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[2020] ZAGPJHC 38
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Fourie v Du Toit (23000/2017) [2020] ZAGPJHC 38 (10 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE NO: 23000/2017
10/2/2020
In
the matter between:
FREDERICK PETRUS
FOURIE
Plaintiff
and
WAYNE STEFAN DU
TOIT
Defendant
JUDGMENT
YACOOB
J:
1.
On
16 August 2014 Mr du Toit playing in the finals of a rugby league at
Marks Park Sports Club.
[1]
His
wife attended the evening with him. Mr Fourie was also at the event.
Mr Fourie and Mr du Toit got into an altercation after
the match and
Mr du Toit fell backwards, injuring himself in the process.
2.
Mr
Fourie laid assault charges against Mr du Toit, and the charges were
prosecuted in the Johannesburg Magistrate’s Court,
but Mr du
Toit was discharged in terms of section 174 of the Criminal Procedure
Act, 51 of 1977.
3.
Mr
Fourie, the plaintiff, now seeks damages from Mr du Toit, the
defendant, for the harm he has suffered. Mr du Toit, in turn, has
instituted a counterclaim for malicious prosecution relating to the
charges laid by Mr Fourie.
4.
It
is common cause that there was an altercation between the two men. It
is also not disputed that Mr Fourie suffered certain injuries.
What
is at issue are the details of the encounter between the two men, and
the cause of Mr Fourie’s injuries.
5.
The
parties agreed and requested that the merits of the claims should be
separated from the quantum, and I made an order accordingly.
Quantum
has been postponed
sine
die
.
The plaintiff’s
case
6.
The
plaintiff’s first witness was Mr Ashley Slater. He was an
eyewitness. He was playing in the semifinal of the rugby tournament,
which started at 9pm. Mr Slater had arrived at Marks Park at about
7pm.
7.
The
Mr Fourie was already there, in the bar area, buying a drink at the
bar. At that time he greeted the Mr Fourie, and although
he was not
drunk he had obviously had “a couple of drinks”. Mr
Slater did not know Mr du Toit and could not say whether
he was there
or not.
8.
After
he met Mr Fourie in the bar, Mr Slater changed into his kit and went
to warm up and play the match, which his team won. He
was walking
back towards the Bar area with two friends, Messrs Labuschagne and
Poulter. This was at about 11pm, as the match lasted
40 minutes per
half, and had a half time of about 15 minutes. The match had been
played on the B field. Mr Slater and his friends
were standing at the
side of the A field, 20 to 30 metres from the bar, and Mr Slater was
facing the bar area. The whole area was
brightly lit for the night
games.
9.
Mr
Slater saw Mr Fourie talking to a woman, whose back was against the
wall. He then saw another man (it is common cause this was
Mr du Toit
and the woman was Mrs du Toit)) near Mr Fourie, who then punched Mr
Fourie. Mr Fourie fell down.
10.
Mr
Slater was shown some photographs of the area, and identified where
the incident took place, as well as where he and his friends
were
standing. Mrs du Toit was standing leaning on the wall between the
bar window and a sign, and Mr Fourie was across from her,
facing her.
Mr Fourie had his left arm on the wall which the woman was leaning
against.
11.
Mr
Slater testified that he did not see much of the interaction, and
could not see Mr Fourie’s face because his back was towards
Mr
Slater. He testified that it did not look from what he could see as
an aggressive encounter. Mr Fourie did not hold or grab
Mrs du Toit
at all. He saw Mr du Toit hand something, a wallet or phone, and his
drink to his wife and then punched Mr Fourie in
the face.
12.
Mr
du Toit punched Mr Fourie once, with his right hand, in the face. Mr
Fourie fell backwards and Mr Slater ran across and grabbed
Mr du Toit
by the hoodie he was wearing and asked him what he was doing. Some of
the other rugby players separated them.
13.
Mr
Slater then turned his attention to Mr Fourie, and found Mr
Labuschagne (the plaintiff’s other witness) already with him.
He noticed that Mr Fourie had some bruising on his cheek and that he
was bleeding a lot, and was already lying in a puddle of blood.
While
Mr Labuschagne tried to telephone an ambulance, Mr Slater went to the
changing rooms to call one of the rugby players who
was a firefighter
and knew some first aid. Mr Nel, the firefighter, got to Mr Fourie
after about four minutes, and turned him from
his back into the
recovery position. The paramedics arrived 15 or 20 minutes after
that.
