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[2023] ZAECMHC 40
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Tutshana v Kentucky Fried Chicken (Madeira Drive Thru - Mthatha) and Another (2349/2019) [2023] ZAECMHC 40 (8 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
REPORTABLE
CASE NO:
2349/2019
In
the matter between:
SAKHE
ANGELA TUTSHANA
PLAINTIFF
and
KENTUCKY
FRIED CHICKEN
(MADEIRA
DRIVE THRU – MTHATHA)
1
ST
DEFENDANT
JOLA
2
ND
DEFENDANT
JUDGMENT
Notyesi AJ:
Introduction
[1]
Mr Sakhe Angela Tutshana, the plaintiff, is
a male person employed as a nurse at Bedford Hospital, Mthatha. He
instituted an action
for damages against Kentucky Fried Chicken
(“KFC”) and one Mr Mncedisi Tunyiswa Jola, the first and
second defendants
respectively, arising from a squabble that had
occurred at the premises of KFC resulting in an alleged assault of
the plaintiff
by the second defendant.
[2]
In his particulars of claim, the plaintiff
alleged that on 24 March 2019, at approximately 22h00, he was
wrongfully and unlawfully
assaulted by the KFC staff members,
including the second defendant, when he had attended to the KFC,
Madeira Street Drive Thru
outlet to purchase food. The plaintiff
alleged that he was assaulted with a knobkierie to the head resulting
in him suffering injuries,
for which he received medical attention at
the Mthatha General Hospital. According to the plaintiff, the assault
was unjustified.
The plaintiff contended that at all material times
during the alleged assault, the KFC staff and the second defendant,
who assaulted
him, were acting within the course and scope of their
employment with the first defendant and therefore, the first
defendant is
liable to compensate him for their conduct.
[3]
The defendants admit that there was a
squabble between the plaintiff and the second defendant and customers
of the KFC outlet which
took place on 24 March 2019 and that
altercation had started approximately at 21h30 until 00h00. According
to the second defendant,
the plaintiff, who was under the influence
of alcohol, started to assault him with his hands and thereafter
head-butted him. The
second defendant alleged that the squabble had
ensued as a result of the plaintiff’s refusal to obey the
instruction that
he should remove his vehicle which had blocked a
driveway leading to the pay point in the drive-thru and thereby
causing a traffic
congestion.
[4]
The second defendant pleaded that, for the
reason of his assault by the plaintiff, he had no option other than
to defend himself
from the aggressive plaintiff and the customers who
were blocked by the plaintiff also joined the second defendant.
Accordingly,
the defendants contended that the second defendant’s
actions and the customers that had joined him in assaulting the
plaintiff,
were justified and in the circumstances, their actions
were necessary and lawful to thwart off the aggression of the
plaintiff.
[5]
Prior to the commencement of the pleadings,
the issues of quantum and liability were separated by the parties.
The trial proceeded
before this Court on the issue of liability only.
During the pre-trial procedures, the plaintiff had accepted that he
had a duty
to begin leading evidence.
The issues
[6]
On the pleadings, the issues for
determination of liability are:
(a)
The lawfulness of the assault of the plaintiff; and
(b)
Costs.
The evidence
[7]
The plaintiff was the only witness who
testified in support of his case. In his testimony, he stated that he
was employed as a male
nurse at Bedford Hospital, Mthatha. He
testified that he was resident at Tyumbu Location. On 24 March 2019,
he went to KFC Madeira
Street to purchase food. On his way to KFC, he
drove a Golf car. He arrived at KFC at approximately 22h00. He was
accompanied by
his brother, his younger sister and two lady friends.
[8]
On arrival at KFC, he entered the
drive-thru leading to a speaker where orders are made by customers of
the KFC outlet. His brother
exited the vehicle in order for him to
effect payment for the food. According to the plaintiff, the reason
his brother exited the
vehicle is that the pay point was distant from
him as a driver. At that stage, he also exited the vehicle in order
to call for
the order as he could not communicate properly through
the speaker.
[9]
They were advised that the speed point was
not working due to network issues and the KFC security guard advised
them to proceed
to the next window with a speed point. They left
their vehicle and proceeded to the next window. His brother paid for
their order
and left him waiting for the order whilst conversing with
the KFC security officer. At that stage, he requested his brother to
bring the vehicle closer as they had left it when exiting for placing
the order and making payment. The order was delivered to him,
and he
proceeded to check and verify the order.
[10]
According to the plaintiff, as he was
verifying his order, he noticed that there was a squabble involving
his brother and persons
from an Avanza which was behind their
vehicle. He then left his order at the window and proceeded to his
brother. He directed his
brother that they should leave the place as
there was a squabble and confrontation between him and the persons
from the Avanza.
At that stage, his brother left the customers he was
quarrelling with and went to their vehicle. The plaintiff also
proceeded to
their vehicle and opened the driver’s door. The
other passengers in his vehicle had also joined the squabble between
his
brother and other customers from the Avanza.
