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2022
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[2022] ZALMPPHC 42
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Rossouw v Mogorotsi and Another (HCA30/2019) [2022] ZALMPPHC 42 (10 August 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCA30/2019
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
VINCENT
ANDRIES ROSSOUW
APPELLANT
And
RAPULA
LUCKY MOGOROTSI
FIRST
RESPONDENT
ISAAC
PHETO
SECOND
RESPONDENT
JUDGMENT
KGANYAGO
J
[1]
The appellant who was the plaintiff in the court a quo, had
instituted an action against the respondents
who were first and
second defendants in the court a quo. The appellant’s claim is
based on alleged malicious prosecution.
It is alleged that the
respondents have laid a false complaint of
crimen iniuria
and
pointing of a firearm against the plaintiff with the South African
Police Services (SAPS). The appellant was prosecuted and
acquitted on
all the charges. The respondents have defended the appellant’s
claim and have also filed counterclaims against
the appellant for
crimen iniuria
. The appellant’s claim and the second
respondent’s counterclaim were dismissed. The first respondent
(first defendant
in the court a quo) succeeded with his counterclaim
and the appellant was ordered to pay him R65 000.00 for having
humiliated and
impaired the first respondent’s dignity.
[2]
The appellant is appealing against the whole judgment and order of
the court a quo. The second respondent
(second defendant in the court
a quo) did not appeal against the dismissal of his counterclaim.
[3]
The appellant in the court a quo has testified as follows. That on
1
st
September 2016 he was the deputy sheriff for four and
half years. As deputy sheriff it was legal for him to carry a
firearm. The
relationship between the sheriff’s office and
Thabazimbi Municipality was not that good, as they had encountered
some struggles
with the municipality especially with the attachments
and removals. That the office of the sheriff had received the threats
from
the employees of the municipality when they removed all the
furniture of the municipality on 25
th
August 2016.
[4]
On 1
st
September 2016 just before 13h00 he closed the
security gate to prevent people from entering the sheriff’s
office during
lunch time which is between 13h00 and 14h00. That there
is a painted sign on the wall next to the gate stating that lunch is
between
13h00 and 14h00. After he had locked the gate he went into
the house. On entering the house, the previous domestic worker told
him that she was going out for lunch. He accompanied their domestic
worker up to their principal gate, where he unlocked it to let
her
out. After that he did not lock the gate, but put on the padlock so
that it does not open. He went back into the house and
sat in his
room which was facing the driveway.
[5]
At about 13h30 as he was sitting in his room, he heard a rattle at
their front gate as if someone was
trying to open the gate. He stood
up, looked through the window and saw the respondents entering the
premises. He and his sister
were the only people in the house at that
time. With the threat that they have received from the municipality a
couple of days
before, he ran out of the house to prevent the
respondents from entering the house. He thought that they have come
to attack them.
He found the respondents on the security gate that
separate the sheriff’s office and the house. That gate they
leave it open
during lunch time to enable the dogs to move freely in
the yard from the house to the offices. However, during office hours
that
gate is locked for the dogs to remain in the main house.
[6]
On arrival at the security gate, the appellant told the respondents
that they were not supposed to be
in the yard and that they should
move out. The respondents told the appellant that he was not treating
them with humanity. The
appellant gently forced the respondents out
of the yard, but they did not listen. As the appellant was trying to
take the respondents
out of the yard, one of his dogs tried to bite
the first respondent and he (witness) stopped it. The appellant
accompanied the
respondents until the front gate, and on arrival at
the gate he told the respondents to go out of the yard, but they
refused. The
appellant then gently pushed the respondents out of the
yard and closed the gate. The whole time the respondents were telling
the
appellant that he was treating them in an inhuman way. The
appellant asked the respondents why they were at the sheriff’s
offices, but they refused to tell him.
[7]
Whilst the respondents were outside the yard, they were arguing with
the appellant. The respondents
even asked the appellant to give them
the sheriff’s phone number, so that they can call the sheriff
(appellant’s father)
and tell him how the appellant had treated
them. The respondents wanted the appellant’s father to teach
him a lesson. The
appellant stated that the second respondent has
been at the sheriff’s office on several occasions and he knows
how the procedure
works at the sheriff’s office.
