About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 125
|
|
Merryweather and Another v Scholtz and Another (7965/2009) [2021] ZAWCHC 125 (22 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No:
7965/2009
Before the Honourable Ms
Justice Meer
Hearing: 04
November 2019 to 21 November 2019,
11 to 16 March 2020,
12 to 27 March 2021,
13 to 14 May 2021.
Judgment Delivered: 22
June 2021
In the matter between:
ANDREW
MERRYWEATHER
First Plaintiff
NICHOLAS
MERRYWEATHER
Second Plaintiff
and
OLIVER
SCHOLTZ
Third Defendant
GERARD
DAVID PETER
SCHOLTZ
Fourth Defendant
JUDGMENT
MEER J
Introduction
[1]
In the early hours of the morning of 9 September 2006 a group of
schoolboys and three young
men got into a fight after a night out and
as a result one of them, the First Plaintiff, Andrew Merryweather
(“Andrew”),
ended up partially paralysed and
wheelchair-bound. Andrew sustained a compression flexion type V
fracture of the seventh cervical
vertebrae after he was pushed by the
Third Defendant, Oliver Scholtz (“Oliver”), and his head
struck a stationary motor
vehicle. Oliver’s version is that he
pushed Andrew in self-defence. Andrew claims that Oliver
intentionally spear tackled
him by picking him up and throwing him
against the motor vehicle. This judgment seeks to determine which of
these two versions
is more probable. In essence it is the movement
which preceded Andrew’s fall and Oliver’s role in it
which is in issue.
Meaning no disrespect, and for convenience, the
judgment has referred to some of the eye witnesses mostly by first
name only.
History of Litigation
[2]
As a result of the incident Oliver and 6 of his friends who were part
of his group were
charged with attempted murder and assault in the
Wynberg Regional Court. In March 2008 Oliver was acquitted of the
charge of attempted
murder of Andrew and assault of Nicholas
Merryweather, the Second Plaintiff (“Nicholas”). His
co-accused, save for
Joel Thackwray (“Joel”), were also
acquitted. Joel was convicted for the assault of Nicholas. His
conviction
was however set aside on appeal.
[3]
On 7 September 2009 the Plaintiffs issued summons against Oliver and
two others in the schoolboy
group, Joel as First Defendant and Liam
Hechter as Second Defendant. The Fourth Defendant, who is Oliver’s
father, was later
joined. In the particulars of claim as
amended Andrew claims payment of the sum of R11 068 200.00 in damages
arising from
a spinal cord injury he sustained on 9 September 2006.
The Second Plaintiff, Nicholas, claims R25 000 as general damages for
assault.
[4]
Pursuant to the summons, on 18 May 2010 default judgment was granted
against Oliver as Third
Defendant and his father as Fourth
Defendant. They were ordered to pay Andrew such damages as are
proved. On 14 June
2013 default judgment was entered in favour
of Andrew against Oliver and his father in an amount of R10 291
100.00. The First and
Second Defendants, Joel Thackwray and Liam
Hechter, fell out of these proceedings once default judgment was
granted against the
Third and Fourth Defendants only.
[5]
On 10 September 2013 Oliver applied to rescind both default
judgments. On 1 August 2014
the rescission application was dismissed
with costs. On 14 December 2015 Oliver and his father’s appeal
succeeded against
the dismissal of their application to rescind
default judgment in favour of the First Plaintiff. It was
ordered that the
cost of that appeal and any other costs not covered
by a written tender by the Third and Fourth Defendants stand over for
determination
by the trial court. Leave was granted to the Defendants
to enter appearances to defend and file a plea in the main action.
Thereafter
by agreement the claim of Nicholas as Second Plaintiff was
postponed.
[6]
The matter on trial before me is
accordingly Andrew’s claim as First Plaintiff in the main
action that was instituted in 2009 and the determination of the
aforementioned costs.
Andrew, in addition
to claiming costs of suit seeks a special costs order in terms of
Rule 37(9)(a)(ii) against the Third and Fourth
Defendants jointly and
severally. These are attorney client costs for failing to a material
degree to promote the effective disposal
of the litigation.
Pleadings in this
action
[7]
The particulars of claim as amended state in relevant part as
follows
[1]
:
“
7.
During the night of 8/9 September 2006 and at the Engen Garage,
Vineyard Motors in Main Road,
Newlands, Western Cape, the First,
Second and Third Defendants,
(a)
wrongfully, unlawfully and provocatively referred
to the First Plaintiff as a homosexual;
(b)
wrongfully, unlawfully and intentionally
assaulted:
(i)
The First Plaintiff by grabbing and pushing,
kicking and punching him and throwing and/or spear tackling him
against a stationary
motor vehicle;
(ii)
The Second Plaintiff by pushing him and throwing
him to the ground and then punching and kicking him.
9.
As a consequence of the assaults:
(a)
the First Plaintiff sustained:
(i)
dried epistaxis; and
(ii)
reticular haemorrhaging; and
(iii)
a compression flexion fracture of the C7 vertebra
with an incomplete spinal cord injury.
(b)
the First Plaintiff was hospitalised at Groote
Schuur Hospital where, on 11 September, 2006 a C7 vertebral
cortectomy was performed.
This was followed by the insertion of
a tricortical iliac graft and titanium plate;
(c)
thereafter the First Plaintiff was transferred to
UCT Private Academic Hospital for rehabilitation;
(d)
the First Plaintiff has suffered the following
sequelae:
(i)
he has bilateral leg weakness;
(ii)
the muscles of his left hand are weak;
(iii)
he is a functional paraplegic and is wheelchair
bound;
(iv)
he has reduced sensation over his trunk and legs;
(v)
he experiences chronic pain in and over the right
scapula;
(vi)
he has no control over his bladder and bowels;
(vii)
his sexual function is non-existent;
(viii)
he experiences social isolation and is depressed;
(e)
the First Plaintiff will in the future incur
hospital and medical expenses for regular and routine medical
treatment and attention
as he is, and will be, prone, in particular,
to respiratory and urinary infection;
(f)
the First Plaintiff requires, and will always
require, certain mechanical aids and devices, an appropriately
adapted motor vehicle,
a specially designed and suitable residence
and permanent attendant care;
(g)
the First Plaintiff will in the future lose
earnings;
(h)
the First Plaintiff has suffered and will in the
future suffer severe pain, discomfort, inconvenience, disfigurement
and disability;
(i)
the Second Plaintiff suffered bruises and
abrasions to his lower back and kidney areas;
(j)
the Second Plaintiff experienced pain, shock and
suffering and discomfort.
10.
As a further consequence of being referred to as a homosexual and
being assaulted, the First
Plaintiff has suffered damages in the sum
of R11 068 200.00.
11.
As a further consequence of being assaulted the Second Plaintiff has
suffered general damages
for shock, pain and suffering and discomfort
in the sum of R25 000.00.
12.
In the premises the Defendants are liable to:
(a)
the First Plaintiff in the sum of R11 068 200.00;
and
(b)
the Second Plaintiff in the sum of R25 000.00,
as and for damages.”
[8]
In his amended plea, Oliver denies referring to Andrew as a
homosexual and further denies
wrongfully, unlawfully and
intentionally assaulting him. In amplification of the denial he
pleads that on 9 September 2006
the First and Second Plaintiffs and
one Progress Mphande initiated a verbal and physical attack on the
Third Defendant during which:
“
1.
First Plaintiff swore at and threatened the Third Defendant;
2.
First and Second Plaintiffs taunted and mocked the Third Defendant;
3.
Mphande prodded Third Defendant pushed against his chest and knocked
him under his chin;
4.
Second Plaintiff swore at Third Defendant grabbed his shirt in a
manner which
was threatening;
5.
Third Defendant moved forward put his arms around Second Plaintiff to
prevent
him from attacking him further;
6.
First Plaintiff hit Third Defendant on his back and Third Defendant
let go of
Second Plaintiff;
7.
First Plaintiff grabbed Third Defendant who in turn grabbed him and
pushed him
to get First Plaintiff off him whereupon Third Defendant
released First Plaintiff who staggered backwards;
8.
When Third Defendant was in the process of moving away from First
Plaintiff,
First Plaintiff moved toward Third Defendant as if to
tackle him and to avoid being attacked, Third Defendant grabbed him
at the
side of his shoulders turned him and pushed him away whereupon
First Plaintiff accidentally lost his footing and fell.”
Oliver moreover denies
that he caused any injuries to Andrew and that he assaulted and
injured Nicholas.
[9]
In his plea, the Fourth Defendant denies that the Plaintiffs had made
sufficient averments
against him to sustain a cause of action for the
damages claimed. The Fourth Defendant however admits that he
was joined
as a party to make him liable to pay the First Plaintiff’s
costs. He contends that the First Plaintiff has set out
insufficient averments to support a costs order against him.
[10]
By agreement the claim of Nicholas was postponed sine die. Therefore,
the issues before me at this stage
are:
10.1 The determination of
the merits of Andrew’s damages claim against Oliver;
10.2 The cost orders,
namely costs of the appeal, untendered costs in the rescission
application, the Fourth Respondent’s
liability for costs, and
costs in terms of Rule 37(9)(a)(ii).
Duty to begin
[11]
I was required to determine in terms of Rule 39(11) of the Uniform
Rules of Court who bore the duty
to begin. My finding in
Merryweather v Scholtz
2020 (3) SA 230
(WCC) was that Oliver,
who relied on self-defence, bore the duty to begin, in keeping with
the principle in
Mabaso v Felix
1981 (3) SA 865
(A) that in
actions for damages for assault, a defendant claiming self-defence
should ordinarily bear the onus of proving self-defence.
[12]
The trial proceeded during 8 to 21 November 2019, 11 to 16 March 2020
and was thereafter postponed to April
2020. However due to the
COVID-19 pandemic and the various lockdowns, the trial did not
recommence during 2020. The parties declined
an offer for a remote
trial, deeming this unsuitable. The trial was consequently postponed
to March 2021 in open court and continued
during 12 to 27 March 2021
and 13 to 14 May2021.
The Evidence
[13]
Oliver Scholtz and Joel Thackwray were the eye witnesses for the
Defendants. Andrew Merryweather,
Nicholas Merryweather,
Progress Mphande and ambulance paramedic Elizabeth Howes were the eye
witnesses for the Plaintiffs. All
the eyewitnesses expressed
difficulty in remembering the details of the unfortunate incident 15
years ago and Andrew had amnesia
about the incident. They were
referred to the record of the criminal trial pursuant to the incident
and in some instances to statements
preceding that trial. Four expert
witnesses testified. They were medical experts Professor Dunn and Dr
Welsh and biomedical engineers,
Mr Cloete and Mr De Jongh.
Eye witness testimony
for the Defendants
Testimony of Oliver
Bradley Scholtz
[14]
Oliver, currently aged 32, was born on 2 July 1988. He was 18
years old on 9 September 2006,
the date of the incident, a Grade 12
student at Reddam House in Constantia, and lived with his father, the
Fourth Defendant. At
the time Oliver weighed approximately 73 kg and
was 1.77 metres tall. Oliver has a degree in BA Sports Science from
the University
of Stellenbosch and as of 2019 was employed by a
company, Body 20, which offers personal training. Oliver’s
testimony
is set out below.
[15]
On the evening of 8 September 2009 Oliver and a group of friends went
out to celebrate his friend Dale
Killian’s birthday. They
started the evening at a Waterfront restaurant, Brauhaus House and
then proceeded to Sobar, a club
on Main Road in Claremont, opposite
the Engen Garage.
