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[2019] ZAECMHC 63
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Matshabane v Minister of Police and Another (967/2015; CA99/2018) [2019] ZAECMHC 63 (4 October 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO. 967/2015
APPEAL
CASE: CA 99/2018
REPORTABLE
In
the matter between:
ZANELE
MATSHABANE
Appellant
and
MINISTER
OF
POLICE
1
st
Respondent
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
2
nd
Respondent
JUDGMENT
DA
SILVA AJ:
INTRODUCTION
[1]
On 5 September 2014, the appellant, together with her late boyfriend
Gcinibandla
Nelson Gabayi (“
Gabayi
”), were
arrested by members of the South African Police Service (“
the
Service
”) at Madeira Police Station and detained at Central
Police Station until 8 September 2014. The appellant and Gabayi were
charged by the police for malicious damage to property, assault by
threats and
crimen inuria
. The appellant and Gabayi made their
first court appearance at the Mthatha Regional Court on 08 September
2014 and were granted
bail. They were released on 09 September 2014.
Following the arrest and detention aforementioned, the appellant and
Gabayi were
prosecuted in the Regional Court in Mthatha for malicious
injury to property, assault with intent to do grievous bodily harm
and
crimen inuria
. The appellant and Gabayi were acquitted of
all charges.
[2]
The appellant and Gabayi issued individual summons in the High Court.
The above are the common cause facts pleaded by the appellant and
Gabayi in their respective particulars of claim, which facts have
not
been denied by the respondents.
[3]
In addition to the above, the appellant and Gabayi also pleaded that:
3.1
The arrest and detention were unlawful.
3.2
During the arrest, the appellant and Gabayi were unlawfully assaulted
by members
of the Service resulting in various bodily injuries and a
miscarriage of the appellant’s foetus.
3.3
The prosecution, for which the appellant holds both respondents
liable, was
without reasonable and probable cause and actuated by
malice.
[4]
The appellant was substituted for Gabayi who had passed away after
the
close of pleadings. During the trial members of the Service,
namely Captain Mpanzela and Warrant Officer Wesi testified followed
by Mr. Mbeleki (the prosecutor), in support of the respondents’
case. Thereafter the plaintiff testified in support of her
claims and
that of Gabayi for unlawful arrest and detention and assault. She
testified on her behalf for malicious prosecution.
Dr. Mntonintshi
testified in support of the appellant’s and Gabayi’s
claims for assault.
JUDGMENT
OF THE COURT
A QUO
[5]
After hearing the evidence, the Court
a quo
dismissed the
appellant’s and Gabayi’s claims for assault. The Court
a
quo
also dismissed the appellant’s claim for malicious
prosecution. The Court
a quo
found the first respondent liable
for their claims for unlawful arrest and detention. The reasons for
the judgment, insofar as they
are relevant to this appeal, appear
from the body of this judgment. The first respondent was ordered to
pay 50% of the appellant’s
and Gabayi’s costs of suit in
respect of the determination of the merits of their claim, inclusive
of the filing of supplementary
heads of argument.
NOTICE
OF APPEAL
[6]
The appellant has appealed against the judgment of the Court
a quo
on various grounds. These grounds are summarized as follows:
6.1
The Court
a quo
erred in the evaluation of and in disregarding
the evidence of Dr. Mntonintshi –
6.1.1
as the doctor’s evidence was not intended to prove the actual
act of assault but served as mere corroboration
that the assault took
place;
6.1.2
as the Court
a quo
ignored the gist of the doctor’s
evidence and focused on whether the doctor’s evidence
established the cause for blood
shot eyes as if that was the only
issue or the only injuries sustained in the assault; and
6.1.3
on the basis of the criticism that he never testified during the
criminal trial was baseless and without
merit.
6.2
The Court
a quo
erred in finding that the appellant’s
version was fraught with discrepancies and no support could be found
for Gabayi’s
claim in the appellant’s version. The Court
further erred in finding that appellant had not discharged the onus
resting on
her to establish that she and the deceased had in fact
been assaulted. The Court
a quo
should not have adopted a
piecemeal evaluation of the evidence and it failed to evaluate the
evidence holistically insofar as Gabayi’s
(the deceased) claim
was concerned.
6.3
The Court
a quo
, whilst accepting that there was no evidence
to implicate the appellant in the charges of malicious injury to
property, failed
to find that there was malice on the part of the
first respondent when instigating criminal charges against the
appellant.