[8]
The appellant’s sister and one staff member arrived at the main
gate where the argument between
the appellant and the respondents was
still continuing. The respondents told the appellant’s sister
that the appellant was
treating them in an inhuman way. The
respondents requested the appellant’s sister to give them the
sheriff’s number
and the full details of the appellant. The
appellant’s sister gave the respondents the information they
were seeking. After
that the appellant walked away from the
respondents and left his sister with them.
[9]
As the appellant was walking away, he heard the respondents screaming
to his sister and he turned back
to the gate. On arrival at the gate
the appellant tried to talk to the respondents, but the respondents
were arguing like crazy
people and the respondents started opening
the gate. The respondents started taunting the appellant, and that
ticked off the appellant
and he started chasing the respondents. The
appellant could not remember the exact words that the respondents
said which ticked
him off. The appellant ran past the second
respondent and chased the first respondent as he was the main
instigator. The appellant
chased the respondents a couple of meters
until the other side of the yard and he stopped. By that time the
first respondent was
laughing at him whilst the second respondent was
standing next to the gate.
[10]
The first respondent continued laughing at the appellant, and the
appellant went back to first respondent
and continued chasing him
down the street for about three houses down the street. The whole
time the second respondent was behind
the appellant. The appellant
stopped chasing the first respondent and walked back towards the
second respondent. As the appellant
was walking towards the second
respondent, the first respondent was screaming at the second
respondent to use his phone and take
the video as the appellant had
assaulted him. The appellant denied that he had assaulted the first
respondent. When the appellant
walked past the second respondent, he
told the second respondent not to come back to the offices. According
to the appellant, he
received a call from his father telling him that
the first respondent was going to lay a criminal case against him.
[11]
Later in the afternoon the appellant received an email from the first
appellant and other employees of the
municipality and the first
appellant’s union, stating that the appellant had pointed the
first respondent with a firearm,
treated him inhumanly, and also
called the first respondent with the ugly words which the appellant
was not going to repeat them.
The appellant denied pointing the first
respondent with a firearm. Thereafter the first respondent laid a
criminal case against
the appellant and he was arrested. At the
police station the appellant was told that it was only the first
respondent who had laid
a criminal case of pointing with a firearm
and
crimen injuria
against him. The appellant appeared in
court about nine times, and he was found not guilty and discharged in
terms of section 174
of the Criminal Procedure Act.
[12]
The appellant was cross examined and he conceded that it was only the
first respondent who had opened a criminal
case against him. The
appellant also conceded that when he was at the police station there
was only one charge laid against him.
The appellant stated that he
had chased the first respondent from the sheriff’s office, as
the first respondent was the instigator
of making threats to him, and
also laughing at him. The appellant also stated that he was shocked
by the first respondent’s
actions, and his instinct when he got
shocked was to protect his father, protect what was dear to him, and
at that time their property
was open including their house. The
appellant further stated that when the respondents refused to go
outside the yard, he forced
them to go out of the premises. The
appellant disputed that he had called the first respondent
klein
kaffir.
That concluded the appellant’s evidence and he
closed his case.
[13]
The first respondent took the witness stand and testified under oath.
He testified that he is a union representative
of IMATU, and that he
has been allocated an office which is within Thabazimbi Local
Municipality. In that office he has been allocated
a laptop and
printer for office use for union activities. That most of the time he
will be out of office. During 2016 the assets
of the municipality
were attached by sheriff of the court. It happened that the sheriff
attached the printer which was not the
asset of the municipality. His
colleagues informed him that the sheriff had told them that he can
come to sheriff’s office
to enquire how he can claim the
printer back.
[14]
The first respondent notified the second respondent who was the
chairperson about what had transpired to
the printer. The first
respondent requested the second respondent to accompany him to the
sheriff’s office at about 13h00.