14.
When
Mr Slater returned to Mr Slater he did not see Mr du Toit and also
did not look for him. He did not see him when the paramedics
arrived.
Mr Slater was certain that Mr du Toit did not “separate”
Mr Fourie from Mrs du Toit as pleaded by Mr du Toit,
and that Fourie
did not simply fall because he stumbled or tripped or was
intoxicated. He was adamant that Mr Fourie fell as a
result of Mr du
Toit’s blow.
15.
The
incident happened very quickly, within the space of about five
seconds, there was not really time in between for him to look
away.
However Mr Slater did not actually see exactly how Mr Fourie fell
because he ran towards Mr du Toit after he punched Mr Fourie.
He did
see him falling, but his attention was on Mr du Toit.
16.
Mr
Slater was also certain that the area depicted in photographs of the
area submitted in evidence was as it was on the night. In
particular,
there was concrete at the place where Mr Fourie’s head had
landed. There was also no big 20 or 30cm step down
from the bar area,
where Mr Fourie may have stumbled. He had played at Marks Park
regularly although it was not his club.
17.
Also,
Mr Slater had not had anything to do with the taking of the
photographs, and placement of certain markers. He did not know
why
one item was in the picture if it was a marker.
18.
Mr
Labuschagne was the plaintiff’s second witness, he was a team
mate of Mr Slater’s, he was “on the bench”
and did
not actually play. He arrived at sometime between 18h30 and 19h00 to
attend the match. He had been at school with Mr du
Toit. They are
friends but do not see each other regularly.
19.
Mr
Labuschagne first saw Mr Fourie around 19h00 or 19h30 in the vicinity
of the bar. Mr Labuschagne was with his wife and teammates.
He
interacted with Mr Fourie for between 5 and 10 minutes. Mr Fourie was
not at that stage heavily intoxicated. Mr Fourie was “enjoying
himself”.
[2]
20.
After
the match Mr Labuschagne and his teammates went back towards the
change rooms and stopped on the side of the field near the
bar,
having a conversation. They noticed an altercation at the bar area.
Mr Labuschagne looked up, he saw Mr Fourie falling, and
ran up to
help his friend. There was blood all over Mr Fourie’s face.
21.
Mr
Labuschagne did not see Mr du Toit hit Mr Fourie as his side was
toward the bar. As far as Mr Labuschagne knows nobody at the
scene
suggested that Mr Fourie tripped and fell.
22.
Mr
Labuschagne had noticed Mr Fourie at the bar area before the
altercation, while he was walking back after his match, and before
his group had stopped to converse. He did not notice Mr Fourie making
physical contact with Mrs du Toit, nor did he notice that
Mr Fourie
appeared to be heavily intoxicated. He saw Mr Fourie apparently
enjoying the evening with a drink in his hand.
23.
Mr
Labuschagne did not see what happened between Mr Slater and Mr du
Toit. He was concerned with Mr Fourie, there was blood on the
back of
his head and a cut on his bottom lip.
24.
Mr
Labuschagne identified the area in the plaintiff’s photographs
as where the incident happened. He said Mr Fourie took the
photographs and Mr Labuschagne was not with him. However in cross
examination he conceded that Mr Fourie asked him to go with him
and
he did. Mr Labuschagne confirmed Mr Slater’s description of the
area, including that it was brightly lit on the night,
that there was
concrete in the area where Mr Fourie landed, and that there was no
large step.
25.
Mr
Labuschagne acknowledged that he and Mr Slater were friends and had
occasionally discussed the incident the day after it happened
but not
more than that.
26.
He
thought that Mr Fourie wanted him to go and show him where the
incident took place for purposes of the photographs because he
had
been in a lot of pain and bleeding and probably did not recall
exactly what had happened. Mr Labuschagne had placed the flip
flops
in the picture which indicated where Mr Fourie had fallen and so on.
27.
He
was certain that Mr Fourie’s back was towards the field, but he
could not say more about his position. He heard a commotion
at the
bar area, that is what attracted his attention. Mr Slater then
shouted Frikkie and started running, and Mr Labuschagne did
too. He
saw Mr Fourie falling straight backwards. It all happened very
quickly.
28.
Mr
Labuschagne is certain that he saw the plaintiff fall straight
backwards. He did not turn or try and save himself. Mr Labuschagne
did not see anything that was consistent with Mr du Toit’s
version. He contends that he would have done so even though he
was
not facing the bar, they were still within his line of vision.
