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[2008] ZASCA 17
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Raliphaswa v Mugivhi and Other (236/2007) [2008] ZASCA 17; [2008] 3 All SA 92 (SCA); 2008 (4) SA 154 (SCA) (27 March 2008)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 236/2007
Reportable
In
the matter between:
THINANDAVHA GERSON RALIPHASWA
...
Appellant
and
TSHAMMBENGWA THOMAS MUGIVHI
...
1
st
Respondent
M M CHIBAMBU
...
2
nd
Respondent
MINISTER OF SAFETY AND SECURITY
...
3
rd
Respondent
Coram:
CAMERON,
COMBRINCK JJA and SNYDERS AJA
Heard:
12
MARCH 2008
Delivered:
27
MARCH 2008
Summary:
Damages
for iniuria ─ defamation and unauthorised, invasive search
during which appellant was indecently assaulted ─
when adverse
inference for failure to call witness not justified.
Neutral Citation:
This
judgment may be referred to as
Raliphaswa
v Mugivhi
(236/2007)
[2008]
ZASCA 17
(27 March 2008)
J
U D G M E N T
SNYDERS AJA/
SNYDERS AJA:
[
1] The
appellant was unsuccessful before Hetisani J in the Thohoyandou High
Court with a claim for damages based on defamation and
indecent
assault and was ordered to pay the respondents’ costs on an
attorney and client scale. It is with the leave of
this court that
he appeals.
[
2] The
appellant pleaded that the first and second respondents defamed him
by addressing him as ‘tsotsi’ and injuriously
humiliated
and degraded him by ‘pulling his private parts’ during a
search. The respondents limited their defence
to a denial of these
allegations.
[
3] The
first and second respondents are members of the South African Police
Service (SAPS) in the Thohoyandou district. The third
respondent is
the Minister of Safety and Security whose vicarious liability, in the
event of a successful claim, is common cause.
Merely for the sake of
convenience I refer henceforth in this judgment to the first and
second respondents as ‘the respondents’.
[
4] On
28 April 2003 at approximately 10:00 the appellant, according to his
evidence, was driving his car, accompanied by Mr Khakhu,
along a
gravel road past an informal market in Itsani. On the road were
humps designed to reduce the speed of passing traffic,
apparently
constructed by the traders from the market. The appellant regarded
these as dangerous to motorists because of their
height. He stopped
to suggest to the traders that the size of the humps be reduced.
[
5] Whilst
they were having an amiable discussion about the humps the
respondents and two police reservists arrived in a white Golf.
The
first respondent, the driver, stopped in front of the appellant’s
vehicle, nose to nose, about five paces away.
[
6] There
are material disputes about the events that followed. I deal with
the appellant’s evidence first. He testified
that the
respondents summoned him by addressing him as ‘tsotsi’
and gesticulated with their fingers for him to come
to them. They
said they wanted to search him. He did not approach them but asked
whether they were addressing him. The respondents
confirmed and
again addressed him as ‘tsotsi’.
[
7] The
respondents reached the appellant and insisted on searching him. He
asked to see their appointment cards and a search warrant,
both of
which they failed to produce. Both then took him by the belt around
his waist, one in front and one at the back, and lifted
him off the
ground. They proceeded to search him and the policemen to his front
touched his private parts to the extent that the
appellant asked,
‘why are you holding me by my private parts?’. After the
search one of the unidentified police reservists
accompanying the
respondents stepped forward and berated the respondents for what they
had done to the appellant. Khakhu materially
corroborated the
appellant’s version except for one aspect to which I will
return.
[
8] It
is common cause that immediately after this incident the appellant
went to the police station where he ascertained the names
of the
respondents. He laid a charge against them, but the case was never
prosecuted. He could not ascertain the name of the
‘good
Samaritan’ reservist, because the police refused to give it to
him.
[
9] Although
the respondents denied that they addressed the appellant as ‘tsotsi’
or searched him, they confirmed that
there was a disturbance
involving them and the appellant. Aspects of the respondents’
version, and the probabilities arising
from it, strongly support the
appellant’s version.
[
10] This
brings me to the respondents’ version. They were assigned
search and patrol duties for the day. Their attention
was drawn to
the appellant because he did not park to the side of the road.
Tshivhambu, the passenger, who was the second respondent,
approached
the appellant and asked permission to search him. The appellant
refused. Mughivi, the driver, gave the improbable
version that after
he produced his appointment card and the appellant had written down
details from it, the appellant demanded
to be searched. They did not
give in to his demand because of his earlier refusal, but confined
themselves to a search of the
boot of the appellant’s vehicle,
conducted by Tshivhambu. This they did because the appellant’s
noisy reaction to
the request to be searched caused them to suspect
that he was hiding something. The search revealed nothing.