They arrived at the sheriff’s
office at about 13h40, and found the gate open. They entered through
the gate and walked towards
the offices. They walked until the office
door and stood in front of the door. As they were standing there, an
African lady who
seems to be a domestic worker came from the
direction of the house. They greeted that lady and told her that they
were there to
see the sheriff. Before that lady could respond to
them, the appellant came and instructed that lady to go back into the
house,
and the lady obliged.
[15]
The appellant started shouting at the respondents and telling them to
get out of the premises. The respondents
walked in a reverse way
until the gate whilst asking the appellant why he was treating them
like that. They went out of the premises
and the appellant closed the
gate. When they were outside the premises, the first respondent asked
the appellant why he was treating
them like that, and not asking them
why they were there at the premises. The appellant told them that
they were trespassing and
they must go away. The first respondent
pleaded with the appellant to listen to them before they could go
away, but the appellant
shouted at them, telling them to go away as
they were trespassing.
[16]
As the appellant was shouting at them loudly, a certain white lady
came and asked what was happening. The
first respondent told that
lady that they were there to see the sheriff to enquire about the
printer. As the first respondent was
explaining to that white lady,
the appellant continued shouting and telling them that they were
trespassing. That lady told them
that the sheriff was not there, but
that it was the sheriff son (appellant). That lady told them that the
appellant was the deputy
sheriff. The first respondent requested that
lady to furnish him with the telephone numbers of the sheriff so that
he phone him
and explain to him what his son did to them.
[17]
That lady gave the first respondent the sheriff’s numbers, and
after that the first respondent requested
the names of the appellant.
By then the appellant was still shouting and telling the respondents
to go away. The appellant jumped
over the fence as the gate was
locked and went towards the respondents. When the respondents saw
that the appellant had jumped
over the fence and was coming towards
them, they ran away and took separate ways. The first respondent ran
towards the main road.
The first respondent denied that he was
laughing at the appellant during the time he was running away. The
first respondent stated
that it was not possible for him to laugh as
he felt threatened and was running for his life. The first respondent
further stated
that he felt threatened as he saw that the appellant
was in possession of a firearm when he jumped over the fence. He did
not know
what the appellant was going to do with the firearm, and
that is the reason why he ran away.
[18]
As the first respondent was running away, he could hear the
appellant’s foot steps behind him. The
appellant stopped
chasing the first respondent and uttered the following words: “
ek
sal jou kry jou klein kaffir.”
He felt so humiliated and
degraded by being called a klein kaffir. The first respondent stated
that he was 44 years of age and
that when the appellant testified he
had stated that he was 27 years of age. The first respondent stated
that when he stopped running,
he looked back and saw the appellant
putting his firearm back into the pouch. That the situation was so
frightening and also in
that era to be called a klein kaffer whilst
been chased on the street was not right.
[19]
The first respondent stated that he saw the appellant walking towards
the sheriff’s office, and the
second respondent was next to the
sheriff’s office. The first respondent called the second
respondent to be careful as the
appellant was having a firearm, and
that the second respondent must join him so that they can go to the
police station. The appellant
walked past the second respondent and
the second respondent joined the first respondent. Thereafter the
respondents boarded the
second respondent’s vehicle and drove
straight to the police station.
[20]
On arrival at the police station the first respondent explained to
the police officer who was in the front
desk as to what had happened.
That police officer told the first respondent that he must go and
speak to the appellant and that
he will not open a docket. The first
respondent told that police officer that he was afraid to go back to
the sheriff’s office
and that is when the police officer called
the detective to assist the first respondent. After that the first
respondent made a
written statement to the police. The first
respondent also wrote an email to the sheriff and in that email
explained everything
that had happened. He also explained to the
sheriff that he was humiliated when he was called a klein kaffir, and
that he was considering
opening a criminal case against the
appellant.
[21]
The appellant was criminally charged, he appeared in court and was
found not guilty and discharged in terms
of section 174. During 2017
the first respondent received summons from the appellant who had
instituted the current action against
him. That is when the first
respondent learned that the appellant had been found not guilty and
discharged in terms of section
174. That when he laid the charges
against the appellant he was frightened and had a reasonable believe
that an injustice had been
done to him. He did not have any malicious
intent against the appellant. On that particular date it was for the
first time he met
the appellant.