[11]
The plaintiff further testified that as he
was entering the driver’s seat, he noticed that his brother was
in front of the
vehicle, and he was assaulted by one of the customers
from the Avanza vehicle. He also noticed another man with a KFC
uniform,
with a name tag written “Jola”. The plaintiff
testified that the man from KFC approached them and ordered that they
should leave - he was shouting. The plaintiff testified that he
responded to the instructions that they should leave by saying
that
he could not leave as his brother was being assaulted in front of
him.
[12]
According to the plaintiff, the KFC
employee repeated that they should leave as he had told them
previously and he then held him
by the scruff of his neck ordering
him to leave. He then slapped him twice with an open hand on his face
and pressed his finger
against the plaintiff’s eye, pushing him
into the vehicle. At that stage, according to the plaintiff, he got
into his vehicle.
The plaintiff further testified that, on entering
the vehicle, he switched off the music from their vehicle and tried
to explain
to the KFC employee that his brother was assaulted and
that he was trying to intervene. The KFC employee ordered them to
leave
and pushed him into the vehicle.
[13]
According to the plaintiff, he exited his
vehicle and retaliated to the KFC employees’ assault by
fighting back. The plaintiff
further testified that the KFC employee
kicked him, saying that he should get back to the vehicle and he
retaliated as he was being
kicked. The plaintiff testified that at
that stage, his younger sister intervened and entered between him and
the KFC employee.
They were fighting, holding each other and
she was trying to stop the fight between him and the KFC employee.
According to the
plaintiff, the KFC employee was trying to bypass the
sister in order to continue hitting and kicking him. The KFC employee
got
hold of him and dragged him and all that time, he was assaulting
him with his fists and the plaintiff was fighting back, retaliating
from the blows of the KFC employee.
[14]
According to the plaintiff, whilst they
were holding each other, the KFC security guard came and applied
pepper spray on him and
then he freed himself and ran past their
motor vehicle. As he was running, the KFC employee came from behind
and kicked him, causing
him to fall close to the rear of the vehicle
and he suffered some lacerations in his elbows. The plaintiff
testified that as he
was laying on the ground, the KFC employee came
and lifted him up and continued assaulting him with his fists.
[15]
The plaintiff testified that he managed to
free himself again, ran towards his vehicle and as he was running
towards his vehicle,
the KFC employee struck him on his head with a
knobkierie. After he was struck with a knobkierie, he bled and turned
to face the
KFC employee. Again, the KFC employee struck him with a
stick, and he tried, at that time, to ward off the blows the KFC
employee
continued to assault him and he fell down. According to the
plaintiff, the KFC employee continued to assault him as he was laying
on the ground and he sustained injuries to his head. According to the
plaintiff, the KFC employee eventually stopped assaulting
him.
[16]
The plaintiff testified that his younger
brother, during this time, had called the police and they arrived.
When the police arrived,
they advised him to go to the Madeira Street
police station to lay a charge of assault. At the police station, the
police provided
the plaintiff with a J88 form and directed that he
should go to a doctor to examine him. He went to the hospital where
the form
was completed and thereafter, he laid charges against the
KFC employee. The plaintiff stated that they had done no wrong to the
KFC employee and that he was amazed of being assaulted. According to
the plaintiff, he was never informed about the outcome of
the
criminal case that he had laid against the second defendant.
[17]
The plaintiff was cross-examined. During
cross-examination, the plaintiff was unable to explain the
contradiction between his testimony
and his particulars of claim. It
was pointed out to him that, in his particulars of claim, it was
stated that he was assaulted
by staff members of the KFC, including
one Jola, and that in his evidence in chief, he testified that he was
only assaulted by
one KFC employee (the second defendant). The
plaintiff was unable to explain this contradiction, although he
insisted that he was
assaulted by the second defendant. It was put to
the plaintiff that when they arrived at the KFC drive-thru, they were
under the
influence of alcohol and that they caused a commotion,
blocking the traffic at the drive-thru and playing loud music.
[18]
It was put to the plaintiff that, on their
arrival next to the speaker, they all exited the vehicle, carrying
glasses, shouting,
and dancing. The plaintiff disputed that he was
under the influence of alcohol, although he accepted that his brother
and the other
passengers, except for his sister, were indeed under
the influence of alcohol. It was put to him that there was video
footage which
showed them all carrying glasses with alcohol. The
plaintiff accepted that he came out with a glass, but disputed that
it had alcohol,
saying that it contained cranberry juice. It was put
to the plaintiff that he was the one who was aggressive towards the
second
defendant and that he started the fight. The plaintiff
disputed that. It was suggested to the plaintiff that the second
defendant
acted in self-defence when he assaulted him.
[19]
The plaintiff’s case was thereafter
closed as he had called no further witnesses.