[
11] This
evidence gives rise to the probability that the respondents did
search the appellant consistent with their duties and suspicion,
which was unfounded.
[
12] Mugivhi
did not hear the initial exchange between the appellant and
Tshivhambu, but denied that he heard Tshivhambu calling
the appellant
a ‘tsotsi’. Tshivhambu on the other hand, testified that
the appellant snatched Mugivhi’s appointment
card and said, ‘It
is not true that you are on duty, you are a tsotsi’.
Tshivhambu, the last witness of four in the
trial, asserted for the
first time during his evidence that it was in fact the appellant who
used the word ‘tsotsi’.
This belated disclosure
fundamentally eroded the respondents’ denial of the appellant’s
version. It supports the
appellant’s version that the word
‘tsotsi’ was used and strips the policemen’s denial
of any reliability.
[
13] Generally
the respondents’ evidence contains numerous contradictions,
evasive answers and improbabilities. There is no
need to deal with
the detail thereof in the light of the conclusion reached above on
the two major factual issues.
[
14] Khakhu
corroborated the appellant’s evidence in material respects. He
differed in that he said Tshivhambu put his hand
inside the
appellant’s pants when he held his private parts. It seems
Khakhu was simply exaggerating. It does not detract
from the
reliability of the appellant’s version and it was also not
argued on behalf of the respondents that this is a material
contradiction in the appellant’s case.
[
15] In
this court the respondents persisted with the argument that the court
below was justified in drawing an adverse inference
against the
appellant from the failure to present the evidence of the sympathetic
reservist who berated the respondents. The appellant’s
uncontradicted evidence was that he did not know the identity of this
reservist and, despite his request, the police refused to
disclose it
to him. The appellant took a grave risk to allege that this
reservist berated the respondents as they were colleagues
and could
easily have called him to contradict the appellant. The question may
well be asked why they did not. When a witness
is equally available
to both parties, but not called to give evidence, it is logically
possible to draw an adverse inference against
both.
1
The party on whom the onus rests has no greater obligation to call a
witness, but may find that a failure to call a witness creates
the
risk of the onus proving decisive.
2
In the present matter the appellant did not have an opportunity
equal to the respondents to call this witness. The adverse inference
drawn by the trial court against the appellant was unjustified in the
circumstances. An adverse inference in any event does not
operate to
destroy a case otherwise proved, which is what the appellant managed
to do.
3
[
16] The
respondents called the appellant a ‘tsotsi’. The
appellant pleaded that ‘tsotsi’ means ‘dishonest
person’.
4
This meaning was not denied in the respondents’ plea. The
appellant confirmed this meaning during his evidence and although
it
was put to him that there are different meanings to this word, these
suggestions were never pleaded or developed as a defence.
No doubt,
to be called a ‘dishonest person’ is defamatory as it
would tend to lower the appellant in the estimation
of right-thinking
members of society generally.
5
Khakhu heard the defamatory words. Although the evidence does not
establish the extent of the publication of the defamation, it
seems
inevitable, considering the circumstances in which the words were
uttered, that some publication took place. It was common
cause that
the incident happened in public, within earshot and full view of
traders, customers and passers-by. The appellant’s
evidence
that the fracas aroused interest amongst people in the vicinity was
not challenged or denied.
[
17] Once
the defamatory nature of the words used has been established it is
presumed to have occurred intentionally and unlawfully
which
presumption gives rise to an evidentiary burden on the respondents to
establish some lawful justification or excuse.
6
Because of the nature of the respondents’ defence, a bare
denial, no evidence was adduced to rebut the presumption.
[
18] The
appellant was subjected to an invasive and humiliating search. This
amounted to an iniuria. In addition, it was done without
probable
cause. Some remarks about that is required, particularly since
respondent’s counsel submitted that a search on
mere suspicion
was justified. Mugivhi testified that he knew that they were not
entitled to search a person without a reasonable
suspicion. The only
facts advanced to attempt to justify the search were that the
appellant did not stop his car to the side of
the road and he made a
lot of noise once confronted by the respondents. Having been called
a ‘tsotsi’ this was perfectly
understandable.
[
19] In
the absence of consent or a search warrant members of the SAPS are
entitled to search an individual only in circumstances
authorised by
s 22(b) of the Criminal Procedure Act 51 of 1977 (CPA), namely when
it is believed, on reasonable grounds, that a
warrant will be issued
if applied for and that the delay in applying for a warrant would
defeat the object of the search.
7
These provisions were designed to protect rights to privacy against
abuse of power by members of the SAPS. Even when a search
is
justified it shall, in terms of s 29 of the CPA ‘be conducted
with strict regard to decency and order’.