[22]
The first respondent was cross examined and he stated that prior to
the incident he did not have any problems
with the sheriff, and that
he did not know whether the municipality had problems with the
sheriff. The first respondent conceded
that he was aware that the
sheriff had attached the assets of the municipality. The first
respondent stated that when the sheriff
attached the property of the
union, he was not angry because he knew that one had to follow
certain procedures in order to claim
back the printer. When asked
whether he did not think that it was lunch time when he found the
gate closed, and there was nobody
there, he responded by saying that
if one goes to the offices during lunch time, they are not chased
away but told to wait. The
first respondent conceded that he did not
see the appellant pointing him with a firearm, but that he saw the
appellant putting
the firearm back into the pouch when chasing him.
[23]
The first respondent stated that in his statement to the police he
had stated that the appellant was chasing
him with a firearm and when
he looked back he saw the appellant putting that firearm back into
the pouch. When it was put to the
first respondent that in his
written police statement he had stated that the appellant jumped the
gate and took out a firearm from
his waist and had held it pointing
it at them and they ran away, the first respondent responded by
stating that it not different
from what he had told the court.
Further that to him when the appellant jumped the gate he took out
his firearm and chased them
with that firearm.
[24]
When asked why the appellant was charged with two counts of pointing
with a firearm and two counts of
crimen injur
ia if the second
respondent was his witness, the first respondent stated that it was
for the prosecution to answer that, as they
are the ones who have
formulated the charges. The first respondent stated that in his
statement to the police he had stated that
the appellant had called
him a klein kaffir, has chased him with a gun, and that the second
respondent was there and he saw and
heard everything.
[25]
The second respondent testified that on 1
st
September 2016
around lunch time he got a call from the first respondent requesting
him to accompany the first respondent to the
sheriff’s office
in order to enquire on how they can get back the union’s
printer. When they arrive at the sheriff’s
office they found
the gate open, and they proceeded straight to the office. When they
approach the office, they saw that it was
closed. They saw a lady
ironing clothes, and they waived at her and asked her how they can
get hold of the sheriff. Whilst the
lady was walking towards them, a
white male came from behind that lady and told them to go back as
they were not supposed to be
there.
[26]
They pleaded with that white male to listen to them, but that white
male told them to go away. That the white
male was the appellant.
There were dogs which were following the appellant and they started
barking. When the dogs started barking
the appellant told them that
even the dogs will bite them. The appellant started pushing them out
of the yard and they were walking
towards the gate in reverse. When
they arrive at the gate they told the appellant that they wanted to
talk to the sheriff, and
the appellant told them that they were not
supposed to be there. The appellant closed the gate and told them
that the gate was
closed and they were not supposed to be there.
[27]
The second respondent started arguing with the appellant telling him
that he had just closed the gate. The
appellant told the second
respondent that the gate was closed, and he locked it. As they were
arguing, the appellant’s sister
came to the gate and talked to
them politely. The appellant’s sister told them that the
appellant was the deputy sheriff.
They told the appellant’s
sister that they wanted to ask the sheriff if their printer was not
at the sheriff’s office.
The sheriff’s sister told them
that the sheriff was not there. That is when the first respondent
asked the sheriff’s
phone numbers from the appellant’s
sister and also asked her as to how they could get hold of the
sheriff. After the appellant’s
sister had given them the
sheriff’s phone numbers, and whilst still talking to the
appellant’s sister, the appellant
jumped over the gate showing
that he was now fighting. They then moved backwards and run away
going separate ways. The second respondent
ran up to the mayor’s
house which is next to the sheriff’s office.
[28]
The appellant was running after the first respondent. The appellant
could not catch the first respondent,
and the appellant took out his
firearm but quickly put it back. The appellant stopped chasing the
first respondent, and the first
respondent also stopped running and
started laughing and he does not know why the first respondent was
laughing. Then the second
respondent heard the appellant saying “
jou
klein kaffir, ek gaan hulle kry jou klein kaffir.”