[20]
On behalf of the defendants, two witnesses
testified. The first witness to testify was the second defendant. The
second defendant
testified that his full names are Mncedisi
Mthunyiswa and that he is popularly known as Jola. He testified that
he was employed
by KFC and stationed at the Madeira Street outlet. He
was a supervisor at the time of the incident. He testified that on 24
March
2019 at approximately 21h30, he was at work. He testified that
whilst he was still engaged in his duties, he heard loud music near
the speaker. The speaker is linked to the order point. He then
noticed a Golf with all doors opened and the passengers of the
vehicle were out of the vehicle dancing and carrying glasses. The
cashier, who was supposed to take their orders, directed them
to
lower the volume of the music from their car. She also requested them
to place their order.
[21]
According to the second defendant, the
plaintiff and his companions simply ignored the request to lower the
music and just proceeded
to dance. They were in a joyful mood. The
second defendant, as the supervisor, instructed the security guard to
approach the persons
in the Golf and request them to lower the volume
of the music from their motor vehicle and that they should drive to
the next window.
The second defendant indicated that he wanted the
persons of the Golf to be served speedily so that they could leave
the drive-thru.
The Golf also blocked the traffic of the drive-thru.
[22]
According to the second defendant, indeed,
the security guard approached the persons in the Golf and requested
them to lower the
volume of their music and to move to the next
window where they would place their order. In response, the
plaintiff, who was the
driver of the Golf, simply drove to the other
side, instead of proceeding to the second window, as requested. He
then stopped the
vehicle next to the first window. The second
defendant testified that, once the Golf was next to the first window,
the driver stopped
the vehicle and the occupants exited, carrying
glasses in their hands. The second defendant further testified that
the plaintiff
was also carrying a glass, dancing with the persons
accompanying him.
[23]
According to the second defendant, the
security guard again approached them and requested that they should
drive to the second window
where they could place their order, as
previously directed. In response, the persons in the Golf left their
vehicle and walked
to the second window. The second defendant
testified that there was an Avanza vehicle that was patiently waiting
behind the
Golf and that there were two other bakkies and a small
vehicle behind the Avanza. The Avanza started hooting for the Golf,
whilst
the passengers of the Golf were busy dancing, carrying
glasses. According to the second defendant, the plaintiff was making
some
gestures towards the occupants of the Avanza, pointing out with
his middle finger.
[24]
The second defendant testified that, at
that stage, he decided to go to the second window and assist the
cashier so that the plaintiff
and his friends could be served quickly
in order for them to leave immediately. The second defendant further
testified that the
plaintiff and his friends, upon the request of the
security guard to approach the second window, proceeded to the second
window,
although after some delays. The second defendant observed
that the plaintiff and his friends were under the influence of
alcohol,
and they were continuing to drink alcohol from the glasses
that they were carrying.
[25]
The second defendant testified that upon
the arrival of the plaintiff at the second window, he served them.
The plaintiff was aggressive,
and he said that they have rights as
customers. The second defendant testified that all this time, the
people from the Avanza were
panicking. At this stage, a man
accompanying the plaintiff approached the occupants of the Avanza and
there was an argument between
him and the occupants of the Avanza. On
the other hand, the plaintiff placed his order and it was an order
for nine pieces of Kentucky
Fried Chicken. The second defendant
served the plaintiff accordingly and requested the plaintiff to
proceed to the cashier to effect
payment. At that stage, the
plaintiff called out to his companions to come and make payment.
[26]
The second defendant testified that;
indeed, the companion came to the cashier. The companion of the
plaintiff inserted his bank
card in the speed point and simply left
without entering the PIN number, going back to the persons in the
Avanza. The companion
later returned, driving the motor vehicle and
he stopped next to the second window. At that stage, the companion
came out of the
vehicle and the plaintiff gave him the speed point so
that he could insert his PIN number to the speed point. Once the
companion
inserted his PIN number, the plaintiff took the speed point
without handing it back to the cashier and went back to the Golf. The
plaintiff later returned, and he handed the speed point to the second
defendant.
[27]
According to the second defendant, after
the plaintiff had made the payment, the plaintiff took his order and
he opened it, whereupon
he took one piece and ate it. During all this
time, the people from the Avanza were shouting, frustrated and
panicking. The people
of the Avanza came out of their vehicle. At
that stage, the plaintiff approached them and as he was doing so, he
was eating his
piece of meat. According to the second defendant,
shortly thereafter, he noticed the plaintiff hitting one of the
persons from
the Avanza. The second defendant also noticed that the
companion of the plaintiff also joined in the fight between the
plaintiff
and the persons from the Avanza. Thereafter there was a
scuffle and that is how the fight began.
[28]
The second defendant testified that the
security guard tried to intervene. According to the second defendant,
it then became necessary
for him to intervene as well as the matter
was getting out of hand. He called the security guard to open the
door for him so that
he can try to intervene and stop the fighting
between the persons from the Avanza and the plaintiff, who was
assisted by his companions.