29.
Mr
Fourie was the plaintiff’s last witness. He is as a plumber and
works as a site foreman in a construction company owned
by his
brother. He had never before met Mr or Mrs du Toit. As a result of
his injuries he was in a coma for a week and in hospital
for some
time after. He suffered a brain injury, lost a tooth and gets mild
headaches. He also suffered a split lip. He also is
now afraid to
speak to strangers.
30.
He
remembers going to Marks Park with his friend Mark and Mark’s
wife, and arrived around 6.30 before the sun went down. He
was
drinking but he doesn’t remember if he was intoxicated. He was
talking to Mark and Charl, his friends. He remembers going
to the bar
and going to the toilet, but the rest of his memory is what people
tell him happened. He remembers neither his interaction
with Mrs du
Toit nor the altercation.
31.
Mr
Fourie laid the criminal charge because the club manager of the
Police rugby team told his brother Mr du Toit had assaulted Mr
Fourie, and Mr Fourie’s brother told him. Mr Slater and Mr
Labuschagne had also told him Mr du Toit had assaulted him. He
believed what he was told.
32.
Under
cross examination Mr Fourie said that he only went to the bar and
started drinking after the 7pm game had started. The contention
that
he was “happy” meant only that he was a happy person. He
agreed that he had more than five drinks but did not
know if he’d
had more than ten. He was having double brandies and coke.
33.
Mr
Fourie agreed that anything could have happened but he didn’t
remember it, and that he believed what he had been told,
that Mr du
Toit hit him in the face.
The
defendant’s case
34.
Mr
du Toit was the defendant’s first witness. He was playing in
the Joburg Police second team and also as a reserve for the
first
team. He played until around ten and then sat on the bench. After the
team celebrated a win, he went and changed, found his
wife, and then
went to get a drink. This was just after 10.30pm.
35.
He
came outside after getting a drink from the bar, he had been inside
for two or three minutes. He saw someone gripping his wife.
He put
his drinks down and came in between them. His wife’s back was
towards him at an angle. He heard his wife saying “no”.
After he came between his wife and the other person (who was Mr
Fourie), he turned around and saw that Mr Fourie had fallen.
36.
Mr
du Toit bent over Mr Fourie who mumbled something. He could smell
alcohol on him. He told his wife that Mr Fourie was just drunk.
He
denies that he hit Mr Fourie.
37.
Mr
du Toit then got up and a number of people gathered, and Mrs du Toit
felt uncomfortable so they left. Mr du Toit’s evidence
was that
nobody grabbed him or challenged him. Mr Fourie’s friends were
merely standing around and talking with Mr Fourie.
38.
His
evidence was that the criminal case cost him a job opportunity in
Australia and caused a lot of stress and expense. In his view
there
was never sufficient evidence against him, and he testified that a
police officer had told him he doesn’t know why
“they are
pushing this further”.
39.
According
to Mr du Toit there was no concrete slab at the place where the
incident took place, and that there was quite a high step,
between 20
and 30cm. He did not see Mr Fourie fall, he heard him hit the ground.
He does not know how Mr Fourie got a split lip
and a broken tooth.
40.
Mr
du Toit did not know Mr Fourie before, and also did not know Mr
Slater and Mr Labuschagne.
41.
In
cross examination Mr du Toit testified that he “did a loop”
and came between them. There was no force, he simply
moved between
them. He thinks that Mr Fourie fell immediately, or a split second
later. He does not think the contact between him
and Mr Fourie made
Mr Fourie fall. He thought that Mr Fourie may have lost his balance
as he let go of Mrs du Toit.
42.
In
cross examination however Mr du Toit conceded he had physical contact
with Mr Fourie in breaking the contact of Mr Fourie’s
arm with
MRs du Toit.
43.
It
was Mr du Toit’s impression that Mr Fourie was so
intoxicated that he could not stand properly or keep his balance.
It
was also his impression that he was intimidating Mrs du Toit. Mr
Fourie has said something to her Mr du Toit could not hear.
44.
Mr
du Toit stated that he had seen Mr Fourie while he was in the bar –
urinating at the side of the bar and he told the bartender
about it.
This was never put to Mr Fourie in cross examination. He also says he
did not see any blood gushing from Mr Fourie’s
nose and mouth,
but this too was never put to the plaintiff’s witnesses.