The
appellant then decided to go back to the sheriff’s office. As
the appellant was walking back to the sheriff’s office,
the
first respondent told the second respondent to be careful as the
appellant was in possession of a firearm. The appellant walked
past
the second respondent and went back to the sheriff’s office.
[29]
After that the respondents went to the police station to open a
criminal case against the appellant. The
second respondent stated
that he was not the complainant but the witness of the first
respondent. That he was not present when
the charge against the
appellant was drawn, and that at the criminal trial he had testified
as a witness. That he does not know
how the criminal matters works,
and could not tell whether he was the complainant, but that at the
criminal trial he was called
as a witness. He denied that he had told
the investigating officer that he was pointed with a firearm, and
further that the appellant
could not have pointed him with a firearm
as he not chasing him. That he took it that he was called a little
kaffir as he was also
involved with the first respondent in that
scenario. That he was seriously affected by the whole incident, and
his dignity was
impaired as he did not expect that from the sheriff’s
office. He was employed as a traffic officer since 2007 and has been
working with both black and white officers.
[30]
The second respondent was cross examined and he stated that he did
not know what charge was the appellant
facing and also did not draft
the charge sheet. He stood by his earlier statement that the
appellant could not have pointed him
with a firearm as he was not
chasing him. The second respondent stated that the person who wrote
his statement that the appellant
had pointed him with a firearm will
have to explain that as that is not what he had told him. The second
respondent stated that
he had told the police officer who took his
statement that the appellant chased them and took out a firearm. The
second respondent
stated that the appellant had pulled out his
firearm before he stopped chasing the first respondent.
[31]
The second respondent stated that the appellant referred to the first
respondent as a klein kaffir as there
was a quarrel. The second
respondent conceded that the appellant did not chase him or try to
catch him. It was put to the second
respondent that the appellant had
chased the first respondent as the first respondent was tempting and
victimizing the appellant.
[32]
It is trite that the requirements for a plaintiff to succeed with a
claim for malicious prosecution, are
that he/she must allege and
prove that the defendants have (i) set the law in motion, ie
instigated or instituted the proceedings;
(ii) acted without
reasonable and probable cause; (iii) acted with malice (or
animo
iniurandi
) that is the intention to injure the plaintiff; and
(iv) that the prosecution has failed.
[33]
In
Reylant
Trading (Pty) Ltd v Shongwe
[1]
Malan AJA said:
“
The
requirement for malicious arrest and prosecution that the arrest and
prosecution be instituted ‘in the absence of reasonable
and
probable cause’ was explained in Beckenstrater v Rottecher and
Theunissen as follows:
‘
When it
is alleged that the defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if despite
his having such information, the defendant is shown not to have
believed in the plaintiff’s guilt, a subjective element comes
into play and disproves the existence, for the defendant, of a
reasonable and probable cause.’
It follows that a
defendant will not be liable if he or she held a genuine belief
founded on reasonable grounds in the plaintiff’s
guilt. Where a
reasonable and probable cause for an arrest or prosecution exists the
conduct of the defendant instigating it is
not wrongful. The
requirements of reasonableness and probable cause is a sensible one:
‘For it is of importance to the community
that the persons who
have reasonable and probable cause for the prosecution should not be
deterred from setting the criminal law
in motion against those whom
they believe to have committed offences, even if in so doing they are
actuated by indirect and improper
motives.”
[34]
The appellant has managed to prove the first and fourth requirements,
what must also be determined is whether
the second and third
requirements have been met. In
C
v C and Others
[2]
Cachalia JA said:
“
[39]
Reasonable and probable cause means an honest belief founded on
reasonable grounds that the prosecution was justified. This
imports
both an objective element (reasonable grounds) and a subjective
element (honest belief).
Amino iniuriandi
in this sense means that the defendant, aware that no reasonable
grounds for the prosecution exist, nonetheless initiates the
proceedings. If reasonable grounds are absent but defendant honestly
believes that the plaintiff is guilty or that there are reasonable
grounds, wrongfulness is lacking. This would occur in the event of a
mistake on the part of the defendant.