[16]
Oliver consumed beer at the restaurant but could not recall what he
had to drink at the club. There was
very little drinking at Sobar, he
said because they were in the midst of exams and also because he was
supporting a girl who had
broken up with her boyfriend. They
arrived at Sobar at about 11:00 pm. It had been arranged that
Killian’s mother
would fetch them from the Engen Garage at the
corner of Main and Protea Road, Newlands.
[17]
Oliver estimated that he went to the Engen Garage at about 01:45 am,
by then the early hours of 9 September.
He was neither
inebriated nor tipsy. He went into the Quick Shop where he ran into
an old friend and had a chat. He
next remembers picking up a
packet outside the Quick Shop in the vicinity of the car parked in
parking bay 1 or 2 immediately outside
the entrance door to the shop.
A map of the Engen Garage being Exhibit A, depicted the parking bays
as well as other relevant places
at the garage site referred to in
his testimony. He was going to throw the packet in the bin to the
right of the Quick Shop. He
explained this to be a mundane exercise
to keep him occupied while waiting.
[18]
Whilst he was on his way towards the brick wall where the bin was
located next to the kiosk, he described
the sequence of events
resulting in the injury of Andrew. He recalls hearing the following
words directed at him from someone he
did not know:
“
Watch
out for my car it’s a very expensive fucking car. I own a
production company and have connections who will come
fuck you up.”
Oliver
said he subsequently discovered that these words had been uttered by
Andrew. It was a raised aggressive voice,
threatening and
unwarranted. He was facing the parked cars at the time but he
does not have a specific recollection of seeing
Andrew. His friends
Joel Thackwray and Liam Hechter were in the more immediate area,
roughly on the pavement near the car in parking
bay one and the rest
of his group were close by to the left of the shop entrance. Oliver
recalled one of his friends retorting:
“
I
am sleeping with a woman who owns Claremont,”
in
response to Andrew’s comment about owning a production company.
[19]
Oliver recalled trying to make sense of what Andrew was saying to
him. As he moved close to the
door of the shop, Andrew’s
friend, Progress Mphande, who Oliver did not know at the time, came
towards him in a calm and
amiable manner. He
excused his friend, saying that he gets like this when he has too
much to drink. Oliver
thanked Progress for coming to make sense
of the situation. In cross-examination Oliver denied that he and his
friends started
the verbal hostilities.
[20]
Oliver noticed that at some stage Andrew had been
joined by Nicholas who he also did not know at the time.
They were
standing opposite him in the parking bay hurling insults as a
combined force. Oliver only recalled one comment,
“
I
don’t believe you are 18 you look so young”,
and
he was asked to show his ID. Oliver became sensitive and
responded,
“
Who the fuck do you both
think you are”?
[21]
Something was then said by one of Oliver’s friends which upset
Progress. During cross-examination
it was put to Oliver that
Progress would testify that he heard a comment, “look at those
gay guys”, Andrew lost his
temper and said “you can’t
talk to us like that”. Progress says thereafter all hell
broke loose. Oliver
denied making any homophobic comments but said
Progress became angry and prodded Oliver. The latter raised his
hands and
arched his body back saying, “be calm”. Next
Oliver remembered the Merryweather brothers coming closer towards him
in the area in front of the door. Oliver did not sense his
friends were close by, and was isolated. Around that time,
he
saw the car of Mrs Killian, Dane Killian’s mother.
[22]
A physical confrontation then ensued. Nicholas was fast approaching
him aggressively and made contact
with him on his chest. Oliver
grabbed Nicholas with both arms around his body, the idea being that
if he had him in that
position he would limit his arm movements so
Nicholas could not hit. The situation was not stagnant and in
the ensuing scuffle
Nicholas and Oliver moved towards the kiosk/ ATM
area, with, at the time, Oliver’s back turned towards Protea
Road and his
front facing the kiosk area.
[23]
The next thing Oliver remembered was a forceful push/smack from
behind him on his back. He did
not see who push/smacked him.
However, from the transcript of the criminal trial, he realised this
was Andrew. He walked towards
the wall to steady himself, and let go
of Nicholas.
[24]
He denied that he kicked Nicholas as alleged in the amended
particulars of claim. He denied also that
he kicked Andrew.
Oliver did not see or hear Joel striking Nicholas with his fist and
kicking him, actions as stated in Joel’s
plea. But after
the incident Oliver became aware that Joel had been involved in the
scuffle which he said would have happened
behind his back. Oliver
speculated that Nicholas must have landed up behind Oliver. Oliver
estimated that the entire incident from
the time he heard First
Plaintiff’s voice to the end of the physical confrontation
would have taken about 5 minutes.
[25]
He continued his account by saying after he regained his balance from
the push/smack, he and Andrew
wrestled opposite parking bay 2. His
next memory was being free of the scuffle with Andrew near the ATM.
He then attempted
to go to Mrs Killian’s car. Oliver’s
evidence thereafter on the crucial final push was confusing and the
relevant
extracts from the record on what happened while he was
walking to the car, is best resorted to in setting this out:
“
Oliver:
and then Andrew came back round on my right and was in front of me ,
to my right, and then coming at me….. at a rapid
speed, like a
rapid explosive movement to me. And then when he was within grabbing
distance I reached out and grabbed at his shoulders,
because…..
there was going to be a collision between me and him and I grabbed
his shoulders. And then I stepped to
the right and almost
deflected him (page 83 lines 1 to 5)
…
.
And then holding on -and then with my hands on his shoulders,
stepping to the side, almost deflecting so he had a trajectory,
and
based on his movement towards me, and then it just made-
instinctively it made physical sense, in order to avoid the
collision,
to step to my right and almost deflect the movement, step
to the side , and then push him away from me in order to avoid the
collision.
(page 83 line 20 to page 84 line 2)
Mr Whitehead: M’Lady,
I’m sorry to interrupt. Can we put on the record that as on at
least three occasions, as he says
he pushed him, he’s moving to
the left. He’s moving to the left of his left shoulder. (Page
84 lines 3 to 6)
Mr Scholtz: Yes, I moved
to my right, and he moved to my left
Ms Gassner: Well, lets
just take it – that we can get the right and left sorted out……
Where was his back facing
to?
Mr Scholtz: His back was
facing towards the sales-towards the building area.
So his front was facing
towards Glenhoff/Main Road? (presumably the latter question is by Ms
Gassner) (Page 84 lines 13 to 18)
Mr Sholtz: His front was
facing Glenhoff and Main Road
Ms Gassner: at an angle?
……………
Court: Am I the only one
who is confused? Is that possible- for my front to be facing both
Glenhoff and Main Road? (Page 85 line
8)
Ms Gassner: Well I
presume- is it at an angle?
Mr Scholtz: Yes, at an
angle (Page 85 line 10)
……
.
Ms Gassner: So he wasn’t
perpendicular with his shoulder to the….[intervenes] (Page 85
line 19)
Mr Whitehead: M’Lady,
I’m sorry could the witness give his own evidence without
leading questions and assisting him?
It really is so important that
we allow him to give his own evidence (Page 85 lines 21 to 24)
Court: Right. Let’s
just- this is a very important… part of the evidence….
… we’re all trying
to understand it …and you’ve
got to tell us so that it makes sense (Page 85 line 25 to page 86
line 8 )
Ms Gassner: Perhaps you
can draw his shoulders……
Oliver thereafter
proceeded to indicate “y” by way of arrows on the
map, indicating the direction Andrew’s
head and shoulders were
facing. The record continues:
Ms Gassner: And if you
say you stepped to the right, where would you have been facing, in
direction of which road, or between which
roads? (Page 87 lines 10 to
16)
Mr Scholtz: Protea. Ja
Ms Gassner: So…
your right shoulder turns towards Protea Road. Have I got it right?
(Page 87 line 18)
Mr Scholtz: No. So if I’m
facing more towards Protea Road, on the pavement, and then I step to
my right. Is that what -am
I explaining what you’re asking?
(Page 87 lines20 to 22)
Ms Gassner: You need to
explain (Page 87 line 23)
Mr Scholtz: Okay. So he
was- as I’ve drawn on the arrow- on the layout, he was coming
towards me in that manner and in that
direction, and when he was
within reaching distance, what made the most sense to me at that
point in time to avoid the collision
was to grab him by the shoulders
and then step to the right, and then almost help him on his way, or
use his momentum, and then
a swivel, and it was a fast movement, and
then I pushed him, and then released the shoulders. (Page87 line24 to
88 line 6)….
…
.
And then when he was in reaching distance moving towards me in the
manner I expressed, I grabbed his shoulders, stepped to the
right,
right shoulder moved towards the white pillar, left shoulder opened
up towards Protea road, and then swivelled with him.
So my front
turned, his back turned, and at a certain point I pushed him away
from me. (Page 89 lines 13 to 20).
Ms Gassner: Can you
comment on the force with which you pushed him? (Page 89 line 21)
Mr Scholtz: The force was
– the force warranted, was what I needed to do in order to get
him away from me. So seeing that
he became a physical threat,
imposing on my immediate space, in that moment I did what I needed to
do in order to get him away,
or relieve him from being an immediate
threat, a physical threat.” (Page 89 line 22 to page 90 line 3)
[26]
During cross-examination Oliver further testified that his arms were
nearly fully or relatively extended
below shoulder level when he
grabbed Andrew’s shoulders and did not disagree when it was put
to him that the force generated
was “just the added extension
of your arms from slightly angled to full force”, as explained
in the criminal trial.
He moreover said that when he released Andrew
his arms were at full length.
[27]
Oliver saw Andrew lose his footing and fall in the direction of the
car parked in parking bay 3. In
cross-examination he said he lost his
footing because he was no longer steady on his feet. There was no
object he tripped over.
Oliver said the force he used warranted what
was needed in order to get Andrew away. His intention when he
pushed Andrew
was to avoid a collision.
[28]
Oliver said he did not see Andrew hit the car and has no recollection
of hearing him hit the car, but
went on to say that he would have
heard it. He turned towards Mrs Killian’s car, a Chrysler
Voyager which was parked roughly
opposite the entrance door to the
shop and parallel to the building, facing toward Glenhoff Road.
He got into the car as
quickly as possible to get away from the
physical confrontation. The rest of his crowd were already in
the car, he being
the last to get in.
[29]
Oliver estimated the timespan from when the earlier physical
confrontation with Nicholas started up to him
pushing Andrew to be
approximately 20 to 30 seconds. During cross-examination it was put
to him that this was impossible.
He was also asked why he had
tried to give a time span when he could not remember so much else. He
responded that the timespan
was plausible and he was doing his best
to give an accurate time frame.
[30]
It was difficult for him to remember precise details after he got
into the car. Nicholas came to the
driver’s side banging on the
window and shouting. The occupants of the car were also shouting.
He could not remember
what was said, save to say that Nicholas and
Mrs Killian had a hostile verbal exchange. At some point a
security guard came
and Mrs Killian gave her details. Her
mind-set was to leave because everybody was heated and there was a
hostile situation.
[31]
Later on the morning of Saturday, 9 September 2006, Oliver learnt
about Andrew’s injury from
Joel and his Dad. They had all
gathered at the Killian’s house later that day and there was
talk about Mr William Booth becoming
their lawyer.
Cross-examination of
Oliver Scholtz
[32]
During cross-examination Mr Whitehead, Andrew’s counsel, asked
Oliver about his long pauses when
answering straightforward
questions. Oliver said he was struggling to remember. He was
reconstructing based on memories and
had to put together the pieces
in between. He was trying to recall based on the record of the
criminal trial and his reconstruction.
He could not remember if
he wrote everything down.
