Description
Signing of a pleading by any person duly authorised – express authority to sign a pleading – powers of an advocate to sign a pleading – mere knowledge of an impending wrongful act – consent – express or implied agreement – filming, publication and broadcasting of the plaintiff without her consent – infringement of privacy – use of the plaintiff’s image for business purposes – enslaving – violation of dignity – violation of the human rights – payment commensurate to a lawfully work done – an officer able to depose the facts – claim for damages for feelings and dignity – mental torture – aggravated damages –an unconsented publication and broadcast – an award of a total of USD. 35,000 for an unconsented filming, publication and broadcasting.
• By reason of absence or for other good cause a pleading may be signed by any person duly authorised by the party to sign the same, or to sue or defend on his behalf (p. 8).
• The defendant’s previous lawyer signed a written statement of defence and simply stated that she had been authorised to sign – it was held that the advocate’s statement was not enough and that there ought to be produced a specific authority from the defendant to support that authority (p. 8). It was also held that the written statement of defence was signed without the party’s express authority in terms of the law (p. 9).
• A person signing the pleading must possess an additional qualification of being conversant, able and authorised to depose the facts. In other words, he should be in a position to feature as a witness (p. 8).
• An advocate cannot be both an advocate and a witness in the same case (p. 9).
• If an advocate should sign a pleading on behalf of a party, he should possess express instructions from either of the three officers covered by Order XXVII Rule 1 of the CPC, so that in the event of the need of clarification on any issue, such officer can be consulted (p. 9).
• Powers conferred to the advocate are limited to signing of the pleading and not to the deposition of the facts of the case (p. 9).
• The plaintiff claimed that she was filmed without her consent but the defendant argued that she consented because she knew she was being filmed but she did not protest. The court rejected the defence on the basis of the remarks in Salmond & Heuston Law of Torts book (21st Edition) that mere knowledge of an impending wrongful act, or of the existence of a wrongfully caused danger, does not in itself amount to consent, even though no attempt is made by the plaintiff to prevent or avoid the act or danger. Consent involves an express or implied agreement that the act may be rightfully done or the danger rightfully caused (p. 10 and p. 11).
• Filming, publication and broadcasting of the plaintiff without her consent was found to be an infringement of the plaintiff’s privacy (p. 14).
• It was held that The defendant’s use of the plaintiff’s image for business purposes without payment amounts to enslaving the plaintiff hence a violation of her dignity and a violation of the human right of payment commensurate to a lawfully work done (p. 15).
• The defendant did not bring an officer able to depose the facts to court for examination in terms of Order X Rule 3 of the CPC – it was held that there was a failure from his side to disprove a claim for damages for feelings and dignity (p. 16).
• The defendant refused to pay the plaintiff for broadcasting her image without her consent – it was held that the defendant’s refusal to recognize the plaintiff’s contribution subjected the plaintiff to a mental torture, which is more harmful than personal injury (p. 16).
• Aggravated damages – by an unconsented publication and broadcast, the defendant acted with undue consideration warranting an award of aggravated damages (p. 17).
• The plaintiff was awarded a total of USD. 35,000 for an unconsented filming, publication and broadcasting of her image by the defendant (p. 17).