[40] The onus to
prove these requirements rest on the plaintiff. Where the defendant
is proved to have initiated a prosecution without
reasonable grounds,
it does not follow that she acted dishonestly, nor does it
necessarily imply that she did so
animo
iniuriandi
. However, in the absence of any
other evidence the natural inference is that the plaintiff has
established both. The defendant
thus bears the evidential burden to
rebut this inference regarding her state of mind, including any
mistake that would exclude
her liability.”
[35]
It is not in dispute that on 1
st
September 2016 the
respondents were at the sheriff’s office during lunch time.
Whilst the respondents were at the sheriff’s
office, an
arguments ensued between the respondents and the appellant regarding
their presence at the sheriff’s office during
lunch time when
the office was closed. That argument became heated to the extent that
the appellant had to chase the first respondent
down the street.
According to the appellant he chased the first respondent down the
street as the first respondent persisted to
provoke and taunt him.
The appellant saw the first respondent as the main instigator.
[36]
When calm was restored, the first respondent opened a criminal case
against the appellant on the same date
of the incident. The first
respondent in his written statement to the police has stated that
whilst they were at the gate, the
appellant took out a firearm and
pointed them with it and they ran away. The appellant followed them
as they were running away
and in the process told the first
respondent that “
I will find you klein kaffir
.”
[37]
The second respondent in his written statement to the police has
stated that as they were arguing with the
appellant at the gate, the
appellant jumped over the gate and they ran away in different
directions. The appellant ran after the
first respondent, and in the
process of chasing the first respondent took out a firearm and
pointed it at them, but no shot was
made. Thereafter the appellant
uttered the following words to the first respondent: “
I will
get you klein kaffir
.”
[38]
The following day the first respondent wrote an email to the sheriff
relating to the sheriff what transpired
the previous day. In that
email the first respondent has stated that the appellant has told
them that they must go away as they
were trespassing. Thereafter the
appellant jumped over the gate pulled out his pistol, and they ran
away taking different directions.
As the appellant was chasing the
first respondent he said: “
ek sal you kry klein kaffir
.”
The first respondent notified the sheriff that they have opened a
criminal case against the appellant, and that they intend
taking
legal action against the appellant for
crimen injuria
.
[39]
The appellant in his warning statement has stated that he will give
his statement through his attorney. In
his written statement through
his attorney, the appellant has stated that the first respondent had
persisted to provoke and taunt
him. As a result of that the appellant
opened the gate and chased the first respondent down the street. That
the chase ended when
the first respondent laughed at the appellant
and shouting to other people to look and witness the appellant
hitting at him. The
appellant denied hitting or pointing at the first
respondent with a firearm.
[40]
The respondents in their written statements to the police have
contradicted each other as to when the appellant
allegedly pointed
the first respondent with a firearm. The email addressed to the
sheriff by the first respondent also contradict
the respondents
written statements to the police. However, with the written statement
of the second respondent, he has stated that
they ran away and took
different directions, and the appellant ran after the first
respondent. Thereafter the appellant took out
a firearm and pointed
it at them. The question is if the respondents have taken different
directions, how was it possible for the
appellant to have pointed
them with a firearm at the same time. The police officer who was
taking the respondents’ written
statements might have not
captured the respondents’ narration of the events correctly.
The prosecutor who drafted the charge
sheet did not engage this
impossibility before drafting the charge sheet.
[41]
The respondents in court disputed having told the police officer who
took their statements that they have
told him that the appellant had
pointed the first respondent with a firearm. In my view, the issue of
the firearm has been clarified
by the first respondent in his email
to the sheriff. In that email the first respondent is merely stating
that the appellant had
pulled out a firearm. In court he testified
that he saw the appellant putting back the firearm back into the
holster. In the email
addressed to the sheriff, the first respondent
seems to be pursuing the alleged
crimen injuria
only. The
police statement even though was read back to the first respondent,
was not written by him. However, the email was written
by the first
respondent himself, and in my view, is more credible than the police
statement, as when he wrote that email he had
more time to reflect on
it.
