About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2023
>>
[2023] ZAECMHC 14
|
|
Tyeks Security Services CC v Semekazi (3720/2018) [2023] ZAECMHC 14 (22 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No: 3720/2018
In
the matter between:
TYEKS SECURITY
SERVICES CC
APPELLANT
and
ZOLANI
SEMEKAZI
RESPONDENT
JUDGMENT
Tokota
ADJP:
Introduction
[1]
The respondent/plaintiff instituted an action against the
appellant/defendant in the
court
a quo
claiming damages
arising out of the alleged assault by one security guard, an employee
of the appellant, in the amount of R4 520 000.
At the
commencement of the proceedings the court
a quo
granted
separation of merits from quantum in terms of Uniform rule 33(4). It
therefore dealt with the merits only and postponed
determination of
quantum
sine die
. For the sake of convenience the parties in
this judgment will be referred to as plaintiff and defendant instead
of respondent
and appellant. The court held that the defendant was
liable for the proven or agreed damages. This appeal, which is
directed at
that order, is with leave of the Supreme Court of
Appeal.
The
plaintiff’s version
[2]
On the night of 23 September 2017 the plaintiff together with his
brother (Sive) and
two Maqokolo sisters who were also with their
relative decided to attend a party at Ngangelizwe Township, Mthatha.
It was about
19h00 when they arrived at the party. According to the
evidence, the two ladies remained in the car and did not enter the
venue
where the party was being held. Although this did not come out
clearly from the evidence it appears that one of the Maqokolo sisters
was married to the plaintiff’s brother.
[3]
It was at about 22h00 when Sive, the plaintiff’s brother,
apparently got injured
at the party. He suffered a fracture on his
leg. No one knew how he got a fracture. The plaintiff carried him to
the car and they
all proceeded to a nearby clinic. On their arrival
at the clinic they found two security guards at the gate who were on
duty. These
security guards were employed by the defendant.
[4]
One of the security guards brought a wheelchair and Sive was driven
by means of that
wheelchair inside the clinic. Although this has been
denied by the defendant’s witness I find that a wheelchair was
used.
One of the ladies (Siphokazi) talked to the security guard who
indicated that this was a hospital case and she informed him that
they wanted a referral letter. The plaintiff pushed the wheelchair
and placed Sive onto a bed. The nurses were also busy attending
to
Sive. The plaintiff was requested to leave the consulting room. He
refused saying his brother was scared of injections and therefore
he
wanted to be there to assist the nurses.
[5]
The nurses were not impressed and called the security guard to remove
the plaintiff.
The evidence relating to how the plaintiff sustained a
wound on his head is at the centre of this judgment. For the reasons
that
follow, I find that the plaintiff was forcibly removed by the
security guard and he was resisting resulting in him being pushed
as
result he fell on the floor.
[6]
Sive was eventually transported to hospital. It is not clear what
happened thereafter.
Also for the reasons that follow I find that
Sive was admitted in hospital. On 12 October 2017 the plaintiff
consulted Dr Ncapayi
and a J88 form was completed in terms
section
212(4)
of the
Criminal Procedure Act 51 of 1977
. It is not clear from
the form whether this was completed in hospital but a stamp of Dr P I
Ncapayi is affixed to it. Dr Ncapayi
recorded on the form the
following: ‘[p]atient was pushed fell on posterior head,
sustained laceration on scalp (now healed)’.
Under
cross-examination, there is also a reference to a visit in hospital
on 19 October 2017 but no medical report forming part
of the papers
before us was available.
[7]
The plaintiff testified and explained how he sustained a laceration
on his head. He
testified that he was assaulted by a security guard
having been pushed or pulled and kicked resulting in him falling. He
fell on
the ground and he woke up in hospital where he regained
consciousness. He sustained an open wound which was stitched and
bandaged
after which he was discharged from hospital.
The
defendant’s version
[8]
The defendant called one witness, Mr Zembe, a security guard, who was
on duty during
the night in question. He testified that on 23
September 2017 he was one of the security guards who were doing night
duty. Sive
was brought by the plaintiff and two ladies to the clinic.
They offered a wheelchair but it was rejected. He testified that Sive
was taken inside the clinic to the consulting room. Whilst the nurses
were attending to him the two ladies were seated. The plaintiff
was
rowdy and shouting at people.
[9]
Mr Zembe testified that he was called by the nurses to come and
remove the plaintiff
from the consulting room. When the plaintiff was
requested to leave he reversed towards the door unwillingly. When he
arrived at
the doorway he stopped and wanted to attack Mr Zembe by
attempting to slap him. The plaintiff slipped and fell on his back.
He
was shouting at all times. In his view, the plaintiff was drunk
and Mr Zembe could smell liquor on him. After the plaintiff fell
Mr
Zembe ‘let go of him’ and called for backup. The
plaintiff got up and said he was going to lay charges.
[10]
Under cross-examination Mr Zembe denied having grabbed the plaintiff
by his collar. He denied
that he pulled him and tripped him as a
result of which the plaintiff fell. He denied ever pushing the
plaintiff notwithstanding
the defendant admitting the same in the
amended plea. He said there were four people instead of five. He
denied the use of a wheelchair
saying they rejected it. He said the
fracture was usually fixed at the clinic. He disputed the fact that
the plaintiff was not
driving the vehicle when they came. Mr
Mhlawuli
who appeared for the defendant however did not dispute this
under cross-examination. But he insisted that the driver was a
male
person. The other security guard who was on duty that night has since
left the employment with the defendant. The conduct
of the plaintiff
was uncontrollable as he was shouting telling nurses to use a brufen
medication.
The
findings of the court
a quo
[11]
The court
a quo
found that the plaintiff was assaulted by the
security guard and held that the defendant was liable for damages
suffered by the
plaintiff. In the court’s view an attempt to
grab a person is enough to inspire a belief that force is to be
applied. It
found that the evidence of the plaintiff was corroborated
by that of Ms Maqokolo and found support in the pleadings. He
rejected
the evidence of the security guard ‘out of hand’
as being ‘opportunistic’.
Parties’
argument
[12]
Mr
Notshe SC
, who appeared for the defendant, put emphasis on
the behaviour of the plaintiff at the clinic and argued vehemently
that he was
drunk. He submitted that the plaintiff had an evidential
burden to prove that he was not drunk. I do not agree. There is an
accepted
principle of ‘
semper necessitas
probandi
incumbit
ei qui agit
’, meaning:
that
the necessity of proof always lies with the person
who lays charges. He submitted that the court
a
quo
erred in holding that the defendant
was liable for damages.
[13]
Mr
Notshe
contended that there were independent witnesses such
as nurses to corroborate the plaintiff’s version if he was
telling the
truth. His witness, Ms Maqokolo, cannot be free from bias
as she is his sister in law. For example the plaintiff testified that
one of the nurses intervened on his behalf by asking the security
guard and said ‘security what are you doing’ at the
stage
when he was falling on the ground. There is no evidence that this
witness was not available.
[14]
Mr
Cole SC,
who appeared for the plaintiff, contended that the
plaintiff’s version was not put to the defendant’s
witness and therefore
that version remained in extant.
[15]
Mr
Cole
faintly argued that the Supreme Court of Appeal erred
in granting leave to appeal in that it concentrated on the grounds of
appeal.
This argument cannot be correct. When the Supreme Court of
Appeal considers a petition, affidavits and the record are placed
before
it. At the end of the day no reasons are given for the
decision. Mr
Cole’s
suggestion is based on speculation.
Discussion
[16]
It is true that the intention of the perpetrator of an assault can be
inferred from the act by
which a physical assault is carried out.
Where, for example, an assault is preceded by a threat, there can be
no reason why the
intention cannot be inferred from the contents of
the threat, unless, obviously, it appears that the perpetrator does
not have
the intention or the ability to carry out the threat. In the
instant case there was no evidence from which an inference could be
drawn that when the security guard pushed the plaintiff, he was not
removing him from the room but was intending to assault him.
[17]
In this matter the court is faced with two mutually destructive
versions of the parties. In order
to assess which version is more
probable, it is perhaps expedient to evaluate the evidence adduced in
support of each party’s
case. Where the court is faced with two
mutually destructive versions the proper approach was restated in
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and Others
,
[1]
where Nienaber JA said:
'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.'
[2]
[18]
In
National
Employers' General Insurance Co Ltd v Jagers
,
[3]
Eksteen AJP stated thus—
' . . . where there are
two mutually destructive stories, [the plaintiff] can only succeed if
he satisfies the Court on a preponderance
of probabilities that his
version is true and accurate and therefore acceptable, and that the
other version advanced by the defendant
is therefore false or
mistaken and falls to be rejected. In deciding whether that evidence
is true or not the Court will weigh
up and test the plaintiff's
allegations against the general probabilities. The estimate of the
credibility of a witness will therefore
be inextricably bound up with
a consideration of the probabilities of the case and, if the balance
of probabilities favours the
plaintiff, then the Court will accept
his version as being probably true. If however the probabilities are
evenly balanced in the
sense that they do not favour the plaintiff's
case any more than they do the defendant's, the plaintiff can only
succeed if the
Court nevertheless believes him and is satisfied that
his evidence is true and that the defendant's version is false.'
[19]
It is true that a party is obliged to put to the witnesses of his
opponent so much version as
will be adduced by him. The rationale of
this rule is that the other party should be forewarned of what the
version of the other
party will be so as to afford him an opportunity
to deal with it.
[4]
This
rule, however, is not inflexible
and
is not intended to be a mechanical and senseless exercise.
It
has been said:
‘
The
rule is of course not an inflexible one. Where it is quite clear that
prior notice has been given to the witness that his or
her honesty is
being impeached or such intention is otherwise manifest, it is not
necessary to cross-examine on the point, or where
'a story told by a
witness may have been of so incredible and romancing a nature that
the most effective cross examination
would be to ask him to
leave the box’.
[5]
It may be enough if the
plaintiff was aware of what the case of the defendant would be.
[20]
In my view the court
a quo
committed an error in the
evaluation of evidence. It also made no credibility findings.
Although the plaintiff testified that he
was admitted in hospital
being unconscious and was treated there, no medical records produced
to support the veracity of this evidence
were available. Ms Maqokolo
could not confirm the admission in hospital. In fact, she testified
that on the following day or so
she phoned her sister who informed
her that the plaintiff was sleeping at his brother’s place. The
question was asked: ‘Do
you know whether or not the plaintiff
was admitted to hospital? Answer: ‘No I don’t know’.
She did not corroborate
the evidence of unconsciousness.
[21]
Days later the plaintiff’s witness was told that the plaintiff
was not feeling well and
had visited a private doctor. The plaintiff
testified that he sustained a laceration on his head on 23 September
2017. If he went
to hospital being unconscious and having sustained
an open laceration one would have expected medical evidence from
hospital to
support that evidence, more particularly that on his
version he testified that he ‘bled a lot’ and ‘was
weak
from excessive bleeding’. Instead, he only went to see a
doctor on 12 October 2017 with ‘healed’ laceration
on the scalp. Unfortunately, the doctor did not estimate the age of
the healed laceration and this was not canvassed at the hearing.
Even
then the reason for going to the doctor was because he was
‘shivering’, suspecting a reaction to antiretroviral
medication (ARV’s). The court
a quo
made no finding in
this regard.
[22]
The plaintiff testified that he could not say how long he remained in
hospital because he was
unconscious and he gave the impression that
he remained there for some time. He was asked if he was given any
treatment after he
woke up in hospital. He never answered this
question. Instead he said he did not understand it. He was asked why
it took him three
weeks before going to hospital if he was injured on
23 September 2017. He never answered this question. All he said
was that
he went to hospital because he was ‘shivering’
and he thought it was because of the ARV’s that he was taking.
[23]
He avoided certain questions. For example, the question was asked:
Question:
‘If you were not aware whatsoever of what happened after you
had been
bandaged, how did you know you were in
hospital?’
Answer:
‘At the time I was at the clinic M’Lord having been
grabbed
by the back of my neck, my neck by the security then he shook
me down, after the security M’Lord had grabbed me with the back
of my neck, he pushed me down onto the ground.’
[24]
Again he was asked:
Question:
‘Were you then given treatment at hospital, for your head
injury?’
Answer:
‘I have said this, M’Lord before that, when I woke up in
hospital,
my head was already bandaged, and it was aching.’
The
questions relating to the delay in going to hospital after the
alleged assault were as follows:
Question:
‘Can you tell the court if you were injured on 23 September
2017 why did it
take you three, plus minus three weeks for you to
visit the hospital?’
Answer:
‘When I left hospital, M’Lord I recovered my
consciousness in
hospital and I had been taken to hospital in a motor
vehicle. My hospital records were kept by my elder brother. What
transpired
on 19 October 2017 that I don’t know.’
[25]
Again it was suggested to him that if he was injured on 23 September
2017 the report on 12 of
October 2017 would be referring to some
other incident. One would have expected him to deny this suggestion.
Instead his answer
was as follows:
‘
I’m only
M’Lord talking about the incident that occurred on 23
September. And this was happening to me that is what
I’m
telling the court.’
This
question was asked three times but was never answered.
[26]
Furthermore the following questions were not answered in that he did
not deny certain allegations
but gave half answers: Mr
Mhlawuli
for the defendant put the version of the defendant as follows:
Question:
‘He will come and testify (referring to the defendant’s
witness) that
when you arrived with Sive you were drunk, so much that
when the nurses asked you to leave the room, you refused even told
them,
which injection they must use to help Sive?’
Answer:
‘I have never myself worked at the clinic M’Lord I know
nothing
about injections.’
Question:
‘He will tell the court that you were so drunk that you refused
the nurses instruction
to leave that the nurses had to call security
to come and help them?’
Answer:
‘When I discovered it was in 1997 that I was HIV positive I
never
consumed liquor since then M’Lord.’
From
the above it is clear that he did not deny that he refused to leave
the room. He did not deny that the nurses had to call a
security
guard to assist them. I therefore find that his conduct at that
clinic was not user friendly hence it was thought he was
drunk
necessitating the need for calling the security guard to remove him
by force.
[27]
In
S v
Hadebe and Others
,
[6]
citing with approval from
Moshephi
and
Others v
R
[7]
it was held:
‘
The breaking down
of a body of evidence into its component parts is obviously a useful
aid to a proper understanding and evaluation
of it. But, in doing so,
one must guard against a tendency to focus too intently upon the
separate and individual part of what
is, after all, a mosaic of
proof. Doubts about one aspect of the evidence led in a trial may
arise when that aspect is viewed in
isolation. Those doubts may be
set at rest when it is evaluated again together with all the other
available evidence. That is not
to say that a broad and indulgent
approach is appropriate when evaluating evidence. Far from it. There
is no substitute for a detailed
and critical examination of each and
every component in a body of evidence. But, once that has been done,
it is necessary to step
back a pace and consider the mosaic as a
whole. If that is not done, one may fail to see the wood for the
trees.’
[28]
It may be so that the evidence of the security guard is also subject
to severe criticism as well
but the onus is on the plaintiff to prove
his case on a balance of probabilities. Even if it could be suggested
that Mr Zembe lied
(which suggestion cannot be excluded) there was a
vestige of truth on the overall testimony of the defendant’s
witness. However,
I am unable to find fault in rejecting his evidence
as unreliable and only accept it where it accords with the natural
effects
of the events. I am also of the view that his evidence was
prone to minimization of events.
[29]
When one breaks down the material aspects of the plaintiff’s
case the evidence is fraught
with improbabilities.
(a)
It is highly improbable that if he was admitted in hospital there
would be no records to
that effect or that such records would be
given to his brother.
