young Nikolai. He further testified about the several efforts made by
Mrs Kubirske to contact the plaintiff which had been without success.
He stated that he then became angry and felt provoked by what he
termed “the plaintiff’s uncalled for action”.
He felt that it was obvious that the young child wished to see his
mother and that there was no understandable reason why the child
should be kept from his mother except for what he termed the
plaintiff’s selfishness”. The defendant
further stated that he felt that the plaintiff was being unduly
vindictive both towards him as well as being pathologically jealous
because of his relationship with Mrs Kubirske.







[14] The defendant also stated that he
was not in the habit of making derogatory and insulting remarks but
that the sms to the plaintiff had been the culmination of the events
that afternoon and is to be seen within the context of what had
transpired before that and primarily because of the frustration he
felt when Mrs Kubirske was unable to get the plaintiff to answer his
telephone. He stated that his intention was to get the plaintiff to
answer his phone. He said that he felt that he had been provoked into
sending the rude sms to the plaintiff and acknowledged that it was
wrong to have “cursed” him in the manner he had done so.







[15] The defendant also referred to a
defamation action which he had instituted against the plaintiff. He
said that he had however decided to withdraw that action in the
interests of peace and as an act of goodwill and primarily in the
interest of Nikolai. He also explained that the previous denial of
the sms had been of a tactical nature, upon advice, given perceived
difficulties with regard to proving an sms.







[16] Mrs Kubirske also gave evidence.
She also stated that she only became romantically involved with the
defendant some time after she had commenced divorce proceedings and
in January 2010. She further stated that she was deeply distressed
following her exchange with the plaintiff on the day in question. She
also confirmed the defendant’s evidence about her making
repeated calls to the plaintiff’s number and that the duty
police officer had advised her to endeavour to contact the plaintiff.
She stated that she was extremely concerned about their child’s
wellbeing at the time and was very frustrated, particularly at the
manner in which she had been chased away outside the plaintiff’s
home in front of her young son and his subsequent refusal to take her
calls. She confirmed that she did not try to contact her young son
the next day.







[17] In her submissions, Ms Schneider
argued that the requirements for the
actio
iniuriarum
were
established. She argued that there had been an overt act
intentionally perpetrated with
animus
iniuriandi
which had been
wrongful and that this had resulted in an aggression upon the rights
of the plaintiff. She also correctly stressed the value to be
attached to dignity, both under the common law and more recently
reinforced Article 8 of the Constitution. In the course of the
proceedings, the plaintiff amended his damages to N$35,000.00. Ms
Schneider sought, with reference to authority, to justify an award of
that magnitude.







[18] At no stage did Ms Schneider
object to the earlier reference to the without prejudice offer but
submitted that an award in excess of N$5,000.00 should be made and
that an award in the range of N$35,000.00 was justified by the
defendant’s conduct. She also referred to the absence of any
apology on the part of the defendant. But I pointed out to her that
she had not raised this with him in cross-examination and had not
afforded him the opportunity to do so or to provide an explanation
why he would not do so in the event of a refusal to do so. I
certainly found it surprisingly that she had not raised this, given
the authority referred to by her in argument being joint judgment of
Cameron and Froneman JJ, in the Constitutional Court in South Africa
in
Le Roux and others v Dey
(Freedom of Expression Institute and Restorative Justice Centre as
amicus curiae)
1
in which they dealt in some detail
with the need for Courts to make orders as to apologies and proposed
that an order of that nature which the majority of that court
accepted. It is clear from the various judgments of that Court that
the issue of an apology had been canvassed in some detail in the
proceedings - with reference to both evidence of the parties as well
as submissions including that advanced by the Restorative Justice
Centre on that very issue.







[19] Whilst the issue of an apology
was not canvassed at all in the cross-examination of the defendant,
it was quite clear to me from his testimony and his demeanour that he
was contrite about what had occurred. He also acknowledged that he
had acted wrongly and stated that his motive was to prompt the
plaintiff to answer his telephone. The fact that he had withdrawn a
defamation action against the plaintiff as a token of goodwill, is
also a factor to be taken into account in this context.







[20] Despite the well-reasoned
approach of the joint judgment of Cameron and Froneman JJ in the
Le
Roux
matter concerning the
need for an apology and to direct one, in the absence of the issue
being canvassed in evidence and only fleetingly referred to in
argument and without any relief sought in that regard, I decline to
be further drawn on the issue.







[21] Ms van der Westhuizen submitted
that the claim, even amended downwards to N$35,000.00 remained
exorbitant in the absence of any publication of the insult to any
other parties. I am inclined to agree. Ms Schneider was not able to
produce any authority to justify the quantum claimed, even in the
amended claim. I also agree with Ms van der Westhuizen that the foul
language used by the defendant should also be seen within its
context. In doing so, I wish to make it clear that I certainly regard
the language as being entirely unacceptable and that it would and did
give rise to an affront and an infringement of the plaintiff’s
dignity. But as was also stressed in the judgment of Skweyiya J, in
the
Le Roux
matter2,
albeit in an entirely different context,







It is a
well recognised principle of our law that adjudication must occur
within context”.