[33]
It was pointed out that Oliver’s attorney did not put his
version of self-defence to Andrew and
Nicholas during the criminal
trial. Oliver could not say why this was so. It was put to him
by Mr Whitehead that he would
argue that Oliver’s self-defence
version was made up and that is why his attorney had not put it to
the Andrew and Nicholas
during the criminal trial. It was
further put to Oliver that self-defence only became his version when
he testified in the
criminal trial, and that the prosecutor had also
questioned him about his attorney’s omission. Oliver said
he had no
specific recollection of telling his attorney the whole
version that he had presented in this court. He did not know why he
had
not told his attorney, Mr Booth, to inform the senior public
prosecutor that the Merryweather brothers had assaulted him.
[34] He
estimated that when he pushed Andrew he was a meter away from him and
the maximum distance he would have moved
was half the width of
parking bay 2, a distance measured to be 1.5 metres. It was put to
him that on his version that Andrew fell
when Andrew was a metre away
from him and then fell a further 1.5 metres, that Andrew could not
have sustained the injury to his
head, given Andrew’s height of
1.5 metres.
[35]
He could not say why the First Plaintiff would have lost his footing
given that there were just bricks and
no object that he tripped
over. It was put to him that Mr De Jongh would testify that it
was impossible for Oliver to have
seen Andrew fall backwards and not
see him hit the car. Oliver insisted that he had not seen him
hit the car.
[36]
Oliver was asked how it was possible that he had not seen and heard
Joel’s confrontation with
Nicholas. He said that he had
no difficulty with seeing or hearing but could not explain why he had
not seen this.
He could also not explain why, after assaulting
him, Nicholas would have come aggressively to the car as they were
leaving.
[37]
He learnt from his legal team that Andrew had a blow on his face
after the final incident with him
but denied being responsible this.
He said the only time he could have caused this was after he was
pushed in the back and
before the final push, at which time he was
not near Andrew’s face. On this aspect Oliver was
cross-examined about the statements
of Dane Killian and Liam Hechter
which were provisionally admitted in terms of section 3(3) of the Law
of Evidence Amendment Act
45 of 1998, on the basis that if those
witnesses were not called to prove their hearsay evidence, the
evidence would be disregarded.
The Plaintiffs who relied on this
evidence did not call them to testify. Their evidence is thus
disregarded. I note that an adverse
inference cannot in my view be
drawn from the Defendants’ failure to call them. There was no
duty on the Defendants to call
witnesses who did not corroborate
Oliver’s version.
[38]
When asked why, if he was under attack, he did not run to the car and
shout out to his friends for
help, given the danger he was in, he
replied that in the speed with which the incident took place
“
you
don’t think of the best option… you do what you need to
do to protect yourself. Perhaps it would have been best
to call for
help, but with the rate at which everything was happening I was
trying to free myself from the imminent threat”.
He was unable to explain
why his friends Liam and Joel, who knew he was in danger, would have
abandoned him. Oliver had no
recollection of any of his friends
seeing him push Andrew away. It was put to him that it was
strange that none of his friends
who were there saw the push and were
able to support him.
[39]
Oliver denied that the cause of the incident was his group’s
drinking too much and losing control.
He said Andrew and
Nicholas in their drunken state were the aggressors. Oliver
however expressed deep regret for the fact
that Andrew had ended up
in a wheelchair.
Testimony of Joel
Thackwray
[40]
Joel Thackwray was born on 31 March 1988, and was part of Oliver’s
group of friends at the incident
in the early hours of 9 September
2006. Joel was 18 at the time and said he weighed 81 kg and was 1.88
metres in height. Joel was
subpoenaed to testify by Oliver. Joel, at
the time of testifying in 2019, worked as an accounts manager.
In September 2006
he was a matric student at Wynberg Boys High. As
aforementioned he was charged together with Oliver for the attempted
murder of
Andrew and assault, grievous bodily harm on Nicholas. He
was acquitted on the former charge and convicted on the latter.
His conviction as aforementioned was later set aside on appeal.
Joel did not testify at the criminal trial.
[41]
Like Oliver, Joel testified about attending a birthday celebration at
the Waterfront and thereafter
going to the club Sobar in Claremont.
Joel left the bar at 01:00 am and proceeded to the Engen garage.
He waited for
about 10 to 12 minutes for Mrs Killian to arrive. He
had been drinking, he said, so his memory was quite patchy.
[42]
While waiting he noticed Andrew standing on the pavement facing
towards the Main Road. Andrew
was quite aggressive. He stood in
the middle of parking bay 2 close to the attendant’s kiosk. He
recalled Andrew saying “I
own a production company I will get
guys to fuck you up”. Joel could not say who this was
directed at. In Joel’s
close proximity were three of his
friends. Progress was with Andrew. Joel was on edge because
this was unexpected. He could
not remember if anybody from his group
said anything. He himself could have said “shut-up”.
Joel was in
the parking area between parking bays 2 and 3 and Oliver
at that stage was also there. Joel recalled from a statement he had
made
that Progress came up to them and said, “Don’t worry
about my friend he gets aggressive when drunk.”
[43]
When Mrs Killian arrived Joel made his way to her car a minute or two
later. Her car was parked
in front of parking bay 1 facing
Glenhoff Road. On his way to the car, something caught his attention.
He turned around and saw
Oliver being wrestled by Nicholas on the
pavement between parking bays 2 and 3. Andrew was also there
right in front of Oliver
facing him, but more to his side. Nicholas
was more engaged with Oliver than Andrew was. Joel felt
protective toward Oliver
and he moved quickly towards him. He
remembered throwing a punch with his fist but he could not remember
if his punch made
contact. During cross-examination his attention was
drawn to paragraph 9 of his plea where, contrary to his evidence in
chief,
it is stated that he punched Nicholas, making contact with
him. Nicholas fell and Joel tried to kick him, just a reaction
he said, not malicious. Joel’s focus at that stage was
Nicholas. Andrew and Oliver moved out of his sight.
[44] Joel said Oliver
might not have been aware of his coming to Oliver’s defence as
he approached from behind. Joel
fell backwards in the process
of kicking Nicholas. He accepted that the fact that he had been
drinking might have contributed to
his losing his balance. He then
got up and went to Mrs Killian’s car. He did not know
what happened to either Oliver
or Andrew. He did not see Andrew
when he got up. Nor did he see Oliver push Andrew or spear tackle
him. He estimated that
the time span from his getting involved with
Nicholas to leaving the scene to be about 3 seconds.
[45]
When he entered the Killian car three or four boys were already
inside and it took under a minute for the
rest to get in.
Nicholas came to the car and banged on the window and side door
aggressively. At that time Joel
did not know Andrew had
been injured so he did not know why Nicholas was aggressive.
[46]
During cross-examination Joel was referred to the record in the
criminal trial and various extracts
therefrom. It was put to
him that at the criminal trial his attorney, Mr Booth, at no stage
put his version that he was acting
in a protective capacity towards
Oliver or in self-defence. It was pointed to him that Mr Booth
referred to the incident
as an altercation and a scuffle. When asked
why he had not told Mr Booth that his very limited role was to
protect Oliver, he said
he regretted that he had not spoken more to
the lawyer, explaining that his parents asked him not to talk too
much about the incident.
[47] He was pointed to
the cross-examination of Nicholas during the criminal trial,
referring to Nicholas being kicked repeatedly
by someone wearing
white takkies. He was further referred to an affidavit in the police
docket by Nicholas to the effect that one
of the people kicking him
was wearing white shoes. He conceded this could have been him.
He denied he had repeatedly kicked
Nicholas. It was put to him
that nowhere in cross-examination of Nicholas did his attorney put
his version that he had come
to protect Oliver and he had only kicked
Nicholas once.
[48]
He was asked why if he was averting an attack on Oliver and being
protective towards him, he did not
look for Oliver before going to
the car. He said his focus was more on Nicholas. When asked how
it was possible that the
student who testified at the criminal trial
had heard a bang when Andrew hit the car and he had not, he offered
as an explanation
that the area was busy.
[49]
Mr Whitehead put to him that he would argue that Oliver’s
self-defence version was untrue that
Joel was drunk, violent and not
in full control of himself. He denied this to have been the
case.
[50]
His attention was drawn to the criminal trial evidence of Shane
Wolendorp,
[2]
one of his friends
who turned state witness, to the effect that what he could see was
not self-defence. It was further put
to him that when the
prosecutor cross-examined Oliver he said he did not know
where his friends were and he was asked
what kind of friends he had
who did not help him
[3]
.
Oliver also testified that he did not call for help. His only
concern was to defend himself.
Eye witness Testimony
for the Plaintiffs
Testimony of Nicholas
Robert George Merryweather
[51]
Nicholas Merryweather, currently aged 34, is three years younger than
his brother Andrew. Nicholas
matriculated in 2004 and thereafter
obtained a B Com and Marketing Management degree in 2011. He is
employed in management. Nicholas
testified at the criminal trial in
2010. Nicholas is 1.64 metres tall and weighed 65 kilograms when the
incident occurred.
[52]
On the night of 8 September 2006 Nicholas attended at an old boys’
function at Rondebosch Boys
High School and then went clubbing.
He had 4 beers at the school function but nothing to drink whilst
clubbing, he said.
[53]
On his way home he received a phone call from Andrew to join him and
Progress at the Engen garage in Claremont.
When he arrived, he joined
Progress and Andrew who were standing in the pavement area near the
ATM. At some stage Andrew and Progress
went to the bathroom around
the corner and returned. Nicholas confirmed in cross-examination with
reference to concessions he had
made in the criminal trial that
Andrew was tipsy and saying irrelevant stuff. Oliver and his
friends were standing four to
five metres away. His evidence
concerning the events that followed culminating in Andrew’s
injury, is set out below.
[54]
A verbal altercation ensued between Andrew and Oliver. Nicholas
confirmed his evidence in the
criminal trial to the effect that he
did not know who started the comments that evening, that the shouting
continued for 3 minutes,
that his brother was being a bit aggressive,
that aggressive loud comments were exchanged, but Nicholas could not
hear what was
said. When Nicholas was asked in examination in chief
if he had also taunted and mocked Oliver as testified by the latter,
Nicholas
said he did not recall that. Nicholas stepped in between
Andrew and Oliver to prevent anything further from happening. Oliver
grabbed
Nicholas’s shirt and pushed him back. Nicholas
confirmed his evidence in the criminal trial that he stumbled
backwards after
the push and then went forward and grabbed Oliver by
the collar close to his neck. In response Oliver grabbed Nicholas.
During
the course of their scuffle they moved into the ATM area with
Oliver’s back towards Protea Road. Nicholas was then thrown
to
the ground and was kicked multiple times by a person wearing white
shoes. He conceded in cross examination that it could have
been
someone other than Oliver who threw him to the ground. It all
happened so quickly.
[55]
Nicholas ended up lying on his side in the alcove facing inward with
his back towards the Main Road,
his legs pointing towards Protea Road
and his head towards Glenhoff Road. While on the ground he lost sight
of Oliver, Andrew and
Progress. He was helped up by Progress who was
behind him in the alcove area. Within seconds after that, from where
he was, he
saw Andrew being thrown against a Ford Bantam vehicle
hitting its fender or wheel. He heard a loud bang noise.
[56]
In demonstrating what happened to Andrew, Nicholas said Oliver,
whilst facing his brother, picked him
up with both hands from around
his waist, and lifted him, with Andrew’s feet about 30
centimetres off the ground. Andrew
was then tilted backwards from
that height, with his back towards the ground, nearly parallel to the
ground and his face upwards
facing Oliver. Thereafter Andrew
was thrown, falling backwards against the vehicle in parking bay 3
with the back of his
head hitting the wheel or fender of the
passenger side. He described the manoeuvre as a rugby spear tackle.
Nicholas confirmed
his evidence at the criminal trial that it all
happened very quickly.
[57]
After Andrew fell against the vehicle, the person who had tackled him
left. Andrew was lying on the
ground. Progress attended to him first.