(b)
It is highly improbable that Ms Maqokolo would not have noticed that
the plaintiff was unconscious.
She would have been aware further if
he was admitted in hospital as he said so.
(c)
It is highly improbable that on 12 or 19 October he would visit
hospital for the injury
which he suffered on 23 September 2017. By
that time the wound on his head had already healed if regard is had
to the doctor’s
report.
(d)
As he could not deny that he was refusing to leave the consulting
room it is highly unlikely
that pushing him away was intended to
assault him rather than removing him away from the patient to allow
the nursing staff to
perform their duties uninterrupted.
(e)
It is highly improbable that hospital records would be kept by the
brother of the plaintiff.
(f)
Although I make no finding that the plaintiff was drunk it is
interesting to note
that although he fetched Sive from the party
where he broke his leg no one seems to know how his leg was
fractured.
[30]
Moreover, the court
a quo
did not make a finding as to whether
there was an intention to inflict injuries on the plaintiff by the
security guard. The onus
was on the plaintiff to prove the assault on
a balance of probabilities. C R Snyman
Criminal Law
5 ed
(2008) at 455 defines the elements of the crime of assault as
follows:
‘
(a) conduct which
results in another person's bodily integrity being impaired (or the
inspiring of a belief in another person that
such impairment will
take place); (b) unlawfulness and (c) intention.’
At 461, the learned
author says about assault with intent to do grievous bodily harm,
that—
‘
(a)ll the
requirements for an assault set [out] above apply to this crime, but
in addition there must be intent to do grievous bodily
harm.’
[31]
With regard to Mr Zembe’s evidence, I conclude that his
evidence is also not reliable in
material respects. He denied
anything which would tend to favour the plaintiff. I find that it is
improbable that a wheelchair
would be refused when an offer was made
on the arrival of Sive. In any event that evidence remained
unchallenged under cross examination
of the plaintiff’s
case. I also find it improbable that the plaintiff would be reversing
when asked to leave which caused
him to slip and fall. I have
reservations about the evidence that there was a threat by the
plaintiff to slap him.
[32]
That said, the plaintiff still has a duty to prove his case on a
preponderance of probabilities.
In my opinion he failed. For the
above reasons the appeal should be upheld.
[33]
With regard to costs the general rule is that costs should follow the
event. There is no reason
why the rule should not apply.
[34]
In the result the following order will issue:
1.
The appeal succeeds with costs.
2.
The order of the court
a quo
is set aside and substituted
with:
‘
The
plaintiff’s claim is dismissed with costs’’
B R TOKOTA
ACTING DEPUTY JUDGE
PRESIDENT
I AGREE
B PAKATI
JUDGE OF THE HIGH
COURT
I AGREE
T MALUSI
JUDGE OF THE HIGH
COURT
Appearances:
For
the appellant
V
S Notshe SC
Instructed
by
Mbulelo
Qotoyi Attorneys
For
the respondent
S
Cole SC
Instructed
by
Mjulelwa
Inc
Date
of hearing:
30
January 2023
Date
delivered:
22
March 2023
[1]
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) at 14J-15E.
[2]
Also
reported on Saflii and Butterworths electronic search engine:
[2002]
ZASCA 98
;
[2002] JOL 10175
(SCA).
[3]
National
Employers' General Insurance Co Ltd v Jagers
1984
(4) SA 437(E)
at 440E.
[4]
Small v
Smith
1954 (3) SA 434
(SWA) at 438F;
Van
Tonder v Kilian NO en 'n Ander
1991 (2) SACR 579
(T)
(1992 (1) SA 67)
at 585A;
President
of the RSA v SARFU
2000 (1) SA 1
(CC);
(1999 (10) BCLR 1059
;
[1999] ZACC 11)
at para
61.
[5]
SARFU
ibid para 64.
[6]
S
v Hadebe and Others
1998(1) SACR 422 (SCA) at 426
e
.
[7]
Moshephi
and
Others
v R
[1980] LAC at 59F-H.