[42]
The purpose of the written statement to the police is to obtain the
details of an offence, so that it could
be decided whether a
prosecution should be instituted against the suspect. (See
S
v Bruiners and Another
[3]
).
In other words’ the written police statement is the basis for
the police to investigate the complaint by the complainant,
and
thereafter be able to form a reasonable suspicion whether to arrest
the suspect or not. When investigations are complete, the
docket will
be handed over to the prosecuting authority to determine whether the
accused should be prosecuted. Should the prosecution
decide to
prosecute the accused, it is up to the prosecution which charges to
formulate against the accused, and the complainant
plays no role in
that process.
[43]
According to the appellant’s version he was inside the yard
with the gate closed and locked when he
was taunted and provoked by
the first respondent. That led him to unlock the gate, get out of the
yard and gave chase to the first
respondent. The appellant was safe
in the yard with the gate locked. He could not have unlocked the gate
and decided to give chase
to the first respondent just for fun. That
shows that he was pushed to the limit and was so angry with the first
respondent and
just wanted to have him in his hands and deal with him
accordingly. However, he could not catch the first respondent and
that could
have frustrated him, and ended up uttering the words as
testified by the respondents to the first respondent.
[44]
There was a basis for the respondents to have laid a complaint with
the police. After that it was up to the
police to investigate the
complaint, and when they were satisfied with their investigations, to
present the docket to prosecution
to decide whether to prosecute or
not, and which charges to formulate against the appellant. It is
trite that the offence of assault
can be committed even where there
is no physical harm, but where there is a threat of immediate
personal violence in circumstances
that lead the person threatened
reasonably to believe that the other intends and has the power
immediately to carry out the threat.
(See
R
v Gondo
[4]
).
The first respondent has testified that he ran for his life as he
felt threatened by the appellant who was having a firearm when
the
appellant jumped over the gate, and did not know what the appellant
was going to do with the firearm. The first respondent
believed that
the appellant was going to harm him, hence he ran for his life. The
appellant himself testified that he unlocked
the gate and gave chase
on the first respondent. By getting out of the locked yard and giving
chase to the first respondent whilst
angry, the appellant’s
actions constituted immediate personal violence on the first
respondent.
[45]
From the appellant’s own version in his police statement, a
charge of assault could have also been
formulated against the
appellant. There was therefore a reasonable and probable cause for an
arrest and prosecution of the appellant.
It was up to the prosecution
how they formulate a charge which they think will be sustained in
court, and the respondents were
not involved in that. It can
therefore not be said that the first respondent has acted without
reasonable and probable cause, and
with malice when he opened a
criminal case against the appellant. The second respondent was not a
complainant but a witness of
the first respondent.
[46]
The first respondent was 44 years old whilst the appellant was 27
years’ old. The appellant was 17
years younger than the first
respondent. The word “kaffir” has racial connotations and
it belongs in the past, and
had the potential to open old wounds of
the past. It was most degrading and humiliating to be referred to as
young kaffir and also
by a person 17 years younger to the first
respondent. I do not find any reason to fault the judgment and order
of the court a quo.
The appeal therefore stands to fail.
[47]
In the result I make the following order:
47.1 The appeal is
dismissed with costs
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
AGREE
MULLER
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the appellant
:
Adv AC Diamond
Instructed
by
:
Gerrie Raubenheimer attorneys
Counsel
for the respondents
:
Adv K Mokwena
Instructed
by
:
SJ Pienaar attorneys
Date
heard
:
22
nd
July 2022
Electronically
circulated on
:
10
th
August 2022
[1]
[2006]
ZASCA 162
; [2007] 1 AII SA 375 (SCA) (26 September 2006) at para 14
[2]
[2021]
ZASCA 12
(3 February 2021) at paras 39 and 40
[3]
1998
(2) SACR 432 (C)
[4]
1970
(2) SA 306
(R)