When Nicholas later went to check on Andrew he saw blood above his
lip.
[58]
Immediately after Andrew’s fall Nicholas followed the group of
boys to Mrs Killian’s car.
He did not want the car to leave but
to wait for the police to arrive. He was angry and hysterical
and conceded he could
have said “I am going to f… you
all up”. He said he was swearing a lot because Mrs Killian
wanted to leave.
He asked Mrs Killian if she had seen what happened.
The hearsay evidence of Mrs Killian in response as testified by
Nicholas, became
an area of contestation and it is convenient to deal
with it before continuing further with the evidence of Nicholas.
[59]
Ms Gassner called for the evidence to be disregarded if Mrs Killian
was not called as a witness. Mr Whitehead
submitted that an adverse
inference should be drawn from Oliver’s failure to call Mrs
Killian as a witness. I am of the opinion
that having regard to all
of the factors set out at section 3(1)(c)(i) to (vii) of the Law of
Evidence Amendment Act 45 of 1998,
such evidence should not be
admitted in the interests of justice. I note that whilst all these
factors have a bearing, the evidence
is peripheral to the disputed
versions, does not go directly to proving either version and no
reason is given as to why Mrs Killian
was not called. No adverse
inference can be drawn from Oliver’s failure to call Mrs
Killian as a witness, given my finding.
As this evidence is
disregarded no reference shall be made to the cross-examination of
Nicholas about various statements he made
pertaining thereto.
[60]
To continue with the evidence of Nicholas, which was interrupted
whilst he was at the Killian car, at that
point one of the boys in
the car said, “Come, come do you want some more?”
Nicholas went to check on Andrew,
and then to the shop to ask for a
first aid kit and to call the police. He then had another interaction
with Mrs Killian at her
car which had moved closer to parking bay 3.
She wagged her finger in his face. He was swearing at her. Nicholas
took down her
car’s registration number before she drove away.
[61]
Nicholas denied Oliver’s version that he, Nicholas, swore at
Oliver and pointed out that he had
grabbed Oliver’s shirt only
after Oliver had grabbed his. He moreover denied that Oliver had put
his arms around him in a
bear hug and that he, Nicholas, had
literally disappeared from the scene, as testified by Oliver. He said
he never left the vicinity
at any stage. He furthermore disputed the
testimony of Joel to the effect that he and Oliver were wrestling
chest to chest and
Oliver punched him, Nicholas.
[62]
During cross-examination, Nicholas was referred to Andrew’s
evidence in the criminal trial that
Andrew saw Nicholas being kicked
after Andrew had fallen against the car, and that from where Nicholas
was lying he could not have
seen Andrew. Nicholas conceded that
if Andrew’s version was correct he, Nicholas, would not have
been able to see Andrew
fall. He confirmed that during
cross-examination in the criminal trial he had described the speed
with which the fall happened
as being so quick that it was difficult
to register and that the manoeuvre had occurred in a split second.
[63]
Nicholas was also referred to his evidence in the criminal trial
where he said his brother was picked
up at the shoulders and
thereafter gave a different version that he was picked up at the
waist, adding he was not sure whether
it was the waist, because it
happened so quickly. He conceded that being picked by the shoulders
and the waist are two different
movements. He did not know why he
would have said his brother was picked up by the shoulders and
insisted that he had been picked
up at the waist. It was put to him
that what he saw pertaining to the shoulders was what happened and he
said this could potentially
have been so.
[64]
Nicholas confirmed that at an identity parade he was not able to
identify Oliver. It was put to him
that if he observed the manoeuvre
fully he would have been able to identify Oliver as he had seen him
before the manoeuvre face-to-face.
He said he saw what happened to
his brother but the details about what the person looked like was not
in his memory.
Testimony of Progress
Mphande
[65]
Progress Mphande, born on 31 January 1975, has been working at the
Theatre on the Bay in Camps Bay,
Cape Town as a stage hand since
February 2000. At the time of the incident Andrew was working with
him there. Progress also testified
in the criminal trial. He is 1.8
metres tall.
[66]
Progress’s testimony about the incident on 9 September 2006 was
as follows:
He arrived with Andrew in
his car at the Engen garage and Andrew parked in the parking bay
directly in front of the ATM. They had
arranged to meet Nicholas.
They got out of the car, went around the corner of the petrol station
to relieve themselves, returned
and stood in front of the ATM to wait
for Nicholas. Andrew was on the way to being drunk, but Progress did
not have to hold onto
him. His speech had slowed down. Earlier
that evening Progress had three beers and Andrew had about five
drinks, which included
shooters.
[67]
They stood near the shop door, chatting. There were 3 boys close by.
One of them said, “Look at those
gay guys”. Andrew
initially did not hear the comment and he and Progress continued
chatting. When the same comment was repeated
Andrew heard it. They
approached the boys and Andrew said to them that they could not make
accusations about people they did not
know. One of the boys got
aggressive and pushed Andrew. He stumbled backwards but managed to
find his balance. Progress tried to
stop the person who pushed Andrew
because he could see the others wanted to join in.
[68] A
fight ensued and whilst the commotion was going on Progress saw
Nicolas who, by this time, had arrived.
Nicholas also tried to stop
the fight and also became embroiled. Progress heard a loud bash while
he was pushing guys away from
Andrew. He turned around and saw Andrew
on the ground. He grabbed Andrew from behind and put him on his lap.
Andrew said he felt
like his neck was broken and his back was sore.
Progress saw blood coming out of his nose and ears. Progress
saw a golden
Chrysler arrive to pick up the boys who had caused the
commotion. He told Nicholas to get the registration of the car.
[69]
Progress denied Oliver’s version that Andrew was hurling abuse
at him, was aggressive and that Progress
had intervened and asked for
his friend to be excused as he gets like this when he has too much to
drink. He also denied Oliver’s
version that Nicholas arrived at
the scene and joined the First Plaintiff in hurling insults.
Furthermore, he denied that
Andrew had said “be careful of my
car I have connections and will fuck you up”. Progress
also denied that he
had prodded Oliver.
[70]
Unlike Oliver’s testimony that at the time of the final
incident with Andrew only the two of
them were present, Progress said
he was there all the time. However, he did not see what was happening
to Andrew as he was pushing
the others away from him. He also could
not say what was happening to Nicholas.
[71]
During cross-examination, Progress said that it was difficult for him
to give an accurate account of
the scuffle. It was many years ago and
events had unfolded very quickly.
[72]
He was cross examined about Andrew’s demeanour during the
verbal exchange preceding the physical confrontation.
He said
Andrew’s demeanour had been fine and he communicated in a
normal speaking voice. His body language was also calm.
With
reference to the evidence of Nicholas at the criminal trial that his
brother was shouting and that this continued for 3 minutes,
he said
he could not recall that happening. He said he did not know if
Nicholas was wrong but he did not see that happening.
[73]
He confirmed that he did not see either of the Merryweather brothers
being punched or kicked. He said
his evidence during the default
judgment application to the effect that Andrew staggered and then
fell backwards was a mistake.
He conceded that he did not see him
fall.
[74]
It was pointed out to Progress that at the criminal trial he
testified that Nicholas was very calm
when he interacted with Mrs
Killian at her car. The evidence of Nicholas however at the criminal
trial was that he was swearing
at Mrs Killian.
Testimony of Andrew
Merryweather
[75]
Andrew Merryweather was born on 16 February 1982. He is currently 39
years of age and has been working
as a financial planner since 2015.
He testified at the criminal trial in 2007. At the time of the
incident in 2006 he was working
at Theatre on the Bay.
[76]
In the early hours of 9 September 2006, Andrew and Progress arrived
at the Engen garage in Claremont
in his car after a night of clubbing
and parked in the front of the ATM. His brother Nicholas arrived soon
thereafter. Andrew confirmed
that he had 5 alcoholic drinks earlier
and that he was tipsy on the way to being drunk when he arrived at
the Engen garage. He
too said that he and Progress went around the
side of the building to relieve themselves. They returned and walked
towards the
entrance of the shop.
[77]
The last thing Andrew remembered before he was injured was seeing
Oliver’s blue eyes. Oliver made
a face gesture which drew
Andrew’s attention to a group of boys and the next thing Andrew
remembered was waking up in Progress’s
arms. Andrew thus has
complete amnesia about his involvement in the verbal altercations and
what happened to him in the physical
fight thereafter. He could not
remember his conversation with his brother Nicholas when the latter
arrived at the Engen garage.
Nor could he remember his exchange with
Oliver or who had started it. He assumes there was aggression because
of the level of his
injury.
[78]
When he woke up in Progress’s arms, he recalled being in
tremendous pain and confusion and could
not feel his legs. Very
quickly he realised he could not move them. He was taken to hospital
in excruciating and overwhelming pain.
Whilst in hospital when he had
his first shave he saw bruising on his left eye in the mirror. He
spent several months in hospital.
He was put in a metal brace to keep
his head and neck rigid. This he described as agonising. He is in
constant pain, on pain medication
as well as medication for many
ailments.
[79]
During cross-examination, Andrew was referred to his evidence in the
default judgment application in May
2010 when he estimated his weight
in 2006 to have been 60 kilograms. He corrected this testimony by
saying he had since come to
the view that his weight in 2006 would
have been less than 60 kilograms, as from a Momentum insurance policy
form dated 2015, his
weight there is recorded as 57 kilograms in 2015
and his height as 1.72 metres. He reasoned that he would have put on
weight after
the incident by 2015, being sedentary and
wheelchair-bound. He estimated that he would have weighed about 54
kilograms in 2006.
During re-examination on the question of his
weight he was referred to notes by a Professor Bonnici who examined
him in April 2003
and recorded his weight then as 50 kilograms. He
was also referred to the report of experts Lewis and Cloete which
stated that
his weight at the time of the accident was 55 kilograms.
On the basis of Professor Bonnici recording his weight at 50
kilograms
in April 2003, Andrew re-estimated his weight in 2006 to be
about 52 kilograms. He considered Oliver’s weight of 73
kilograms
and height of 1.77 metres, being 5 centimetres taller than
Andrew, to be a massive difference in comparison to him.
[80]
During cross-examination, Andrew was referred to two affidavits
attested to by him. The first, dated
5 October 2006, was criticised
at the criminal trial for being a thin statement. He was referred to
his testimony in the criminal
trial concerning that affidavit, in
which he said after he woke up he was in and out of consciousness. He
stated that he did not
tell everything to the police when making that
affidavit as he was still in hospital, in pain, not in a clear state
and was not
interested in giving an affidavit.
[81]
The second affidavit dated April 2007 was made when he was out of
hospital and in a clearer state of
mind and was drafted with the
assistance of his attorney at the time. In this affidavit, he stated
that he remembered lying on
the ground and out of the corner of his
eye he could see his brother Nicholas on the ground with 3 pairs of
legs kicking him. This
was also his testimony in the criminal trial
where he described his brother being at the corner of the ATM, with
his hands over
his head not getting up. His brother could not see
him. He could remember seeing his brother because he was looking for
him. Notwithstanding
this testimony and the contents of the
affidavit, Andrew testified that he was wrong when he said this, as
his memory orders were
incorrect.
[82]
He explained that he had two memories. The first was Progress holding
his head and the ATM behind him. It
was not possible that from this
position he could have seen his brother. The second separate memory
was of his brother at the ATM,
his arm guarding his face. He could
not recall if his brother was being kicked. He could not say when
precisely the memory of his
brother was. He said that in the criminal
trial and in his affidavit he incorrectly placed the two memories
together. He realised
he had made a mistake when he was going over
his testimony in preparation for this trial.