45.
Mr
du Toit said that to the extent his evident differed from his
pleadings, he was simply trying to explain himself. Where the
pleadings refer to him having acted as he did to “protect the
physical and emotional integrity” of Mrs du Toit, he did
not
draw the pleadings so he could not answer to that. He did believe she
was in danger and needed to intervene.
46.
When
it was put to Mr du Toit that there was no evidence that the
prosecution was malicious, Mr du Toit stated that there was evidence
but his attorneys had advised him it was not for this part of the
case. In his view the prosecution was malicious because the
investigating officer had told him Mr Fourie and his brother were
hounding the investigating officer.
47.
Mrs
du Toit testified next. She testified that she was standing outside
the clubhouse on the stoep waiting for her husband while
he got a
drink. She was leaning against the wall with her shoulder, and heard
someone speaking to her. It was Mr Fourie. He said
he’d been
watching her the whole day. He was coming from behind the clubhouse.
48.
She
then asked him not to speak to her because he was really drunk and
slurring and could not make eye contact. She asked him not
to speak
to her, and he came into her personal space. He then grabbed her arm
and started pulling her towards him. She tried to
resist, and her
husband came out at that point.
49.
Between
the time Mr Fourie approached her and her husband came back, it was a
minute or two, probably less than two minutes.
50.
Mr
Fourie had been swaying around trying to say something when he
approached her. After he grabbed her hand she had to move forward
so
that she did not fall forward. She felt uncomfortable that he had
been watching her all day.
51.
Mrs
du Toit was not aware of anything in Mr du Toit’s hands, she
was not focused on her husband but on trying to get away
from Mr
Fourie. Mr du Toit came in between her and Mr Fourie, and she saw Mr
Fourie turn and walk away from them. In fact he turned
away as Mr du
Toit came between them. Her husband then turned and saw Mr Fourie on
the ground. He bent over him, She asked Mr du
Toit if Mr Fourie was
okay, he said yes, and they left.
52.
Mrs
du Toit does not remember that there was any concrete on the ground.
There was just the ground. There was a ledge that she would
sit on
when waiting for her husband, about 20 or 30 cm high.
53.
In
her opinion Mr Fourie was under the influence of alcohol, he was
slurring, did not look her straight in the eye, and was drooling.
She
did not like what he said and felt intimidated.
54.
When
the inconsistency between her evidence that Mr Fourie turned and
walked away, and Mr du Toit’s evidence that he heard
Mr Fourie
fall immediately he came between Mr Fourie and Mrs du Toit, she said
that she did not focus on Mr Fourie as she was disturbed.
However she
had earlier been certain that Mr Fourie walked away. Later she said
that when she followed her husband to where Mr
Fourie had fallen it
was behind her. She did not notice any injuries. There were people
around him who were just standing there.
55.
Mrs
du Toit stated that there was no conversation between her and Mr
Fourie, and he did not stand with his hand against the wall.
She also
stated that although it was not dark on the stoep it was also not
brightly lit. She was sure her husband did not punch
Mr Fourie. When
her husband turned around to see what had happened, Mr Fourie was not
injured.
Analysis
56.
The
questions then to be determined are whether:
56.1.
Mr
du Toit hit Mr Fourie;
56.2.
Mr
Fourie’s injuries resulted from the encounter, and
56.3.
Mr
Fourie laid charges against Mr du Toit without a reasonable basis and
out of malice.
57.
The
two versions that have been presented before me in the main claim are
mutually destructive.
58.
The
first is that Mr du Toit punched Mr Fourie (for whatever reason), Mr
Fourie fell backwards, and was injured both by the punch
and by the
fall. The fall resulted in him hitting his head on a concrete slab on
the ground, which caused a head injury.
59.
The
second is that Mr Fourie was extremely drunk, lost his balance and
fell when Mr du Toit gently inserted himself between Mr Fourie
and
Mrs du Toit, and was not visibly injured at the time Mr and Mrs du
Toit last saw him. There was no concrete slab on the ground
at that
time.
60.
It
is notable that, rather than pleading a justification such as
personal defence or necessity, Mr du Toit’s version is simply
that he did not do anything to Mr Fourie that may have resulted in
the injuries, and in fact, that there were no visible injuries
when
he left him.
61.
The
approach to be followed by a court in deciding on mutually
destructive versions is well- established. It is summarized by the
Supreme Court of Appeal:
[3]
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. As to (a), the court's finding on the
credibility of a particular witness will
depend on its impression
about the veracity of the witness. That in turn will depend on a
variety of subsidiary factors, not necessarily
in order of
importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As
to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the
disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the
party burdened with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs
when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The
more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.
62.
It
is not disputed that Mr Fourie was injured and spent some weeks in
hospital. The injuries he describes are also not disputed.
As a
matter of logic, they are consistent with someone being punched in
the mouth (the split lip and broken tooth) and falling
to hit their
head on a hard surface (the head injury and unconsciousness).
63.
It
is also not disputed that Mr Fourie was talking to Mrs du Toit, and
that she did not welcome his company. I accept for purposes
of this
analysis that she found him unpleasant and intimidating. I accept
also that Mr du Toit was concerned and wished to protect
her from the
unwelcome advances Mr Fourie was making.
64.
Taking
as equal the demeanour of the witnesses, there are a number of
fundamental improbabilities in Mr du Toit’s version
which weigh
against his case.
65.
The
first is that, Mr du Toit being concerned to protect his wife from
the unwelcome attention of Mr Fourie, he inserted himself
between
them extremely gently in a way that would not have impacted Mr Fourie
had he not been so drunk that he could not keep his
balance. In
my view the likelihood is that Mr du Toit was not concerned with
being gentle, and is more likely to have been
rough towards Mr
Fourie.
66.
The
second is that Mr Fourie fell so hard as a result of this apparently
gentle movement by Mr du Toit, that Mr du Toit heard the
fall rather
than seeing it (his version being that his back was towards Mr
Fourie), despite there being allegedly no concrete or
hard surface on
which he could have hit his head.
67.
The
third is that, although Mr Fourie was apparently so drunk that he
could barely walk, he was inside the bar urinating, and then
had time
to come outside and accost Mrs du Toit before Mr du Toit came
outside, despite Mr du Toit being away from her for less
than two
minutes.
68.
There
is nothing fundamentally improbable, in my view, in the versions of
the plaintiff’s witnesses. Taking into account the
injuries for
which Mr Fourie was hospitalized, and that there is no contention
that either of the eyewitnesses had anything to
gain from false
testimony, the likelihood is that the events after Mr du Toit came
out of the bar occurred in the manner described
by Mr Slater and Mr
Labuschagne.
69.
Mr
Kriel suggested that, if the injuries were in fact suffered as
contended, and Mr Fourie did not move after the incident, until
the
ambulance picked him up, and there was no other incident, the
plaintiff ought to have brought more witnesses to testify to
that. As
it is the plaintiff brought two witnesses to testify to the events,
which are essentially undisputed. One wonders how
many witnesses
would have satisfied Mr Kriel.
70.
In
any event the defendant also did not bring further witnesses to
support his version, despite the number of people that were there
on
the night. So there is nothing in that submission.
71.
On
the probabilities, therefore, I find for the plaintiff.
72.
As
far as the counterclaim is concerned, it was contended for Mr du Toit
that Mr Fourie had no real basis for laying the charges,
and that his
persistence was proof of malice.
73.
In
my view there is no proof of malice on Mr Fourie’s part. He
suffered a devastating injury and reasonably believed that
Mr du Toit
had inflicted it on him. The counterclaim must fail.
74.
In
the circumstances I make the following order on the merits of the
claim and counterclaim:
(1)
The
plaintiff’s claim is successful on the merits.
(2)
The
issue of the quantum of the plaintiff’s claim is postponed
sine
die
.
(3)
The
defendant is to pay the costs of the plaintiff’s claim.
(4)
The
counterclaim is dismissed with costs.
S. YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances
Counsel
for the Plaintiff
: W.C Carstens
Instructed
by
: Jonathan Van Druten Attorneys
Counsel
for the Defendant :
C Kriel
Instructed
by
: Spruyt Lamprecht & Du Preez Attorneys
Date
of hearing
: 14 and 18 June 2019
Date
of judgment
: 10 February 2020
[1]
It was common cause that, although the pleadings
referred to Pirates Rugby Club, the incident took place at Marks
Park Sports
Club.
[2]
It is not certain whether Mr Kriel meant by the
question whether Mr Fourie was “enjoying himself” that
he was somewhat
intoxicated.
[3]
Stellenbosch Farmers’ Winery Group Ltd
and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at [5].