[
20] The
appellant is the sheriff of the magistrate’s court for the
district of Thohoyandou and as such is a prominent and
respected
member of the local community. He has held this position since 2000.
He has also been the elected chairman of the Community
Police Forum
8
of Itsani since 1996. During 1996 he was a member of the executive
of the local Civic Association and since then has remained
involved
in an advisory capacity. He is a member of the International
Pentecostal Church. From 1990 until 2000 he was a politician.
During that time he held the position of coordinator of the National
Party for the Limpopo Province. Prior to 1990 he was a clerk
employed by the former Department of Works. He is a qualified
teacher and had occasion to practise that profession earlier in
his
career.
[
21] An
award of damages involves an assessment of a just and fair
compensation in the circumstances to assuage the appellant’s
wounded reputation and feelings. In making that assessment I have
consulted past awards, though mindful that no two cases are
ever the
same.
9
The appellant is a man of standing in the community. Although he
was defamed there is no evidence to suggest a vast impact on
his
reputation. No apology was ever forthcoming. The two incidents, the
defamation and the iniuria, occurred at the same time.
He was
humiliated in public. Without underestimating what the appellant had
suffered, it is not one of the more serious cases
of injuria. In the
circumstances a just and fair award for both the defamation and the
indecent search would be the amount of
R25 000,00.
[
22] This
award falls within the ambit of the magistrate’s court
jurisdiction. Bearing in mind that the appellant is an officer
of
the court, he was entitled to approach the high court. I should add
that the high court’s order that the appellant should
pay the
costs on an attorney and client scale gives rise to concern. Not
only did the Judge make no effort to support this award
with any
reasons, the record itself was entirely bare of justification for it.
[
23] I
grant the following order:
(1) The
appeal succeeds with costs
(2) The order of
the court below is replaced by the following order:
‘
The
respondents are ordered, jointly and severally, to pay to the
appellant:
(a)
the
amount of R25 000;
(b)
interest
on the amount of R25 000 at the rate of 15,5% from date of judgment
to date of final payment;
(c)
costs
of suit.’
______________________
S SNYDERS
ACTING JUDGE OF APPEAL
AGREE:
CAMERON JA
COMBRINCK
JA
1
Webranchek v L
K Jacobs & Co Ltd
1948 (4) SA 671 (A) 681-682.
2
Brand v
Minister of Justice
1959 (4) SA 712
(A) 715F-716F.
3
Brand
above
at 716F.
4
The
Concise
Oxford English Dictionary
2002 defines ‘tsotsi’ as ‘a young black urban
criminal’, an even stronger meaning than the appellant
relied
upon.
5
Independent
Newspapers Holdings Ltd v Suliman
[2004] 3 All SA 137
(SCA) 152h-153g.
6
National Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA) 1215B-I
.
7
Section 22: ‘A
police official may without a search warrant search any person or
container or premises for the purpose
of seizing any article
referred to in section 20 –
(a)
if the person concerned consents to the search for and the seizure
of the article in question, or if the person who may consent
to the
search of the container or premises consents to such search and the
seizure of the article in question; or
(b)
if he on reasonable grounds believes –
(i)
that a search warrant will be issued to him under paragraph (a) of
section 21(1) if he applies for such warrant; and
(ii)
that the delay in obtaining such warrant would defeat the object of
the search.’
Section
21(1): ‘Subject to the provisions of sections 22, 24 and 25,
an article referred to in section 20 shall be seized
only by virtue
of a search warrant issued –
(a)by
a magistrate or justice, if it appears to such magistrate or justice
from information on oath that there are reasonable
grounds for
believing that any such article is in the possession or under the
control of or upon any person or upon or at any
premises within his
area of jurisdiction;’.
These
provisions should further be read with
s 13(1)
of the
South African
Police Service Act 68 of 1995
which provides: ‘Subject to the
Constitution and with due regard to the fundamental rights of every
person, a member may
exercise such powers and shall perform such
duties and functions as are by law conferred on or assigned to a
police official.”
8
Established by the
South African Police Service Act 68 of 1995
.
9
Some of the cases
considered in making an appropriate award are:
Raubenheimer
v Greeff
1975 (3) SA 237
(C);
Udwin
v May
1978 (4) SA 967
(C);
De
Flamingh v Pakendorf; De Flamingh v Lake
1979 (3) SA 676
(T);
SA
Associated Newspapers Ltd v Samuels
1980 (1) SA 25
(A);
Kritzinger
v Perskorporasie van Suid-Afrika (Edms) Bpk
1981 (2) SA 373
(O);
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA).