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[2017] ZAGPJHC 449
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S M v Bennett and Another (A5004/2016) [2017] ZAGPJHC 449 (12 October 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A5004/2016
In
the matter between
S
M APPELLANT
and
STEPHEN MICHAEL
BENNETT FIRST
RESPONDENT
RYAN ANDRE
ASPELLING SECOND
RESPONDENT
J
U D G M E N T
VAN
OOSTEN J:
Introduction
[1]
‘There is nothing to be found in human eyes, and that is their
terrifying and dolorous enigma, their abominable and delusive
charm.
There is nothing but that which we put there ourselves. And that is
why honest gazes are only to be found in portraits.’
[1]
The aftermath of the appellant’s perceived gaze in the
direction of a table in the Appleseed Cocktail Bar (Appelseed), in
Vanderbijlpark, at which the first respondent and the respondents’
girlfriends were seated, lies at the heart of the litigation
between
the parties eventually culminating in the appeal presently before
this court.
[2]
Arising from the incident, the appellant (M) and D D (D), who were
together that evening, separately sued the respondents for
the
damages they allege they suffered as a result of an assault by both
the respondents (interchangeably referred to as the respondents
or
Bennett and Aspelling respectively). The two actions were
consolidated and came to trial before Collis AJ. After the conclusion
of the hearing, and on 28 January 2015, judgment was given in terms
of which M’s claim was dismissed with costs, including
the
costs of senior counsel, and judgment granted in favour of D for
payment by both respondents, jointly and severally, of the
amount of
R100 000.00 and costs on the High Court scale. M sought and the
court a quo granted leave to appeal to this court.
Background:
The trial and judgment of the court a quo
[3]
The trial lasted for 11 days: 7 days from 2 October 2013 to 10
October 2013 and a further 4 days from 9 December 2013 to 12
December
2013. Argument was heard in 2014. Altogether 12 witnesses testified,
6 for M and D and 6 for the respondents. In addition
a video
recording obtained from a single CCTV camera located at and focussed
on the bar section of Appleseed, served before the
court a quo and
was played, referred to, meticulously analysed and hotly debated both
in the evidence tendered as well as in argument
both in the court a
quo and in this court.
[4]
The facts of the matter, as well as the evidence adduced at the
trial, are comprehensively set out in the judgment of Collis
AJ. I do
not consider it necessary to repeat the evidence, except insofar as
is necessary for the purposes of this appeal. I propose
to deal,
where relevant, with the evidence of the
dramatis
personae
in
this matter, who are, of course, the parties to the action, and, in
addition thereto, Chipo Benikwa (Benikwa), David Jonathan
Bacchus,
[2]
(Bacchus) and Pietro Pozzan (Pozzan), who testified for the
plaintiffs, and Ms Kerry-Leigh Kinnear (Kinnear) and Ms Gillian
Kritzinger
(Kritzinger), who were called to testify for the
plaintiffs. Just to put them into proper perspective: Benikwa was the
bartender
that evening; Bacchus and Pozzan were patrons at Appleseed
and together in a group of friends; Kinnear at the time was the
girlfriend
of Bennett, and Kritzinger, the girlfriend of Aspelling,
and they, as a group of four, attended Appleseed to celebrate the
birthday
of a mutual friend, one Daniel Darosha.
[5]
In sum the court a quo, in regard to D’s claim, found that
Bennett and Aspelling were acting in self-defence in respect
of the
first incident, which had occurred inside Appleseed, but not in
respect of the second incident having occurred outside Appleseed
in
the parking area, which was held to be an act of revenge.
[3]
As for M’s claim the court a quo found that Aspelling was
acting in self-defence, in respect of an unlawful attack perpetrated
on him by M and D and that ‘Bennet’s conduct was a lawful
attempt to assist Mr Aspelling in averting the attack by
Mr M’
and that Bennett accordingly also acted in self-defence in relation
to M.
[4]
Discussion:
the judgment of the court a quo
[6]
The credibility of the witnesses was relentlessly attacked by both
sides. The witnesses were cross-examined at nauseam in regard
to
every possible aspect of the case. Their cross-examination extends
into hundreds of pages and we were required to trawl through
a
formidable record, consisting of 14 volumes, running into 1461 pages.
Voluminous heads of argument, once again traversing the
evidence,
have been filed. The video footage and the photographic images taken
of certain movements and events was subjected to
minute scrutiny and
notably differently interpreted not only by the witnesses but also
counsel on both sides and at times also
the learned judge a quo.
[7]
Although the credibility of the witnesses lies at the heart of this
case the court a quo has regrettably not made a single finding
in
regard thereto.
[5]
Counsel for
the respondents sought to find credibility findings hidden in the
findings made in regard to probabilities. The argument
is
misconceived.
[6]
The correct
approach, it has been held,
[7]
is that findings of credibility cannot be judged in isolation but
require to be considered in the light of proven facts and the
probabilities of the matter under consideration. A trial court is
enjoined where required to do so, to make credibility findings
in
order not only to inform the parties thereof but also to enable a
court of appeal should the occasion arise, to assess the credibility
findings which are of vital importance as the trial court, having had
the opportunity to observe the witnesses as they testified,
often is
in better position than the court of appeal to assess aspects of
credibility, for example demeanour. In the present matter
this court
is disadvantaged without the benefit of credibility findings made by
the court a quo resulting in this court now having
to assess
credibility afresh to which I shall revert.
[8]
The learned judge a quo proceeded from the following premise
[8]
:
‘
In the present
matter, the defendants admitted the attack on the plaintiffs,
however, they deny the manner in which the attack occurred
as alleged
by the plaintiffs. The defendants plead justification for their
attack on the plaintiffs. Therefore the defendants bear
the onus of
proving a justification or excuse of the attack that they admit.’
The
premise is factually incorrect: in regard to the M claim,
[9]
Bennett
[10]
pleaded a denial
that ‘he assaulted the plaintiff in the manner alleged or at
all’. Aspelling
[11]
pleaded an admission that ‘he hit the plaintiff as alleged’
and justification in regard thereto ‘as the plaintiff
had
attacked him and the second defendant’s actions were necessary
for his own protection’ and further a denial that
‘he
kicked the plaintiff as alleged’.
[9]
The learned judge a quo identified the crux of the dispute lying in
an answer to the question ‘How did the whole incident
on the
night in question start’? Having summarised the evidence
adduced the learned judge a quo proceeded to find three
improbabilities, which in my view deserve comment. The first is D’s
evidence that he was unaware of an exchange of words
between M
and Bennett, which the learned judge reasoned, given the proximity of
the bar counter (where D was standing at that time)
to the table
where Bennett and his friends were sitting, ‘is unlikely’.
I am unable to agree. D testified that the
bar was noisy at the time,
that he was ordering a second drink at the bar and facing the barman
away from the table where Bennett
was seated, and therefore not
looking in in Bennett’s direction and by necessary inference he
was unable to overhear the
conversation. D’s evidence on this
score was corroborated by the bartender at Appleseed at the time,
Chipo Benikwa. Having
regard to these facts, I can see no reason for
the finding that D’s inability to hear the conversation, which
it must be
remembered consisted of a few spoken lines only, was
‘unlikely’. It is interesting to note that Kritzinger,
likewise,
testified that she did not hear the conversation while she,
it must remembered, was seated with Bennett at the table. No
probabilities
arise from their inability to hear exactly what was
said by others: this is exactly what is to be expected in a busy bar
with competing
sounds of loud music playing and people talking, and,
as for D, his attention focussed away from the conversation.
[10]
The second improbability found by the learned judge a quo concerns
M’s evidence that Aspelling initiated the attack on
him without
Aspelling ‘having been privy to any exchanged words between
Bennett and himself, and that the attack was completely
unprovoked’.
[12]
I am
unable to agree. M’s evidence that he was attacked by Aspelling
was corroborated by Benikwa, as well as Bacchus and
Pozzan, who were
together in Appleseed with friends of theirs. Their evidence stands
and was not rejected by the court a quo. The
respondents’
witnesses moreover all testified that Aspelling did not immediately
join them at their table just after they
had entered Appleseed.
Aspelling confirmed that on his way to their table, he walked over to
M and there told him that it was rude
to stare. It is accordingly
abundantly clear that Aspelling approached M while Bennett and their
girlfriends were already seated
at their table, which lends credence
to M’s version. The court a quo’s finding accordingly
cannot be sustained in the
face of the objective corroborative
evidence given by three independent witnesses.
[11]
Thirdly, the court a quo found the respondents’ version
probable to the effect that M and D ‘were both earlier
engaging
in staring at the table where Ms Kinnear and Ms Kritzinger were
seated’ and that the plaintiffs were both involved
during the
exchange of words with Bennett. The second factual finding is based
on an incorrect assessment of the evidence. None
of the respondents’
witnesses testified that D was involved in the exchange of words. Be
that as it may, a glaring inconsistency
in the evidence of Kinnear
seems to have been overlooked. Ms Kinnear testified that she was
first to take a seat at the table and
‘just saw these men
(referring to M and D) that were
undressing
me
with
their eyes, it was very disturbing for me. I do not know if I can
but
it looked like they wanted to take us home and just do what
[indistinct].
And I then said to Gillian (Ms Kritzinger) can we go somewhere else,
just to avoid conflict.’ In cross-examination
she expounded
that the way in which they were staring, triggered the thought that
the men wanted to take them home and ‘do
nasty things’ to
them. She told Bennett that ‘these old men are staring at us’
who then remarked generally that
it is rude to stare to which M, who
must have overheard the remark, replied ‘Ja, it is hey’.
Bennett then said to M
‘
listen
now guys, the girls came with us and they are going home with us
’.
M asked Aspeling ‘do you think you are strong?’ to which
M replied ‘if you youngsters were not here
we
would take your girls home and f… them
that
is how strong we are’.
[13]
[12]
The evidence of Kinnear, in my view, was plainly unsatisfactory. She
was unable to explain the seemingly imaginary co-incidence
that her
initial thought was verbally expressed moments later by M. Bennett
moreover testified that he said to M that ‘the
girls are here
with us, so stop staring’ and therefore did not confirm her
version that he had told M ‘listen now guys,
the girls came
with us and they are going home with us’.
The
onus of proof
[13]
The pleadings determine the onus of proof. In regard to the alleged
assault, Aspelling bears the onus of proving the justification
relied
upon.
[14]
[14]
Bennett’s denial of the alleged assault on M casts the onus on
M to prove the assault.
[15]
Mutually destructive versions are before this court and the
well-entrenched test enunciated in
National
Employers’ General Insurance Co v Jagers
[15]
applies.
The
credibility of the witnesses
[16]
I do not consider it necessary to traverse the numerous arguments
advanced in regard to the credibility of the witnesses. I
have
already referred to the absence of credibility findings made by the
court a quo. To this I need to add that the court a quo’s
finding in regard to holding Bennett liable for the assault on D
during the second incident, outside Appleseed, implies that his
version as to the events, was disbelieved. This must be so as Bennett
testified that he had only, by way of warding off the attack
on him
by D, served 5 to 6 blows to D’s body while D was on top of him
and choking him with both hands around his throat.
Bennett conceded
that he had inflicted all the injuries D has sustained that evening.
It is common cause that those injuries were
of an extremely serious
nature. Common sense and sound logic dictate that D’s injuries
could not have been caused by the
actions of Bennett as described by
him.
[17]
I am satisfied that the credibility of the witnesses must be assed
afresh by this court. In
Santam
v Biddulph
[16]
the Supreme Court of Appeal held:
‘
Whilst a court of
appeal is generally reluctant to disturb findings which depend on
credibility it is trite that it will do so where
such findings are
plainly wrong (
R v Dhlumayo and Another
1948 (2) SA 677
(A)
706). This is especially so where the reasons given for the finding
are seriously flawed. Over-emphasis of the advantages which
a trial
court enjoys is to be avoided lest an appellant’s right of
appeal ‘becomes illusory’ (
Protea Assurance Co. Ltd. v
Casey
1970 (2) SA 643
(7) 648 D-E and
Munster Estates (Pty)
Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) 623H –
624A). It is equally true that findings of credibility cannot be
judged in isolation but require to be considered
in the light of
proven facts and the probabilities of the matter under
consideration.’
[18]
In assessing the credibility of the witnesses the point of departure,
and decisive of this matter, is to consider the nature
of the
injuries suffered by M and D at the hands of the respondents. M’s
injuries are described as
‘
Multiple
contusions and lacerations, including:
·
Left eyebrow laceration approximately 1 cm long;
·
Nose laceration approximately 0.3 cm long with nasal bone fracture;
·
Bruising of left periocular of approximately 2.5 cm in diameter;
·
Bruising of lower eyelids maxilla of 1 x 2 cm;
·
Bruising of right lateral torso of 5 x 3 cm and 2 x 2 cm;
·
Bruising of right anterior lower leg of 3 x 2 cm;
·
Bruising of left lower leg medial-anterior of approximately 2 x 3 cm;
·
Upper lip swollen with bruising of approximately 2 x 2 cm; and
·
Parietal abrasion of approximately 1 cm in diameter.’
[19]
Aspelling’s version, in summary, was that he only punched M
once on the cheek in reaction to M having pulled back his
right hand
as if to hit him. In the ensuing scuffle he ‘punched downwards
once’ in an effort to free himself from M.
Bennett denied
having assaulted M at all. They were seemingly unable to proffer any
explanation for the resulting injuries. Counsel
for the respondents
(who did not appear in the trial) when pressed on this point in
argument, submitted that M’s injuries
could have been caused by
‘tables and chairs’ in the scuffle that ensued. Once the
numerous improbabilities in regard
to the proposition were raised,
counsel, wisely I should add, did not persist in the argument any
further.
[20]
In the absence of any explanation by the respondents as to the
injuries sustained by M, their version crumbles into oblivion
as
improbable and it accordingly is rejected as false.
[21]
The evidence of Kinnear and Kritzinger, likewise, was seemingly
unsatisfactory. Their evidence is replete with clear indications
of a
fabricated contrived version in a concerted attempt to exculpate the
respondents. Examples thereof are not hard to find. They
made written
statements to the respondent’s attorney, Mr Ben Botes, who was
called to testify for the defendants and who
confirmed that only
information obtained from them was noted down in their statements.
Both Kinnear and Kritzinger belied his version
on this score: they
disavowed having provided Botes with numerous facts and allegations
which significantly, cannot be reconciled
with their version in
court. One example will suffice: in their written statements
Aspelling, Bennett and Kinnear pertinently alleged
that M and D were
seated when the staring incident occurred. The staring incident, it
must be remembered, was of fundamental importance
to their version
and the case of the respondents. The difficulty arising, and this was
not only firmly established but also readily
conceded by them, is
that Kinnear and Kritzinger would not have been able to see M and D
had they been sated, staring at them.
This must have become apparent
to them because in their evidence they all changed their version in
testifying that M and D were
standing when the staring took place.
[22]
Contrary hereto, both M and D, in considerable detail, described the
assault on them by both Bennett and Aspelling. Their version,
although not entirely free from criticism, was corroborated in all
material respects not only by the evidence of Benikwa, Bacchus
and
Pozzan, but also the nature and seriousness of the injuries they had
sustained, as reflected in the medical reports and depicted
on the
photographs taken of them after the incident.
[23]
I do not think that a finding as to who had started the incident is
either necessary or decisive of the matter. The facts as
a whole
clearly show that the respondents instantly became aggressive towards
M and D, resulting in a vicious and continuous assault
that was
perpetrated upon them. On Aspelling’s own version, assuming
that M indeed intended hitting him, the bounds of self-defence
were
clearly exceeded.
[24]
In conclusion, the appellant has succeeded in proving the assault on
him by both the respondents. The dismissal of his claim
by the court
a quo accordingly falls to be set aside.
Quantum
[25]
Finally, I turn to an assessment of the quantum of damages to be
awarded to the appellant. The appellant is a practising attorney
of
long standing in Vereeniging. This incident however bears no
relevance to his professional capacity and will therefore not be
taken into account in the assessment of damages. Counsel for the
appellant submitted that an award of R300 000 as general
damages, would be appropriate. The court a quo awarded D general
damages in the sum of R100 000. Although the award is not
on
appeal before us, I am inclined to think that it is on the low side
and I, sitting as a court of first instance, would have
awarded a
higher amount, particularly in view of the seriousness of the
injuries sustained and their
sequelae.
M’s injuries, on
the other hand, were of a less serious nature.
[26]
Having considered all relevant circumstances, I am of the view that
the award made by the court a quo in regard to D would
be appropriate
in regard to M.
Costs
[27]
It remains to deal with the costs of the action. Counsel for the
respondents unconvincingly proposed that costs on the Magistrate’s
Court scale would be appropriate. I do not agree. The plaintiffs were
entitled to, as they did, to pursue their actions in the
High Court
and no good reason exists for depriving the appellant from the higher
scale of costs (See
Carlin Medical Extrusions (Pty) Ltd v
Light-Be-Lighting (Pty) Ltd and Others
(16312/2013) [2013]
ZAGPJHC 299 (2 December 2013).
[28]
In the result the following order is made:
1. The appeal is upheld.
2. The order of the court
a quo dismissing the appellant’s claim with costs, is set aside
and replaced with:
‘
Judgment is
granted in favour of the first plaintiff against the first and second
defendants, jointly and severally, the one paying
the other to be
absolved, for:
1. Payment of the sum of
R100 000.00.
2. Interest on the amount
in paragraph 1 above at the rate of 15.5 % per annum, from 22 August
2012 to date of final payment.
3. Costs of suit on the
High Court scale.’
3. The respondents are to
pay the costs of the appeal.
__________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
I
agree.
___________________________
EJ
FRANCIS
JUDGE
OF THE HIGH COURT
I
agree.
_________________________________
MJ
TEFFO
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPELLANT ADV
CJ NEL
ATTORNEYS
FOR APPELLANT M
NKAISENG INC
COUNSEL
FOR RESPONDENTS ADV
JR PETER SC
ATTORNEYS
FOR RESPONDENTS MARTIN
SPEIER ATTORNEYS
DATE
OF HEARING 15
SEPTEMBER 2017
DATE
OF JUDGMENT 12
OCTOBER 2017
[1]
Jean
Lorrain
in
his book
Monsieur
De Phocas
.
[2]
His surname mistakenly referred to in the record of the proceedings
as ‘Bekkers’.
[3]
Paras [72] to [75] of the judgment.
[4]
Para [69] of the judgment
[5]
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et CSIE and Others
2003
(1) SA 11
(SCA) 558C-H.
[6]
See
Schmidt
& Rademeyer
Law of Evidence 3-4:
Credibility
and probability factors distinguished.
[7]
Santam
v Biddulph
2004 (5) SA 386 (SCA)
[8]
Para [10] of the judgment
[9]
M pleaded the alleged assault as follows: ‘Both defendants
assaulted the plaintiff by punching him with clenched fists
and
kicking him with shoed feet in/on his face, head and body.’
[10]
Who was the first defendant.
[11]
The second defendant.
[12]
Para [62] of the judgment.
[13]
Emphasis added by italicising the words emphasised.
[14]
Mabaso
v Felix
1981 (3) SA 865 (A).
[15]
1984 (4) SA 437
(A) 440D-441A.
[16]
2004 (5) SA 386
(SCA) para [5].