[83]
During re-examination on this aspect, he was referred to the
cross-examination during the criminal trial
where he was asked
whether he was 100% sure that he saw his brother lying on the ground
when he woke up. The record does not complete
his evidence indicating
“I was going in and out of consciousness. – So the
timeframe . . . might be . . . ”.
He explained what he was
going to say was that the sequence of the order of his memory was
incorrect and when lying in Progress’s
arms he did not see his
brother and there was a memory reconstruction. He emphasised that he
could not remember the sequence clearly.
He did not explain this at
the criminal trial because he was intimidated by Defendants’
attorney, Mr Booth. He was referred
moreover to his evidence in
cross-examination to the effect that he and his brother can both not?
remember things and the timing
might not be exact. He said he was
trying to tell the court the sequence of memories was not accurate.
[84]
In cross-examination he was referred to Groote Schuur hospital
patient notes dated 23 July 2002 which
records that he was admitted
on 23 July 2002 for psychiatric observation. The note records that he
was acting weird, aggressive
and had alcohol on his breath.
He
explained that this was when he
had a break-up with a long-term
girlfriend, he had been at a restaurant that night, finished a bottle
of wine and as a result of
the break-up had been admitted to
hospital. He could not recall how long he remained in hospital on
that occasion. He referred
to it as an embarrassing night when he was
heartbroken.
[85]
With reference to the pleadings, he was asked in cross-examination
whether it was his evidence that
Oliver had grabbed, pushed, kicked,
thrown him and or spear tackled him. He responded that it was his
case that Oliver assaulted
him and put him in the wheelchair and any
fighting would have involved all of these acts. He himself did not
see it.
Testimony of Elizabeth
Howes
[86]
Elizabeth Howes was employed by Netcare 911 as an intermediate life
support practitioner. On the night
in question, she arrived at the
scene of the accident together with a colleague. She has an
independent recollection of arriving
at the garage where she
encountered Andrew lying on his back, with his head being supported
by an off-duty paramedic. She
arrived at the scene at about
02:43 am and Andrew was taken to hospital at 02:45 am. She said
her colleagues “did the
vital signs” and she completed
the ambulance report form. This was done once Andrew was
stabilised and they were on
their way to hospital.
[87]
She recorded on the form
inter alia
: “Head and face:
dried epistaxis reticular haemorrhaging.” She explained
that dried epistaxis meant a dried
nose bleed and haemorrhaging meant
that it was controlled i.e. not an active bleed. This meant
that the nose bleed had stopped
and there was still blood on his
face. Reticular, to her, meant “around”, explaining
that in paramedics’
services reticular haemorrhaging would have
meant bruising around. In hindsight she doubted the correctness of
the term.
[88]
She assumed that Andrew had been assaulted and punched in his nose.
If someone had cleaned Andrew’s
face and smeared blood on it,
his appearance would have been different. She explained that a
bruise-like appearance was different
to that of smeared blood.
She did not see bleeding out of the Plaintiffs ears or mouth nor did
she see blood vessels in his
eyes.
[89]
During cross-examination she was referred to the Groote Schuur
patient notes for the ‘GSH ASCI
Unit’ which indicated “no
facial injuries”. She was not in a position to explain why this
record differed from
her observation on the Plaintiff’’s
face.
[90]
Commenting on her notes on the ambulance report form she indicated
that the Plaintiff was fully conscious
as indicated on the ‘glasco
coma scale’ of 15 out of 15. The ambulance notes record
the time until 03:10 am.
[91]
Ms Howes’s qualifications are as follows: in January 2004
to April 2004 she completed an
EMS course to learn to be a basic
ambulance assistant. In January 2005 to November 2007 she did 2
years of a 3-year National
Diploma course.
The Expert Witnesses
The Medical Witnesses
[92]
Professor Dunn, an orthopaedic surgeon, and Dr
Welsh, a neurosurgeon, were called as medical experts on
behalf of
Oliver and Andrew respectively. Dr Welsh operated on Andrew after his
injury, and was a state witness in the criminal
trial. The medical
experts had a meeting of experts and signed a minute on 13 April
2019. They agreed, based on the X-rays and
MRI scans that Andrew had
sustained a compression flexion type V injury of his 7
th
cervical vertebrae (C7), characterised by a
teardrop fracture. They also agreed that the injury could have been
caused either by
falling backwards and striking the back of the head
against a stationary object, or by Andrew being spear tackled. Dr
Welsh however,
stated the latter was more probable whilst Professor
Dunn was of the view that the probabilities were equal. Their
respective opinions
are set out below.
Testimony of Professor
Robert Neil Dunn
[93]
Professor Dunn is currently the head of orthopaedic surgery,
University of Cape Town, Groote Schuur
Hospital. Prior to this he was
the head of the acute spinal cord injury unit and spinal services at
Groote Schuur and Red Cross
Hospitals since 2003. He has been an
orthopaedic surgeon since 1999. He is chair of the orthopaedic
surgery department at
the University of Cape Town. He is also
the director of the board of the University of Cape Town Private
Academic Hospital
and a consultant orthopaedic surgeon at Groote
Schuur Hospital. Professor Dunn was a past president of the
South African
Spine Society and is an examiner at the College of
Medicine, responsible for running exams for specialist
qualifications.
He is currently the second vice-president of
the South African Orthopaedic Association which is internationally
recognised.
Professor Dunn’s clinical practice is limited
to spinal surgery, both paediatric and adult, with a specific
interest in deformity.
He has personally performed about 4086 spinal
procedures. He teaches at UCT to both undergraduates and
post-graduates.
Professor Dunn has published extensively and
presented at congresses nationally and internationally.
[94]
Professor Dunn was requested to express an opinion as to the possible
mechanism which caused Andrew’s
injury. Professor Dunn had
neither examined nor treated Andrew. His opinion was based on
Andrew’s X-rays and MRI imaging
from the time of his injury.
Professor Dunn also had access to the Groote Schuur Hospital and
trauma unit records of 9 September
2006.
[95]
In his view it is not possible to infer from the injuries depicted on
the MRI and X-ray scans what mechanism
caused Andrew’s head to
be pushed, what happened and which of the two injury scenarios was
more probable. All one could see
from the imaging was that a
significant amount of force was applied. With his
understanding of the bio-mechanics, both
scenarios could have created
that force. On the imaging the probabilities are equal that both
scenarios, namely the Defendants’
version that the injury arose
as a result of falling backwards, losing balance and hitting the
head, and the Plaintiffs’
version that the injury was caused by
a spear tackle, could have caused this particular injury.
During cross-examination
Professor Dunn qualified that both
mechanisms are possible but it is not possible to work out which one
is more probable. However,
he stated the fact that Andrew was supine
on his back, face upward after the incident, would suggest he had
fallen backwards as
he was unlikely to have turned himself around as
paralysis would have been instantaneous upon striking. He added that
both he and
Professor Welsh accepted that Andrew did not have
compromised bone strength in 2006.
[96]
Professor Dunn said that the reference on the report to “ethanol
plus plus” would be the
interpretation of the doctor assessing
the patient that he had been drinking. The reference to “GCS 15
out of 15” meant
that the patient was conscious.
[97]
With reference to the trauma and ambulance records stating “head
and face” and “dried
epistaxis”, Professor Dunn
explained that epistaxis is a nose bleed and dried would imply dried
blood near the nose. Professor
Dunn speculated that Andrew could have
been punched on the nose or he could have landed on his nose during
the scuffle. The fact
that the Groote Schuur records indicated “no
facial injury” suggests Andrew had been cleaned up, and there
might not
have been external evidence of an internal nose bleed.
[98]
Professor Dunn was further referred to the evidence in the criminal
trial of witnesses Mr Tollie Badi, a
petrol attendant; Mrs Ross, the
supervisor at the petrol station; and Constable Dreyton, that
Andrew’s face was covered in
blood. He accepted it was quite
clear there was blood, from epistaxis, a bleeding nose, which would
have resulted from trauma to
his face. With reference to the medical
notes recording bruises to his lips and face and “sore on
lips”, Professor
Dunn said this would be consistent with blood
that the witnesses testified about. He would imagine that a
blow to the nose
would reach the lips.
[99]
Professor Dunn accepted during cross-examination that if you are at
least one and a half metres tall,
as it was suggested Andrew was, and
the distance between your feet and the object you strike is a metre,
you would not strike your
head, but he qualified that it is unclear
how Andrew fell against the car.
Testimony of Dr David
Glynne Welsh
[100]
Dr Welsh is a specialist neurosurgeon practising at Vincent Palotti
Hospital and a consultant at the Neurosurgery Division,
Groote Schuur
Hospital. He was previously a consultant at the acute spinal cord
centre at Groote Schuur Hospital. He has worked
in neurosurgery and
as a general surgeon since 1993 both locally and in the UK. Dr Welsh
has an impressive list of presentations
at several neurosurgery and
other congresses.
[101] On 11
September 2006 he performed the operation on Andrew after his injury.
In March 2006, four to five months before
the injury, Andrew had
consulted Dr Welsh with lower back pain. The X-rays showed that the
back was normal and the problem resolved
itself. Dr Welsh was a
witness for the state in the criminal trial.
[102] Commenting on
Oliver’s “falling back” version, Dr Welsh said in
his report that the Plaintiff is lightly
built and if he had fallen
backwards over a short distance, it is improbable that his weight
would have generated sufficient force
to cause a burst of the seventh
cervical vertebrae. Considerable force was the most likely cause of
the injury. The spear tackle
scenario, he said, provides far more
directive compressive force. Dr Welsh favoured that scenario, which
he explained as Andrew
being lifted up and his head pushed against
the car.
[103] Dr Welsh was
referred to his evidence at the criminal trial where he said the
force could have been to the back or the
top of his head. It was put
to him that at the criminal trial he did not at any stage say that
falling backwards was not a probable
scenario. He replied that it was
more complicated than that, he was asked in the criminal trial about
wrestling and falling back
in that context. He clarified that he was
a factual and not an expert witness at the criminal trial. He had not
prepared a report
but had commented on the hospital records and the
trauma report.
[104] The
trauma unit notes which recorded at various points “assaulted
this evening and smashed against vehicle”
and “assaulted
tonight and thrown against a stationary vehicle”, he said, were
not inconsistent with a spear tackle
scenario.
The Biomedical Experts
[105] Mechanical
engineers, Mr Trevor Cloete and Mr Cornel De Jongh testified as
experts for the Defendants and Plaintiffs
respectively. Their joint
minute records their respective mandates and agreement as follows at
paragraphs 12 and 13:
“
12.
The experts note that they were working according to differing
briefs. CDJ [Mr Cornel de Jongh] conducted
a comparative analysis
seeking to compare probabilities of the 2 loading scenarios whereas
TJC [Mr Trevor Cloete] sought to show
that the Defendant’s
loading scenario was possible in principle.
13.
The experts agree that the analysis of CDJ shows that a spear tackle
type scenario is more
likely to result in the observed injury.
However, there is a smaller, but not zero probability that the
observed injury could result
due to a fall as described by the
Defendant. Both reports concur on this point.”
Their respective opinions
are set out below.
Testimony of Trevor
John Cloete
[106] Mr Cloete is
a senior lecturer in mechanical engineering at the University of Cape
Town, a post he has occupied since
2006. He has a special interest in
dynamic bone mechanics which involves the testing of bone at high
speed, and has been engaged
in bone studies for 10 years. He has a
Master of Engineering degree from the University of Stellenbosch and
is currently reading
for a PhD. He supervises Master’s students
at the University of Cape Town, has a number of publications and
reviews articles
for journals on bone testing.
[107] Mr Cloete was
called upon by the Defendants to express an opinion on the mechanism
of injury sustained by Andrew and
whether Andrew’s injury could
possibly have been caused by falling backwards and striking his head
against a stationary motor
vehicle. His report was co-authored by
Claire Lewis, who provided confirmation for issues pertaining to
anatomy.