[22] Ms van der Westhuizen then
proceeded to refer to the context within which the insult had
occurred. I agree that the damages should be considered and be
determined by taking that context into account. Bearing in mind the
context, she submitted that the offer made by the defendant (earlier
and at the commencement of the proceedings) of N$5,000.00 was more
than reasonable and that the plaintiff’s costs should be
restricted to the date of the earlier offer and should only arise on
a magistrate’s court scale and that the costs of the trial
should be awarded to the defendant on a High Court scale.







[23] Both counsel acknowledged that
there would not appear to be authority directly on point. In the
Le
Roux
matter, the
Constitutional Court reduced an award of damages to R25,000.00 in
respect of the publication of a computer created image depicting the
faces of the deputy principal of a school superimposed alongside that
of the school principal on an image of two naked men sitting in a
sexually suggestive posture. It would appear that there had been wide
publication of this image within the school context. The High Court
had awarded R45,000.00 in damages. This award was ultimately reduced
to R25,000.00 by the Constitutional Court. Other decisions involving
the action
iniuriam
were also referred to. I have
considered them. I have also considered the approach of the Supreme
Court in
Trustco
International v Shikongo
3
where a damages award for a serious
defamation which had been prominently published in a publication with
a wide circulation concerning the then Mayor of Windhoek was reduced
on appeal to the Supreme Court from N$175,000.00 to N$100,000.00.







[24] Taking into account these
authorities and the context within which the injurious conduct had
occurred, I consider that the unconditional offer made by the
defendant provides more than adequate compensation in the
circumstances and would in my assessment constitute a more than
adequate and reasonable award of damages.







[25] After I reserved judgment,
plaintiff’s counsel, Ms Schneider, sought to file further
submissions concerning the disclosure by Ms van der Westhuizen of the
“without prejudice” offer made the previous week. The
filing of this further material was done without the prior agreement
of her opponent and without the leave or invitation of this Court. It
is not acceptable for counsel to seek to place further material after
judgment has been reserved without such consent. If it is
unreasonably withheld the proper course would be to request the Court
through the Registrar to receive the material or to make application
to re-open the case. This did not occur. It is certainly not good
enough merely to do so on notice to the other side as was done in
this instance. I must voice my displeasure at this attempt to place
further material before me. This was also not a case where there was
an attempt to direct the Court to further authority on point which
had been handed down subsequent to the Court reserving judgment. The
further argument provided does not raise any authority which had been
handed down after judgment had been reserved. I accordingly disregard
the further argument filed. I also find it surprising that there was
an attempt to do so because of the implied waiver of privilege
relating to the reference to the without prejudice offer on the part
of Ms Schneider. Instead of objecting to the reference to it when
afforded the opportunity is to do so, Ms Schneider instead
acknowledged and confirmed that such an offer had been made and
stated that it had been rejected. Even when this was again referred
to argument, Ms Schneider did not in reply submit that it should be
disregarded or should not have been disclosed. Her conduct thus was
consistent with a waiver of the privilege attached to such a
communication.











Costs





[26]
The plaintiff’s original claim of N$100 000 was hopelessly
excessive. But even after amendment to N$35 000, it remains
unsustainably on the high side. There is no basis to contend for
quantum in this matter in excess of an award in the Magistrate Court.
Plainly the plaintiff should be restricted to costs on the scale.





[27]
The fact the an unconditional offer was made in the amount awarded
should preclude the plaintiff from receiving any costs subsequent to
it and should require him to pay the defendant’s costs
thereafter. The earlier offer which was made without prejudice should
not have been disclosed. Even though there would appear to have been
waiver on the part of the plaintiff at its disclosure by reason of
the conduct of his counsel, disclosures of that nature should not be
made by counsel in the first place I have decided in the exercise of
my discretion to award the plaintiff his costs up to the day before
the commencement of proceedings which started on 30 May 2011 and
require that he thereafter pay the defendant’s costs of the
trial, to include the costs of 30 and 31 May 2011 and the costs
related to receiving the further argument of the plaintiff filed
subsequent to reserving judgment.







Conclusion







[28] I accordingly make the following
order:







1. Damages in the sum of N$5,000.00
are awarded to the plaintiff.






2. The plaintiff is awarded his costs
on a Magistrate’s Court scale up to the day before the hearing,
namely 29 May 2011, on the Magistrate’s Court scale.







3. The plaintiff is directed to pay
the defendant’s costs of this trial from its first day 30 may
2011 onwards and to its conclusion on a High Court scale including
any costs related to receiving the further argument sought to be
placed before Court by the plaintiff. The defendant’s costs are
to include the costs of one instructed and one instructing counsel.











____________________



SMUTS, J











ON BEHALF OF THE PLAINTIFF MR F G
ERASMUS



Instructed by: FRANCOIS ERASMUS &
PARTNERS











ON BEHALF OF DEFENDANT ADV. SCHNEIDER



Instructed by: ETZOLD-DUVENHAGE







12011
(3) SA 274 (CC).





2At
par 208




3Unreported,
November, 2010..