[29]
The second defendant testified that when he
went out, he found the plaintiff standing against the door of his
vehicle shouting and
he approached him, asking that they should
leave. According to the second defendant, the plaintiff ignored him.
The second defendant
then held the plaintiff by his shoulder and
pushed him inside his motor vehicle. At that time, the plaintiff was
resisting, although
he eventually overpowered him as he pushed the
plaintiff inside his vehicle.
[30]
According to the second defendant, once the
plaintiff was pushed inside his vehicle, the second defendant stepped
back after the
driver’s door was closed. According to the
second defendant, surprisingly, the plaintiff hurriedly came out from
his vehicle
and came straight to him. The second defendant testified
that the plaintiff started to assault him with many slaps, asking who
he was pushing him like that into a vehicle. The second defendant
testified that he tried to ward off the slaps. The second defendant
testified that at that stage, the plaintiff started to throw punches
at him. The second defendant reversed; however, the plaintiff
was
throwing punches and head-butted him.
[31]
The second defendant testified that, as a
result of the plaintiff’s aggression and assault, he felt that
he had no other option
and decided to retaliate by defending himself
against the plaintiff. The second defendant testified that a fight
broke out between
him and the plaintiff and that there was a scuffle.
According to the second defendant, the customers who were the
onlookers, joined
in the fight and assisted in assaulting the
plaintiff.
[32]
According to the second defendant, one of
the persons from the Avanza had a stick and he struck the plaintiff
twice on his head.
The second defendant testified that throughout, he
was grappling with the plaintiff, pushing one another and engaged in
the exchange
of punches. The second defendant testified that during
the scuffle, he got the stick and assaulted the plaintiff with the
stick.
The plaintiff ran towards the front of a vehicle and the
occupants of the vehicle that he ran towards, also assaulted him. The
second defendant further testified that it was at that stage that the
security guard came with the pepper spray and sprayed the
plaintiff.
The second defendant also testified that the plaintiff was further
assaulted with a stick by a man wearing blue shorts
and a white
shirt, causing him to fall.
[33]
The second defendant further testified that
the plaintiff was also kicked whilst laying on the ground. The second
defendant further
testified that when the plaintiff was laying down
on the ground, he drove the plaintiff’s vehicle into a parking
bay. The
plaintiff, at that stage, called his sister and asked that
she take photos of the scene. The second defendant further testified
that, after parking the plaintiff’s vehicle, he got inside the
building and made a telephone call to the police. Approximately
at
00h00, the police arrived and made enquiries about the incident.
The second defendant gave his explanation to the police
and
thereafter the police informed him to open a case of assault at the
police station.
[34]
According to the second defendant, the
police also requested the plaintiff and his companions to drive to
the police station and
unfortunately, the plaintiff was drunk and so
were his companions. According to the second defendant, they were all
unable to drive
and the plaintiff’s vehicle was driven to the
police station by a police officer.
[35]
The second defendant testified that he did
open a case of assault against the plaintiff. The second defendant
had also obtained
a J88 which was completed by a doctor.
[36]
The second defendant was cross-examined. It
was disputed that he immediately laid charges of assault against the
plaintiff. It was
further suggested that the second defendant was the
first person to assault the plaintiff. It was further suggested that
the second
defendant had exceeded the bounds of his self-defence for
reason that, when he assaulted the plaintiff with a stick, the
plaintiff
was posing no danger to him. During cross-examination,
contradictions were pointed to the second defendant relating to how
many
times he assaulted the plaintiff with a stick.
[37]
The next defence witness was Mr Siphosethu
Moyakhe. He testified that he was employed at KFC as a security
guard. He testified that
at approximately 21h30, a navy Golf arrived
at the Madeira Street KFC outlet. The Golf was playing loud music. He
approached the
persons occupying the Golf to go to the second window
so that they can be served. They drove around and stopped at the
first window
instead of the second window. They exited their vehicle,
carrying glasses in their hands and the car was playing loud music.
He
again approached them and requested that they should move to the
second window. Instead of driving their vehicle to the second window,
they walked. Mr Moyakhe requested them to remove their vehicle. They
ignored him and walked to the second window, dancing with
glasses in
their hands. According to Mr Moyakhe, the plaintiff was in the
company of four other persons to make a total of five
persons. They
were dancing, carrying glasses and shouting.
[38]
According to Mr Moyakhe, there were other
customers who waited to be served. There was a quarrel between the
persons of the Golf
and the customers that were driving a vehicle
behind their vehicle. Mr Moyakhe testified that there was a fight
between the customers
from the Golf and those from the vehicle that
was coming from behind. He tried to intervene though he was
overpowered. The second
defendant came out to assist him to stop the
fighting. The second defendant held the plaintiff and pushed him
inside the Golf.
Mr Moyakhe testified that the plaintiff pretended to
be sitting inside the Golf, however, he came out and lashed out at
the second
defendant with an open hand in his face. According to Mr
Moyakhe, the second defendant then retaliated and there was a fight.
Mr
Moyakhe further testified that customers also joined and assaulted
the plaintiff.
[39]
According to Mr Moyakhe, the second
defendant also obtained a knobkierie and assaulted the plaintiff. Mr
Moyakhe further testified
that the security guards intervened at that
stage and stopped the fight. Mr Moyakhe further testified that the
vehicle of the plaintiff
was driven by the second defendant to the
parking bay.
[40]
Mr Moyakhe was cross-examined. During
cross-examination, Mr Moyakhe conceded that the second defendant
acted out of anger when he
assaulted the plaintiff with a stick.
[41]
After the evidence of Mr Moyakhe, the
parties submitted evidence from CCTV footage as an exhibit. The
footage had been played by
the parties with certain admissions made
relating to the scene. The parties agreed about the contents of the
CCTV footage and thereafter
the case was closed.
[42]
The CCTV footage was watched by all
parties, including the plaintiff, the second defendant and the
witness.
[43]
That was the totality of the case.
Common cause facts
[44]
On the totality of the evidence, certain
facts are common cause between the parties. The incident forming the
subject of these proceedings,
took place on the night of Sunday, 24
March 2019. It is common cause that at the time of the incident, the
plaintiff was in the
company of his younger brother, sister and two
other persons. It is also undisputed that the plaintiff’s
passengers consumed
alcohol, and that the plaintiff was seen by the
second defendant also carrying a glass, although the contents in the
glass remain
in dispute, whether it was alcohol or juice.
[45]
It is also undisputed that there was a
squabble involving the plaintiff and his companions with other
patrons of the KFC who were
travelling in an Avanza motor vehicle. It
was never put in dispute that the companions of the plaintiff had
emerged out of their
vehicle carrying glasses containing alcohol and
dancing within the vicinity of the drive-thru with loud music
emanating from their
vehicle. The scuffle between the plaintiff and
the second defendant remains undisputed. It is also undisputed that
the plaintiff
was assaulted by the second defendant and other
customers and that the second defendant was also assaulted by the
plaintiff.
It is also undisputed that the plaintiff was at one
stage assaulted with a knobkierie by the second defendant.
[46]
What remains in serious dispute is whether
the plaintiff was assaulted by the second defendant in self or
private defence as alleged
by the second defendant.
Contentions of the
parties
[47]
Mr
Sintwa
,
counsel for the plaintiff, submitted that the assault of the
plaintiff was unjustified and that the actions of the second
defendant
were unlawful. In advancing the submission, Mr
Sintwa
contended that the plaintiff was not a danger to the second defendant
and that there was no attack on the second defendant by the
plaintiff. He contended that the attack on the plaintiff by the
second defendant was unlawful and that there was no probable cause
or
provocation from the plaintiff.
[48]
Insofar as the conflicting versions of the
plaintiff and the second defendant are concerned, Mr
Sintwa
submitted that the second defendant was not a credible witness and
that he had contradicted himself in many respects and that the
Court
would be justified in rejecting the second defendant’s evidence
and that of his witness in preference of the plaintiff’s
evidence. Mr
Sintwa
had conceded, in his submissions, that the plaintiff’s evidence
had some contradictions, although he described them as of
a minor
nature.
[49]
On the contrary, Mr
Mpeto
,
counsel for the defendants, submitted that the defendants had proved
that the plaintiff was the aggressor on the date in question
and that
the second defendant, acting together with the patrons of KFC, was
justified in defending himself against the plaintiff’s
aggression. He contended that the plaintiff had caused a nuisance on
the premises and blocked the traffic of the drive-thru. Mr
Mpeto
submitted that the plaintiff was ordered by the second defendant to
leave the premises and he ignored the instructions and instead,
assaulted the second defendant. The contention of Mr
Mpeto
in this regard, was that in such circumstances, the second defendant
was justified in defending himself against the plaintiff.
Similarly,
Mr
Mpeto
submitted that the plaintiff was not a credible witness and that his
uncorroborated evidence should be rejected. He pointed out
that the
plaintiff had contradicted himself in many respects and that was
consistent with a witness who is not telling the truth
about the
events leading to the incident of assault.
[50]
Mr
Mpeto
contended that the plaintiff, on the day in question, was under the
influence of alcohol and that he was uncontrollable as a result
of
alcohol consumption. Mr
Mpeto
has also urged this Court to draw adverse inferences against the
plaintiff for the failure to call his companions, especially his
younger sister, who, according to the plaintiff, had intervened when
he was assaulted. Mr
Mpeto
pointed out that the reason why the plaintiff did not call his
witnesses, is that he knew that they would contradict his version
and
that he was not telling the true story about the incident.
Legal principles
[51]
Where
the defendant, in an action against him based on assault, as is the
case here, has pleaded self-defence, the onus is generally
upon him
to plead and prove that the force used in defending himself was in
the circumstances reasonable and commensurate with
the plaintiff’s
alleged aggression.
[1]
The test
for determining self-defence is objective, that is, whether a
reasonable person in the position of the defendant, would
have
considered that there was a real risk that death or serious injury
was imminent.
[2]
[52]
In
Zandisile
Ntsomi v The Minister of Law & Order
,
[3]
Kumleben JA quoted from the
case of
Ntanjana
v Vorster and Minister of Justice
[4]
1950 (4) SA 398
(C) 406 A-D and outlined the principles as follows:
“
The
very objectivity of the test, however, demands that when the Court
comes to decide whether there was a necessity to act in self-defence
it must place itself in the position of the person claiming to have
acted in self-defence and consider all the surrounding factors
operating on his mind at the time he acted. The Court must be careful
to avoid the role of the armchair critic-wise after the event,
weighing the matter in the secluded security of the courtroom….
Furthermore, in judging the matter it must be ever present
to the
mind of the judge that, at any rate in the particular circumstances
of this case, the person claiming to act in self-defence
does so in
an emergency, the creation of which is the work of the person acting
in a situation of imminent peril. “Men faced
in moments of
crisis with a choice of alternatives are not to be judged as if they
had had both time and opportunity to weigh the
pros and cons’
per Innes JA in
Union Government v Buur
(1914, AD 273
at p 286).”
[53]
In
Ntamo
& Others v Minister of Safety & Security
[5]
it
was stated that where the threatened harm can be avoided without the
use of force, self-defence cannot succeed. When force is
necessary to
neutralise the threat of harm, the force must not be more than is
reasonable to achieve that purpose.
[54]
In
Bennet
v Minister of Police,
[6]
the court held as follows:
“
The
normal course the law requires a plaintiff who seeks damages for
humiliation (contomelia) to allege and prove that the defendant
intended whether directly (dolus directus) or indirectly (dolus
eventualis) to injure plaintiff. There is no need to allege an
improper motive save perhaps in order to show defendant’s true
intention or to help in assessing the quantum of damages….
But
normally plaintiff must allege and prove animus injuriandi, the claim
being founded on the action injuriarum.”
[55]
On the central issue regarding the
circumstances leading to the assault of the plaintiff, the parties
have adduced conflicting versions.
The plaintiff maintained that he
was assaulted by the second defendant without any form of
justification, whilst on the other hand,
the second defendant
maintains that he acted in private defence and that his actions were
necessary in the circumstances where
the plaintiff was aggressive and
that it was the plaintiff who started the fighting. In these
circumstances, the court would have
to evaluate and decide on the
credibility of witnesses and thereafter, determine whether the
probabilities favour one or the other
version, and would have to
decide what evidence is acceptable and why.
[56]
In
National
Employers’ Mutual General Insurance Association v Gany
[7]
,
it was stated:
“
Where
there are two stories mutually destructive, before the onus is
discharged, the court must be satisfied that the story of the
litigant upon whom the onus rests is true and the other is false.”
[57]
In
the matter of
The
National Employers’ General Insurance v Jagers
[8]
the court held as follows:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in criminal
cases, but nevertheless where the onus rests on the Plaintiff as in
the present case, and where there are two
mutually destructive
stories, he 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.”
[58]
In
Stellenbosch
Farmers’ Winery Group Limited and Another v Martell CIE and
Others
[9]
it was held:
“
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. 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 or 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.”
Analysis and
evaluation of evidence
[59]
In relation to the assault, the plaintiff
has formulated his particulars as follows:
“
On
or about the 24
th
of March 2019 at about 22h00, the plaintiff was unlawfully,
wrongfully and intentionally assaulted by Kentucky Fried Chicken
(KFC)
staff members including the one Jola at KFC Madeira. The
plaintiff was assaulted with a Knobkerrie with various blows on the
head
and the others from behind, straight at the back and also with
fists all over the body.”
[60]
On proper scrutiny of the above allegation,
the suggestion by the plaintiff is that he was assaulted by more than
one staff member
of KFC and the second defendant. In his oral
evidence, the plaintiff changed the picture completely, adducing
evidence that he
was only assaulted by the second defendant. There
was no explanation for this contradiction. On the contrary, the
second defendant,
with the corroboration of his witness, Mr Moyakhe,
testified that the plaintiff was the first to assault the second
defendant.
In response, the plaintiff was assaulted by the second
defendant and the customers of KFC, not the staff members of KFC as
alleged
by the plaintiff in the particulars of claim.
[61]
The plaintiff was not alone at the time of
the incident. He was accompanied by his younger brother, sister and
two other persons.
For some inexplicable reasons, the plaintiff
elected not to call any of his companions of the day. Whether or not
a party should
call a witness, is inherently problematic as the Court
is not in a position to know all the reasons why a witness is not
called
as the Court is not privy to the relationship between the
party and the witness.
[62]
In
Minister
of Safety & Security v Zoyisile Stanley Ntopane NO
[10]
Greenland AJ held:
“
[i]
. . . so each case must be judged on its own merits and the Court
should only drawn
an adverse inference if it is safe to do so. See
Webronchek v LK Jacobs 1 co Ltd
1948 (4) SA 671
(A). In that case,
Van der Heever JA set out that:
“
moreover
a litigant who calls witness vouches, as it were, on pain of being
discredited himself, for his probity and truthfulness.
The potential
witness may be untruthfully, hostile, he may have a bad memory of an
unfortunate presence. After all the Plaintiff
was entitled to rest
his case upon evidence which he considered adequate to discharge the
onus which lay upon him.”
[ii]
See also Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979
(1) SA 621
(A), the principle was laid down as follows:
“
where
a party fails to call as his witness as one who is available and able
to elucidate the facts, whether the inferences that
the party failed
to call such a witness because he feared that such evidence would
expose facts unfavourable to him should be drawn
would depend on the
facts peculiar to the case where the question arises.”
[iii]
In the case of Just Names Properties II CC & Another v Fourie &
Others
2007 (3) SA 1
(W) Jajbhay J, mindful of Webranchek v LK Jacobs
supra, however concluded –
“
In
the present matter I am not persuaded that an inference against the
Defendant should not be drawn from the fact that they did
not call
Oosthuizen as a witness. There were many issues that called out for
her testimony. This was not forthcoming. I was not
informed as to
what the reasons for her non-appearance was. Strictly speaking, I am
not entitled to an explanation, however, at
the end of the day, I
must draw certain reasonable inferences from such a decision . . .”’
[63]
Similarly, in this case, the plaintiff’s
sister, who is alleged to have intervened when the plaintiff was
allegedly assaulted
by the second defendant, has not been called and
should have been called. This Court was not informed as to what the
reasons were
for her non-appearance as a witness. The evidence of the
plaintiff’s sister, in my view, was material because the
plaintiff
is alleged to have been an aggressor by the second
defendant and his witness. In circumstances where the Court accepts
the version
of the second defendant, without doubt, the second
defendant would have been entitled to defend himself against the
plaintiff’s
aggression. Accordingly, I must draw certain
reasonable inferences from the failure to call for evidence of the
person who is alleged
to have intervened and who was in a position to
observe the events as they unfolded. I hold the view that the
plaintiff’s
sister was a material witness in this regard.
[64]
Another hurdle in the plaintiff’s
case is the allegation that he and his companions were under the
influence of alcohol and
that they had caused a fracas at KFC, also
blocking the traffic in the drive-thru. The evidence of the video
footage which was
played by the parties clearly shows the plaintiff
carrying a glass, together with his companions. The evidence of the
second defendant,
although it had shortcomings, on the whole, was
supported by the evidence of Mr Moyakhe and the video footage
regarding the behaviour
of the plaintiff, together with his
companions. I have no doubt in my mind that the plaintiff and his
companions were the main
cause of the squabble at the KFC outlet and
that the second defendant, in his capacity as a supervisor, was
obliged to intervene
in order to restore law and order in the
premises.
[65]
The plaintiff was asked by the second
defendant to leave the premises and he was assisted by the second
defendant to get into his
vehicle. He resisted the reasonable request
and instead, assaulted the second defendant. On the evidence, as a
whole, I have no
doubt in my mind that the plaintiff and his
companions were troublesome as a result of the influence of alcohol.
[66]
The plaintiff attempted to distance himself
from the influence of alcohol. He suggested that on the date in
question, he had played
football and that he was drinking juice. When
questioned in this regard, he suggested that he played football until
approximately
17h00. Despite his version, he suggested that he was
still thirsty at about 21h00. I find this to be improbable. The
evidence of
the second defendant and his witness is that the
plaintiff was under the influence of alcohol, and I cannot fault this
evidence
in the circumstances of the case. I also accept that the
patrons of KFC assaulted the plaintiff on the day. The evidence was
that
he was provoking the patrons from the Avanza vehicle pointing
them with the middle finger. He had blocked the patrons from
proceeding
through the drive-thru.
[67]
The evidence of the plaintiff was not
convincing. He had contradicted himself in many respects and his
evidence contained many improbabilities.
I accordingly reject the
evidence of the plaintiff. The plaintiff tried to suggest that he is
the one who had called the police
or that the police were called by
his companions. When questioned on this aspect, it became clear that
he was merely speculating
in this aspect. In this regard, I quote
from the record:
“
Mr
Sintwa:
How did they come there, the policemen?
Mr
Tutshana: My younger brother, M’Lord called for the police.
Mr
Sintwa
:
Alright. In other words, it is not the defendant who called the
police.
Mr
Tutshana: No M’Lord. The police were called by us, M’Lord.
Court: So, you are not in
a position to say, KFC could indeed called the police or did not call
the police
Mr
Tutshana: I know, M’Lord that the police were called by us”
[68]
The younger brother of the plaintiff was
not called and therefore, this aspect of evidence would be hearsay,
especially since the
plaintiff does not claim to have been present
when his brother made the call to the police. The plaintiff could not
truly dispute
the allegations of the second defendant that he is the
one who had called for the police. It is obvious that the plaintiff
was
not present when the second defendant contacted the police.
[69]
The second defendant was also an
unimpressive witness. He contradicted himself in certain respects. He
contradicted himself in relation
to hitting the plaintiff with the
stick or knobkierie and how he had obtained the stick or knobkierie
with which he assaulted the
plaintiff. However, I do not hold the
view that he was not telling the truth. His evidence in material
respects was corroborated
by his witness, Mr Moyakhe, and to that
extent, his evidence is more reliable than that of the plaintiff. I
find the testimony
of Mr Moyakhe to have been honest, reliable and
truthful.
[70]
On the totality of the evidence, I do find
that there was a fracas at the KFC drive-thru, which had led to a
fight between the plaintiff,
the second defendant and the patrons of
the KFC outlet. The plaintiff, acting together with his companions,
was the cause of the
commotion and squabble. The behaviour exhibited
by the plaintiff, together with his companions, is consistent with
persons who
were under the influence of alcohol. The second defendant
assaulted the plaintiff, acting in his self-defence and against the
actions
of the aggressive plaintiff.
[71]
The plaintiff has failed to discharge the
onus resting upon him to prove his case on a balance of probability
and the second defendant,
too, insofar as the further assault of the
plaintiff was concerned, was not convincing, although, Mr
Mpeto
submitted that the second defendant was acting in self-defence. My
view, in this regard, is that the second defendant was acting
out of
the plaintiff’s provocation at some stages during the process
of the assault. The fighting between the plaintiff and
the second
defendant was sort of like a movie scene. I am unable to say that the
second defendant exceeded his bounds of self-defence
at a particular
stage of the fighting due to its nature, which was like a movie
scene.
Costs
[72]
The plaintiff, in my view, was involved in
a fracas at the KFC outlet. It appears that the actions were brought
about as a result
of alcohol consumption. I have found that the
plaintiff was not a credible witness. I have also found that the
second defendant
was not a credible witness. Both the plaintiff and
the second defendant, in my view, are not entitled to any costs.
Neither of
the two parties has made out a case. The total picture on
the evidence as a whole is that there was fighting, rather than an
unprovoked
assault. For these reasons, I will not award costs against
the plaintiff, though the defendants are successful. On an analysis
of evidence, the fighting could have been stopped without any form of
violence by the plaintiff and the employees of the first defendant.
The plaintiff could have walked away and the second defendant could
have called the police from the beginning. I am constrained
not to
award costs in this matter against any of the parties. The entire
evidence was unsatisfactory by all the parties.
Conclusion
[73]
The plaintiff has failed to make out a case
of assault and I come to the conclusion that the plaintiff’s
claim should be dismissed.
For reason that I have found that this was
a brawl and that the second defendant or the security guards of KFC
could have done
better, I will decline to award costs in their
favour.
Order
[74]
In the result, the following order is made:
1.
The plaintiff’s claim is hereby dismissed.
2.
Each party shall bear its own costs.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT,
EASTERN CAPE DIVISION
APPEARANCES:
Counsel
for the Plaintiff
:
Adv Sintwa
Attorneys
for the Plaintiff
:
M Ndamase Attorneys
Mthatha
Attorneys
for the Defendants
:
Graham Mpeto & Associates Inc
Mthatha
Date
heard
:
07/06/2023
Date
delivered
:08/08/2023
[1]
Mabaso
v
Felix
1981 (3) SA 865
(A) at 874.
[2]
Mngwena
& Another v Minister of Safety & Security
2006
(4) SA 150
SCA at 158C-D, see also
Lufuzo
Mbangi
v Minister of Safety & Security,
unreported
judgment of the Eastern Cape Division, case no: 891/2006 at 30
(‘Lufuzo Mbangi’).
[3]
Ntsomi
v Minister of Law & Order
1990
(1) SA 512
(C) at 528F-G.
[4]
Ntanjana
v Vorster and Minister of Justice
1950
(4) SA 398
(C) 406A-D.
[5]
Ntamo
& Others v Minister of Safety & Security
2001
(1) SA 830
(TKHC) at 836H-J (‘
Ntamo’
).
[6]
Bennet
v Minister of Police
1980
(3) SA 24 (C)
[7]
National
Employers’ Mutual General Insurance Association v Gany
1931
AD 187
at 199
[8]
The
National Employers’ General Insurance v Jagers
1984
(4) SA 437
(ECD) at 440D-441A
[9]
Stellenbosch
Farmers’ Winery Group Limited and Another v Martell CIE and
Others
2003
(1) SA 11
(SCA) para 5. See also
SPW
Group Ltd and Another v Martell ETCIE and Others
2002
(1) SA 11
at 14I 15E.
[10]
Minister
of Safety & Security v Zoyisile Stanley Ntopane NO
case
no: A85/07