[108] Mr
Cloete did not simulate Andrew’s fall. He explained he could
not do so as he did not have sufficient
information about velocity,
elasticity or the surface with which Andrew contacted. For this
reason, he performed “a
simple quasi static limit analysis to
assess whether a teardrop fracture is possible in principle.”
[109]
Oliver’s attorneys took four months to respond to a
request to provide a detailed drawing and layout depicting
the design
of Mr Cloete’s and Ms Lewis’s quasi static analysis.
Belatedly, a stickman diagram was provided which was
described as “a
visual representation of the situation considered in the quasi static
limit analysis”. A supplementary
report in response filed
thereafter by Mr De Jongh, Andrew’s expert, criticized in
detail the stickman diagram
inter
alia
for
providing a crude analysis and containing errors of simplistic
mathematical calculations, which ought not to have occurred.
The
criticism was neither challenged nor responded to by Mr Cloete,
although Mr De Jongh was cross-examined at length about it.
[110] Mr
Cloete concluded on the basis of his quasi static analysis that a
compression force could be generated under
quasi static conditions to
cause a teardrop fracture and there appeared to be no mechanical
reason to exclude the falling back
scenario as impossible.
[111]
With regard to paragraph 13 of the joint minute, which records
that the experts agree “that the analysis of CDJ
shows that a
spear tackle type scenario is more likely to result in the observed
injury”, Mr Cloete initially testified that
it was not his
understanding that this confirmed the view that it was more likely
that the injury was sustained due to a spear
tackle. His
explanation as to why paragraph 13 does not mean what it records was
somewhat incomprehensible and perhaps an
attempt to extricate himself
from the agreement recorded in paragraph 13. In this regard he
testified:
“
The
fact that a certain action is more likely to result in a certain
injury, does not mean that the injury has more likely occurred
because of a certain action, that is the bit I disagree with…”
[112] But then
when asked if he agreed with the analysis of Mr De Jongh that a spear
tackle scenario was more likely to result
in the injury, he
unequivocally answered “yes”. He also said he could
see no reason to doubt Mr De Jongh’s
analysis or conclusions.
[113]
Oddly, he then went on to say that whilst the data reveals
that a spear tackle is more likely to cause the injury,
one cannot
deduct from the injury that it came from a spear tackle, a view that
Mr De Jongh debunked with reference to an article,
“A
mechanistic classification of closed, indirect fractures and
dislocations of the lower cervical spine”,
[4]
which he described as the gold standard in mechanistical
classifications. The article refers to classifications of injuries
generated
from a critical retrospective analysis from X-rays of 165
fractures, confirming that one can ascertain the likelihood of the
injury
mechanism from an observation of an injury.
[114] Mr Cloete’s
evidence on what was agreed between the experts in paragraph 13 of
the joint minute was confusing
and his ultimate concession was
obtained after he was recalled by Mr Whitehead to test if he had been
dishonest in testifying what
had been agreed between the experts,
which Mr Whitehead ultimately concluded he was not. Mr Cloete
denied that he was “out
of his biomechanical depth” as
was put to him by Mr Whitehead.
Evidence of Cornelius
Uys De Jongh
[115] Mr De Jongh
is a biomedical engineering expert with 13 years’ experience in
the field of injury biomechanics,
analysing injury mechanics and
causation. He has deposed as an expert in litigation in the USA and
locally on numerous occasions.
He has authored a number of research
papers and journal articles, several on cervical spine injuries, and
has presented at conferences
locally and internationally. Mr De Jongh
is co-inventor of 10 patents. Mr De Jongh is currently a senior
lecturer in biomedical
engineering at the University of Stellenbosch.
He holds the degrees of B. Eng. Mechanical Engineering and MSc.
Mechanical Engineering,
Stellenbosch University (
cum laude
)
and is currently reading for a PhD. Prior to joining the University
of Stellenbosch, he worked as a biomedical engineering project
manager at Leatt Corporation, Cape Town between 2008 and 2019.
[116]
Mr De Jongh was
approached
on
2 October 2019
to give his opinion on the
plausible and probable injury mechanism related to injuries sustained
by Andrew. In particular, he was
asked to opine on which impact (near
vertex of the head or back of the head) was more likely in the
causation of Andrew’s
confirmed C7 compression flexion grade V
injury. Additionally, he was requested to give an opinion on “the
axial compressive
loads (and subsequent likelihood of CF related
fractures), generated in the cervical spine during both impact
types.”
[117] For the
purposes of his report he was required to consider the two opposing
versions of the incident by the Plaintiffs
and the Defendants. For
the purposes of his report, the materials reviewed by Mr De Jongh
comprised the evidence of Nicholas and
Oliver during the criminal
trial, Andrew’s medical records and reports as well as the
expert medical reports of Professor
Dunn and Dr Welsh, and the
biomedical report of Mr Trevor Cloete and Ms Claire Lewis.
[118] Mr De
Jongh did not attempt to simulate the actual incident, given that
there were many unknown variables. Instead,
he carried out a
generalised probability investigation on both the spear tackle and
falling backwards versions. He conducted
tests to illustrate
the compression flexion injury mechanism on both versions using crash
dummies weighing 78 kilograms and 1.79
metres in length. He
compared the results of an impact to the top of the head with one to
the back of the head to ascertain
which point of impact was more
likely to cause a compression flexion injury. For both versions, the
dummies were exposed to the
force under their own body weight.
[119] He
superimposed the data from the tests on a probability injury risk
curve. This, he explained, was a statistical tool
which gives the
probability of the compression flexion neck injury occurring on the
two versions. Applying the data from the crash
dummy tests to the
injury risk curve, Mr De Jongh concluded there was a 35% probability
to sustain a compression flexion injury
if the impact is to the top
of the head and an 8% probability if the impact was to the back of
the head. Mr De Jongh accepted that
a compression flexion injury type
V to C7 can be caused by striking the back of the head against an
object. In this regard he stated
in his report:
“
For
the tests conducted representing the pure flexion or “back of
the head” impact scenario the probability of injury
is below
10% for both tests. If Mr Merryweather did indeed fall backwards
under his own body weight with no constant driving force
behind the
impact in contrast to a spear tackle, it may very well be concluded
that the realistic compressive neck force experienced
by Mr
Merryweather for this impact scenario is quite well represented by
the test result presented above and hence the probability
of injury
occurring in this manner below 10% for a worst case scenario.”
[120] Mr De Jongh
concluded that it is therefore much more likely “that Mr
Merryweather sustained his injuries due to a spear
tackle or being
driven head first into a stationary vehicle than being shoved and
falling over backwards into a stationary vehicle.”
[121]
The unchallenged evidence of Mr De Jongh was that it was highly
unlikely or improbable that Oliver could have moved
out of earshot or
far enough away to not see the impact subsequent to shoving Andrew.
He explained why this was so in an
aid
memoire
on
the time taken to cover 1.5 metres
[5]
in distance if pushed backwards. His
aid
memoire
states
as follows:
“
According
to Defendants expert report:
A study by
Fanta et al
(?) (2012) determined that the velocity of the head of an
individual falling backwards due to a force applied to their chest
was
4965.3 mm/s (standard deviation = 202.6 mm/s) to 5716.5 mm/s
(standard deviation = 290.3 mm/s) with the velocity of the left and
right shoulders being within 106.6 to 903.6 mm/s of the head.”
By taking a velocity of
5000 mm/s (or 5 m/s) as head velocity, and assuming that Mr
Merryweather’s head needs to cover roughly
2 metres to hit the
car (due to the arc through which it needs to travel), it would take
at the very most 400 m sec (0.4 seconds)
for Mr Merryweather’s
head to impact the car since being shoved. It is highly unlikely or
improbable that Mr Scholtz could
have moved out of earshot or far
enough away to not see the impact subsequent to shoving Mr
Merryweather, having only 400 m sec
to do so.”
Mr De Jongh said that in
0.4 seconds one would not be able to turn one’s head away, but
one could move one’s eyes. Mr
De Jongh’s evidence
pertaining to the above was unchallenged.
Space constraint in
likelihood of flexion distraction impact mechanism
[122] Mr De Jongh
testified that it is doubtful that there was enough space on the
sidewalk between Oliver and the front wheel
region of the stationary
vehicle, which according to the testimony of Oliver, was
approximately 1.5 metres, for Andrew, approximately
1.69-metre-tall,
to fall over backwards and impact the back of his head on this region
of the stationary vehicle. If Oliver, attacked
by Andrew, grabbed him
at the side of his shoulder, turned him and pushed him away it would
make more sense that Oliver would hit
the stationary vehicle
somewhere other than his head, at his hips or lower back. It is
reasonable, his report states, to assume
that any person that is
pushed backwards, would first stumble and then fall quickly covering
the 1.5 metre distance (distance stumbled
backwards plus body length
would be greater than 1.5 metres), making it extremely unlikely for a
head first impact. The only plausible
explanation in this case would
be that there was an immediate obstruction at Andrew’s feet
when pushed backwards, and that
he was standing right against Oliver
when he was pushed backward, and that he had to start falling down
(pivoting at feet) immediately,
in order to only cover 1.5 metres and
impact the stationary vehicle head first.
[123] During
cross-examination, Mr De Jongh conceded that if the measurements on
the map, being Exhibit “B”, were
aligned with the
photograph on Exhibit “A”, then the parking line between
parking bays 2 and 3 was incorrectly positioned
on the Engen garage
diagram (Exhibit “B”). During lengthy cross-examination
Ms Gassner put to him the somewhat confusing
proposition that with
the repositioning of the bay 2/3 parking line, the distance between
Oliver’s estimated position and
the intersection of the kerb
and the bay 2/3 parking line should have been taken to be 2.7 metres
and not 1.5 metres. This would
have left sufficient room on Oliver’s
swivel push version for Andrew to have stumbled and lifted his feet
approximately 1.5
metres from point of impact. Mr De Jongh did not
concede this.
Finding
[124] The well-worn
approach when determining which of two mutually destructive versions
should be accepted, as set out in
Stellenbosch Farmers’
Winery Group Ltd and another v Martell et Cie and Others
2003 (1)
SA 11
(SCA) at paragraph 5, is that to come to a conclusion on
disputed issues, a court must make findings on the credibility of
witnesses,
their reliability and the probabilities.
“
On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So too on a number of peripheral
areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses, (b) their
reliability; and (c) the probabilities.”
See also
Minister of
Safety and Security v WH
2009 (4) SA 213
ECD at 216 J-217F.
[125] The eye
witness testimony of events preceding Andrew’s injury must be
assessed in context. It is the recollection
of witnesses of actions
and events which occurred with speed, within minutes, fourteen to
fifteen years before the witnesses testified.
It is moreover the
recollection of witnesses who have all admitted to having difficulty
remembering. The fact that they were assisted
by the transcript of
the criminal proceedings does not detract from the fact that their
independent recollections had dimmed significantly.
This must be
borne in mind in assessing their credibility, reliability and the
probabilities as applied to the mutually destructive
versions.
Oliver’s
Self-Defence Version
[126] Oliver’s
self-defence version requires me to accept that Andrew, unprovoked
and with only Progress for support,
picked a fight with Oliver, who
not only was in a larger group, but was also physically bigger than
him. This version has Andrew
initiating the events of the night by
swearing aggressively, relentlessly and in a threatening manner for
absolutely no reason
whatsoever at Oliver and his group. This simply
does not make sense, Andrew’s level of “tipsiness”
notwithstanding.
A more probable catalyst and one that appears to be
borne out by the evidence is the “gay guys” comment,
which Oliver
did not dispute could have been made, his testimony
being that something was said emanating from his friend group to
which Progress
reacted. Joel too conceded he did say something but
could not remember exactly what he said. Oliver’s attempt to
dissociate
himself from what was said, claiming not to have heard
because he was enjoying a friendly conversation with Progress, is
improbable,
unconvincing and contrived. Events that night were
anything but friendly.
[127] The
reliability of Progress’s evidence on this aspect is not in my
view tainted by the fact that there were inconsistencies
between the
evidence of Progress and that of Nicholas and Andrew. Despite these
inconsistencies, Progress did not have the demeanour
of an untruthful
witness, but one who was struggling to remember many years after the
event. Progress readily conceded this
and that it was difficult
for him to give an accurate account of events that evening and of the
scuffle. This is hardly surprising
given the time lapse. That he
would have remembered the “gay guys” comment would not be
surprising given that, for
him, this started the unfortunate chain of
events that night. The inconsistencies in my view therefore do not
impugn Progress’s
credibility and memory on the “gay
guys” comment, something which importantly was not challenged
under cross-examination
and should be accepted as correct.
[128] As was said
in
President of the Republic of South Africa v South African Rugby
Football Union and others
2000 (1) SA 1
(CC) at para 61, the rule
adopted by our courts is that if a point in dispute is left
unchallenged in cross-examination, the party
calling the witness is
entitled to assume that the unchallenged witness’s testimony
was correct. This applies to Progress’s
evidence, which
certainly did not fall into the category of evidence “of so
incredible and romancing a nature that the most
effective
cross-examination would be to ask him to leave the box”, as
referred to at paragraph 64 of the judgment. See also
Small v
Smith
1954 (3) SA 439
(SCA) at 438 G-H. The probabilities
therefore support that the “gay guys” comment emanating
from Oliver’s group
was the catalyst for the unfortunate events
that ensued thereafter.
[129] The
evidence on the ensuing scuffle up to the time of the crucial push by
Oliver is that of give and take on both
sides. However, I note that
the averment in the plea that Andrew and Nicholas taunted and mocked
Oliver was not borne out in evidence.
Nicholas did not recall this
and was not challenged on this issue under cross-examination, perhaps
rightly so as he did not pertinently
dispute that he taunted Oliver.
I note also apropos the averment in the plea that Nicholas swore and
grabbed Oliver’s
chest in a threatening and aggressive manner,
that Nicholas’s evidence, that he grabbed Oliver’s shirt
after Oliver
had grabbed his shirt and pushed him back, whereafter he
was thrown to the ground and kicked, was not challenged, and prevails
on the authority of
President of Republic of South Africa supra.
Nicholas moreover denied swearing at Oliver but thinks he said
“back off”. Progress’s unchallenged evidence was
that Nicholas was trying to stop the fight.
[130] Joel’s
concession when referred to the criminal record that he could have
kicked Nicholas, contrary to his earlier
evidence to the effect that
he did not make contact; Nicholas’s evidence in the criminal
trial that he was kicked repeatedly;
Joel’s attorney’s
failure to put to Nicholas that he was only kicked once; as well as
Nicholas’s testimony in
this trial that he was kicked multiple
times, is suggestive that Joel and Oliver’s group were the
aggressors and that the
violence emanated from them. Mr
Whitehead’s submission that Joel was drunk, violent and out of
control is understandable
in the circumstances. I note also that it
is improbable that Oliver could not have heard Joel’s
confrontation with Nicholas,
there being nothing wrong with his
hearing.
[131] Turning
to the crucial push, it is clear from the extracts of the record of
this trial quoted above that
Oliver struggled to explain simply and
clearly on his own the issues of Andrew’s approach, the alleged
push/ smack, his response
to it and why the minimal proportionate
force employed resulted in the serious injury sustained. Mr Whitehead
in argument questioned
how, if Oliver was walking from the ATM area
to the awaiting car, does Andrew come around behind on his right and
how do we get
the complicated left and right shoulder evidence? Ms
Gassner’s response that it was clear that Oliver was stepping
to the
right and swivel pushing to the left does not detract from
Oliver’s confusing evidence as per the extract from the record
above, and the confusion lingers.
[132] Then there
is the fact, as referred to in argument by Mr Whitehead, of Oliver’s
evidence both in the rescission
application and in the criminal trial
to the effect that he pushed Andrew away to avoid him, Oliver, being
smashed into a stationery
car, evidence which did not feature in this
trial. Whilst it is so that Oliver was not cross-examined on this
aspect, it is unlikely
that he would not have remembered that he was
in danger of being smashed into a stationary vehicle, and testified
about this, given
its relevance to his self-defence version.
[133] On the
unchallenged evidence of Mr De Jongh that it would have taken 0.4 of
a second for Andrew’s head to make
impact with the car, during
which time it would have been highly unlikely for Oliver to have
moved out of earshot or far enough
away not to have seen the impact
of Andrew hitting the car, Oliver’s evidence that he did not
register or hear the impact
cannot be accepted, especially given his
evidence that there was nothing wrong with his hearing or sight.
[134]
Oliver’s self-defence
version is not supported by experts Dr Welsh, Mr De Jongh and Mr
Cloete, all of whom testified that
a spear tackle was the more
probable cause of the compression flexion injury Andrew sustained.
Professor Dunn, in whose opinion
the probabilities were equal on both
versions, certainly did not reject the spear tackle version. The fact
that the manoeuvre as
demonstrated by Nicholas involved the back of
the head being struck does not detract from the experts’
support for a spear
tackle scenario. None of the experts excluded a
spear tackle with injury to the back of the head.
Oliver’s
version of pushing Andrew away with outstretched arms “relatively
extended below shoulder level” when
he grabbed Andrew’s
shoulders, as testified in this trial, or of releasing him as he
testified in the criminal trial, would,
according to Dr Welsh, have
been unlikely to generate sufficient force for this type of injury.
A spear tackle, in his view,
would have generated the directive
compressive force resulting in the injury.
[135] Nor is
Oliver’s version supported by the agreement of the
biomechanical experts as recorded in paragraph 13 of
their joint
minute, namely, that a spear tackle type scenario is more likely to
result in the observed injury. Here, it must
be recalled that
Mr Cloete’s unsuccessful attempt to extricate himself from the
plain meaning of paragraph 13 and his obfuscatory
explanation as to
why paragraph 13 was drafted as it was, was followed by him
ultimately conceding that he agreed that a spear
tackle type scenario
was more likely to result in the injury.
Space constraints
argument
[136] The evidence
of Mr De Jongh that if Andrew, who is 1.69 metres tall, fell back at
a distance of 1.5 metres from the
car, as testified by Oliver, he
would have hit the stationary vehicle somewhere other than his head,
does not support Oliver’s
version. Ms Gassner’s
submission to Mr De Jongh during cross-examination of a hypothetical
scenario based on the parking
bay line between bays 2 and 3 being
incorrectly positioned did not extract a concession from Mr De Jongh
that the estimated distance
of 1.5 metres, as testified by Oliver,
was incorrect and should in fact be 2.7 metres. Oliver’s
evidence of the distance
being 1.5 metres remains unsettled, and thus
weakens the probabilities in his favour, given Mr De Jongh’s
evidence that Andrew
would not have hit his head at this distance.
[137] The fact
that during the criminal trial Oliver’s self-defence version
was not put by his attorney to Andrew and
Nicholas in
cross-examination also does not favour Oliver’s self-defence
version. Nor does Oliver’s testimony that
he did not know why
he did not tell his attorney to inform the senior public prosecutor
that Nicholas and Andrew had assaulted
him. Both Mr Whitehead in this
trial and the prosecutor in the earlier criminal trial took issue
with the handling of the self-defence
version in the criminal trial.
Joel’s evidence that he did not tell his attorney Mr Booth that
he was acting in a protective
capacity towards Oliver as his parents
asked him not to talk too much about the incident does not assist the
probabilities in favour
of the self-defence version. Nor does the
evidence of Shane Wolendorp in the criminal trial, to the effect that
what he could see
was not self-defence, favour the self-defence
version.
[138] I note
that in his answering affidavit in the rescission application, Andrew
referred to the attempt to explain
and justify why the self-defence
version was not put to him or Nicholas as vague, imprecise and
unacceptable. The submission was
moreover made that Oliver, at the
rescission application deliberately embellished his version to
concoct a version of self-defence.
[139] Also not in
sync with Oliver’s self-defence version is his inability to
explain why, if the Merryweather brothers
had been the aggressors,
Nicholas would have frantically tried to stop Mrs Killian’s car
from leaving. Nicholas’s evidence
that one of the boys in the
car said “come, come do you want some more”, which was
unchallenged, supports the probabilities
that Oliver’s group
could have been the aggressors and that Nicholas wanted to stop the
perpetrator from leaving in the Killian
car.
[140] In light of
all of the above and, crucially, Oliver’s inability to clearly
explain Andrew’s approach and
threatened attack, the swivel
push manoeuvre in self-defence, and how the catastrophic injury
ensued if, on his version, he used
only such force as was
commensurate with the attack, the probabilities do not favour his
version of self-defence. Oliver’s
confusing self-defence
version does not have the ring of truth and thus impugns his
credibility. Moreover, in the telling of his
version he did not
establish that the swivel push, as a means of defence, with
sufficient force to generate the catastrophic compressive
flexion
injury, was commensurate with the danger of a push/ smack. He also
failed to adequately explain why he did not simply avert
the attack
by running to and taking refuge in the awaiting car. Oliver in my
view has thus failed to establish the requirements
for a plea of
self-defence to succeed as set out in
Ntsomi v Minister of Law and
Order
1990 (1) SA 512
(CPD) at 526 G-H:
“
(1)
There must have been an unlawful attack or threatened attack and the
victim must have had reasonable grounds for believing that
he was in
physical danger.
(2) The means of defence
must have been commensurate with the danger and dangerous means of
defence must not have been adopted when
the threatened injury could
have been avoided in some other reasonable way.”
See also
Mngomezulu
v Ethekwini Metropolitan Municipality
[2019] ZASCA 91
at para
17.
Courts
focus on two separate aspects in this respect: the reaction must be
necessary and not excessive. The defender may only use
the means and
methods which are reasonably necessary to repel the wrongful attack
and protect the threatened interest, which is
tested objectively.
This does not imply that the bounds of defence are exceeded if other
effective methods were available or less
dangerous actions could
possibly have been taken, but the essential question is whether the
particular method applied was, in view
of the relevant circumstances,
reasonable. If it was excessive and unreasonable, the bounds of
defence were exceeded and the conduct
was therefore wrongful.
[6]
[141] Oliver’s
self-defence version accordingly does not pass muster. I now turn to
consider whether the Plaintiff’s
spear tackle version does.
Evidence about the
alleged spear tackle
[142] Nicholas’s
description of the spear tackle scenario was simple and clear as was
his demonstration thereof. It
involved Oliver picking Andrew up by
the waist, tilting him backward and throwing him against the car with
the impact to the back
of his head. He was, as alluded to
above, cross-examined robustly about his evidence in the criminal
trial that he was not
sure if his brother was picked up by the waist
or by the shoulders. His response that he did not know why he said
his brother was
picked up by the shoulders and his insistence that he
was picked up in the waist area is not in my view destructive of his
spear
tackle scenario, supported as it is by the expert evidence. Nor
in my view does it impugn his credibility. In this regard
he
was willing to make concessions, as he did when he said the shoulder
lifting scenario could potentially have been the case.
However, he
insisted as aforementioned that his brother was picked up by the
waist.
[143] Although Mr
De Jongh’s basic assumption that the spear tackle involved an
impact to the vertex or top of head
did not accord with Nicholas’s
evidence of a spear tackle with the impact to the back of the head,
Mr De Jongh’s tests
did consider a back of head impact and are
not irrelevant, as contended by Ms Gassner. On the basis of Mr
De Jongh’s
crash dummy tests and the injury risk curve, an
impact to the back of the head was not excluded from sustaining a
compression flexion
injury, but lowered the probability to about 8%.
Here, it must be borne in mind that Mr De Jongh’s spear tackle
scenario
did not assume additional force, unlike the situation which
prevailed, even on Oliver’s version. It must also be noted that
none of the experts rejected a spear tackle with a blow to the back
of the head. Nor was it suggested that the spear tackle manoeuvre
as
demonstrated by Nicholas, which involved the back of the head being
struck, made the manoeuvre any less a spear tackle.
[144] Ms Gassner
submitted that Mr De Jongh’s testimony was that the manoeuvre
described by Nicholas was not easy to imagine.
On an examination of
the record however, it appeared, as pointed out by Mr Whitehead, that
what Mr De Jongh had difficulty imagining
was someone being thrown
and flying through the air. That was not the manoeuvre Nicholas
demonstrated. He demonstrated Andrew being
picked up tilted backwards
and then thrown against the car.
[145] Given the
relative heights and weights of Oliver and Andrew, I do not accept,
as submitted by Ms Gassner, that the
spear tackle manoeuvre would
have been difficult for Oliver to accomplish. Oliver’s
weight was 73 kilograms and his
height 1.77 metres. Andrew’s
weight was estimated as somewhere between 52 and 60 kilograms and his
height 1.69 metres.
At the least Andrew would have been 13 kilograms
lighter and at most 21 kilograms lighter. Here it must be noted that
Andrew’s
testimony about his possible weight range did not
discredit him as a witness, as suggested by Ms Gassner, but was yet
another example
of the difficulties of recalling details many years
later.
Did Nicholas see
Andrew fall?
[146] Ms Gassner
submitted that Andrew’s evidence in the criminal trial that
immediately after his fall he saw Nicholas on
the ground in the ATM
alcove facing away from him is destructive of the single eye witness
account on which the spear tackle rests.
Her reasons for
rejecting Andrew’s explanation that he was incorrect when he
said this at the criminal trial as he
was getting his memory orders
wrong, loses sight of the undisputed testimony of Andrew that he was
in tremendous pain and confusion
when he woke up immediately after
the fall. He was in and out of consciousness. He said he
was still in a state of
confusion when he testified at the criminal
trial and he referred to the incomplete record where he was trying to
tell the court
he was going in and out of consciousness. This,
together with Andrew’s general amnesia about what happened
between the time
he first noticed Oliver and when he woke up in a
confused state, calls into question the accuracy of his evidence as
to where Nicholas
was and whether he saw the fall. The evidence of
Nicholas in contrast on this aspect was unconfused and clear, as was
his demonstration
of the spear tackle. Andrew’s evidence is
thus not destructive of the single eye witness evidence on which the
spear tackle
rests.
Trauma to Andrew’s
face
[147] Apropos
trauma to Andrew’s face during the fight, one can accept from
the evidence of Professor Dunn and Ms Howes
that there was trauma to
Andrew’s face from epistaxis, or a bleeding nose. Ms Howes
assumed that Andrew had been assaulted
and punched in the nose. The
hospital notes refer to bruises to lips and face. The probabilities
are that what Andrew perceived
to be a black eye was the trauma which
emanated from the scuffle. The probabilities do not exclude that it
was either Oliver or
Joel who caused the trauma to Andrew’s
face.
Inconsistencies and
contradictions of Plaintiff’s factual witnesses
[148] The
inconsistencies and contradictions in the testimony of Andrew’s
factual witnesses have been alluded
to above. These notwithstanding,
Andrew’s factual witnesses did not strike me as untruthful or
unreliable. When confronted
with discrepancies, be it Nicholas’s
shoulders versus waist spear tackle demonstration, Andrews’s
versus Nicholas’s
evidence on whether Nicholas saw the fall, or
Progress’s versus Nicholas’s recall of events, or indeed
peripheral issues,
such as Nicholas being unable to identify Oliver
at an identity parade, Andrew’s testimony about his weight or
Progress versus
Nicholas as to when the latter arrived at the scene,
they candidly admitted to mistakes when required, made
concessions and
offered plausible explanations. Their demeanour was
not that of lying and unreliable witnesses. Then too, as
aforementioned, their
evidence and indeed that of all factual
witnesses must be considered in the context of the obvious
difficulties with memory recall
so many years later. Their
inconsistencies are understandable in witnesses who testify many
years after an event. It would have
been surprising if there were
none.
[149] In
Santam
Bpk v Biddulph
2004 (5) SA 586
(SCA) at paragraph 10 Zulman JA,
commenting on a witness that was not satisfactory in all respects,
aptly said,
“
However,
the proper test is not whether a witness is truthful or indeed
reliable in all that he says, but whether on a balance of
probabilities the essential features of the story which he tells are
true”.
Notwithstanding
inconsistencies, what can be said about the Plaintiff’s factual
witnesses is that on a balance of probabilities
“the essential
features of the story they tell are true”. Importantly, their
spear tackle version is supported by the
expert evidence of the
biomedical experts, Dr Welsh, and deemed equally probable with the
Defendants’ version by Professor
Dunn. These factors tip the
probabilities in favour of Andrew.
[150] Regard
being had to all of the above in a balancing of the self-defence
version of Oliver analysed above, as against
the spear tackle version
of Nicholas, the probabilities favour the spear tackle version.
[151] The basic
ingredients for a plaintiff’s cause of action in the case of an
Aquilian action for damages for bodily
injury as set out in
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838 H- 839 are
“
(a)
wrongful act by the defendant causing bodily injury,
(b) accompanied by fault
in the sense of
culpa
or
dolus
on the part of the
defendant, and
(c)
damnum
, ie
loss to plaintiff’s patrimony, caused by the bodily injury.”
See also
Roux v
Hattingh
2012 (6) SA 428
(SCA) at paras 17, 18 and 26.
[152] On a conspectus of
all the evidence, Andrew has established these basic ingredients on a
balance of probabilities. He has
established that Oliver wrongfully
spear tackled him causing bodily injury. Inherent in the spear tackle
is fault in the sense
of
dolus
, (which given all the
circumstances resonates with
dolus eventualis),
or at the very
least fault in the sense of
culpa.
Loss to Andrew’s
patrimony cannot but flow from the aforegoing. On a determination of
the merits of Andrew’s
damages claim, I accordingly find that
the injuries sustained by Andrew were caused by his being spear
tackled by Oliver, and that
Oliver is liable for such injuries.
Costs
[153]
Given that I have found in favour of Andrew on the merits, he
is entitled to his costs in this trial including those
of his expert
witnesses and Professor Bonnici as agreed. The latter furnished a
report. He is also entitled to the costs of the
appeal and those
costs as well as his costs in the appeal and those costs in the
rescission application not covered by the “Third
and Fourth
Defendant’s written tender”.
The Fourth Defendant’s
liability for costs
[154] Andrew seeks
an order that the Fourth Defendant, Oliver’s father, be
directed to pay the costs of the suit jointly
and severally with
Oliver, including the costs of the appeal, as well as those costs in
the rescission application not covered
by the “Third and Fourth
Defendant’s written tender”. As aforementioned in this
judgment the Fourth Defendant
was joined as co-defendant in terms of
an order granted at the hearing of the rescission application
pursuant to a joinder application
brought by the First Plaintiff. The
Fourth Defendant, in his plea, disputes liability for costs on the
claim against his son Oliver.
[155] When the
default judgment was set aside, the appeal court ordered on 14
December 2015 that the costs tendered by the
Third Defendant were
made an order of court and that the costs of the appeal and any other
costs not covered by the tender stood
over for determination by the
trial court. It is noted that the costs tender which was incorporated
in the appeal court order was
a tender by the Third Defendant,
Oliver, and not his father, the Fourth Defendant. The Fourth
Defendant bound himself as surety
and co-principle debtor for the due
performance by the Third Defendant of the obligations arising out of
the tender.
[156] I note that
the allegations in the First Plaintiff’s affidavit in the
joinder application in support of a costs
order against the Fourth
Defendant related solely to his involvement in the granting of the
default judgment and in the rescission
application. There is, as
contended on behalf of the Fourth Defendant, no evidence before this
Court regarding the Fourth Defendant’s
involvement in the
action against his son Oliver, which Oliver subsequently defended.
The fact that Oliver might have stated in
cross-examination that he
reported to the Fourth Defendant about the case does not in itself
provide an evidentiary basis to infer
that the Fourth Defendant was
in control of the proceedings in this action.
[157] There is
also, as contended on behalf of the Fourth Defendant, no evidence
before me that the Fourth Defendant will
benefit financially if
Oliver successfully resists Andrew’s delictual claim.
[158] In
EP
Property Projects (Pty) Ltd v The Registrar of Deeds, Cape Town and
another and four related applications
2014 (1) SA 141
(WCC) it
was accepted in principle that potentially a non-party funder could
be liable, in the exercise of the court’s discretion,
for an
adverse costs order made against the funded party. However, in that
case, the court ordered the funder to pay the costs
in circumstances
where she was in full control of the litigation, the claim being
ceded to her and she stood to benefit substantially
financially if
the funded party was successful. See also
Gold Fields Limited and
Others v Motley Rice LLC
2015 (4) SA 299
(GJ) at paras 44 –
49 and
Price Waterhouse Coopers Inc and Others v IMF (Australia)
Ltd and Another
2013 (6) SA 216
(GNP).
[159] The
circumstances of this case are distinguishable in that the funders in
those cases were funding the Applicant or
Plaintiff and stood to
receive a share of the spoils.
The cases cited above are
not authority for making a costs order against a father on the
tenuous basis that he may be financially
assisting his adult son in
resisting a delictual damages claim.
[160] Oliver is an
adult. There is no evidence before me warranting a costs order
against his father as opposed to against
him and I am in the
circumstances disinclined to grant the costs order against the Fourth
Respondent as sought.
[161] Oliver, as the
Third Defendant, is accordingly liable for the costs of suit, the
cost of the appeal and such untendered costs
as there might be in the
rescission application. He is also liable for the expert fees.
The evidence does not however support
an award of a special costs
order against Oliver in terms of Rule 37(9)(a)(ii), being attorney
client costs for failing to a material
degree to promote the
effective disposal of the litigation.
[162] I
accordingly order as follows:
1.
The First Plaintiff’s claim against the Third Defendant
succeeds on the
merits.
2.
The Third Defendant shall pay the First Plaintiff’s costs in
this action as
well as the First Plaintiff’s costs in the
appeal on a scale as between party and party.
3.
The Third Defendant shall pay those costs of the First Plaintiff as
are not covered
by the Third Defendant’s tender in the
rescission application, such costs to be on a scale as between party
and party.
4.
The Third Defendant shall pay the fees of the following experts:
Dr
Welsh, Mr De Jongh and Professor Bonnici.
JUDGE
Y S MEER
For the
Plaintiffs:
Adv B Gassner
SC
As instructed
by
DSC
Attorneys
For the
Defendants
Adv J Whitehead SC et Adv S Botha
As instructed by
Chennells
Albertyn
[1]
Although
the particulars as amended still refer to the First and Second
Defendants, as aforementioned, they fell out of the proceedings
once
default judgment was granted against the Third and Fourth Defendants
only.
[2]
Criminal
trial record page 514 line 17.
[3]
Ibid
page
1077 line 1.
[4]
Allen,
Ferguson, Lehmann and O’Brien
Spine
Vol
7, no 1 (1982).
[5]
This,
according to the evidence, was the estimated distance from the push
to the point of impact.
[6]
JR
Midgley in
LAWSA
vol
15 (3 ed) at 113.