6.4
The Court
a quo
adopted an approach that the appellant was
under an obligation to prove malice outside the non-existence of a
reasonable and probable
cause for the prosecution and the persistence
by the first respondent with charges. In short, the Court
a quo
failed to establish that malice could be established from the
objective facts and that it is a legal conclusion rather than a
factual one.
6.5
The Court
a quo
erred in not finding that the first respondent
was liable for malicious prosecution of the appellant.
6.6
Regard being had to the fact that the prosecutor (Mbeleki) had
conceded that
there was no evidence against the appellant herself in
respect of the charge for malicious injury to property, the Court
a
quo
erred in not finding that the second respondent was liable
for malicious prosecution.
CONDONATION
[7]
At the hearing of the appeal, the appellant sought condonation for
the
late filing of the heads of argument. The application for
condonation was not opposed.
[8]
Having satisfied ourselves that the appellant had shown good cause,
condonation
was indeed granted.
[9]
Nothing further needs be said in this regard.
ASSAULT
[10]
I now turn to deal with the appellant’s claim for assault.
[11]
An assault
violates a person’s bodily integrity. Every infringement of the
bodily integrity of another is
prima
facie
unlawful. Accordingly, an allegation of “
assault
”
implies wrongfulness.
[1]
[12]
It is for
the plaintiff to allege and prove the fact of physical interference.
Accordingly, the plaintiff must allege and prove
facts which
prima
facie
and objectively indicate an assault.
[2]
[13]
In support of her claim for assault, the appellant testified in chief
that:
13.1
The appellant met Mpanzela from whom she and Gabayi asked for shelter
in the Madeira Police Station.
Mpanzela agreed to them joining other
persons in the passage close to the charge office. At some stage the
appellant went to the
toilet which she found opened and without a
latch. Thereafter upon her return to the passage, Gabayi also went to
the toilet.
13.2
The appellant heard Mpanzela accusing Gabayi of burglary. When she
attempted to intervene, Mpanzela
struck her. Thereafter two other
police officers, which included Wesi arrived and assaulted her and
Gabayi. They were both kicked
with booted feet and sprayed with
pepper spray in their eyes.
13.3
The appellant and Gabayi then ran out of the police station to the
other side of Madeira Street
but returned to apologize. When they
came back, Wesi sprayed them both with pepper spray. After 03h00 they
were handcuffed and
taken to Central Police Station.
13.4
The appellant and Gabayi were taken to Court on Monday, 8 September
2014 when they were granted
bail of R1 000.00 each.
13.5
They were however released on 9 September 2014 whereafter they
immediately consulted a doctor
(Mntonintshi) to whom they narrated
the events of the assault. After a period of two days the appellant
suffered a miscarriage.
[14]
Under cross-examination, it was put to the appellant that her
evidence in chief was inconsistent
with what she had testified in the
Regional Court during the criminal trial in the following regards:
14.1
In the Regional Court, the appellant had testified that she and
Gabayi had asked for shelter
from a female police officer who had
agreed that they could obtain shelter at the police station. In the
High Court the appellant
testified that they had asked for shelter
from Mpanzela.
14.2
In the High Court the appellant testified that there were 15 people
who were receiving shelter
in the passage on the night in question.
In the Regional Court she had testified that there were 4 people.
14.3
In the High Court the appellant testified that Mpanzela gave her
permission to go to the toilet.
However, in the Regional Court she
testified that she had trespassed to a place where she had not been
given permission to go.
14.4
In the High Court she testified that Gabayi went to the toilet alone
after she had returned from
the toilet. However, in the Regional
Court, she testified that she had accompanied Gabayi to the toilet.
14.5
Another inconsistency that was pointed out to her was that she
testified in chief about a miscarriage.
However, both Mntonintshi and
the doctors at the Hospital wrote that she had suffered an abortion.
14.6
In the Regional Court, the appellant testified that the commotion
between her, Gabayi and Mpanzela
happened next to charge office.
However, in the High Court, she testified that the commotion happened
in the passage next to office
no. 18.
14.7
It was also put to her that at no stage during her incarceration did
she ask to see a doctor.
[15]
In respect of the aforementioned inconsistencies, the appellant did
not proffer a credible
version for why the record of the Regional
Court differed from her version in the High Court. All she said was
that the recording
in the Regional Court was wrong and not a correct
reflection of the evidence she had given notwithstanding the fact
that the transcript
was obtained by her attorney and used when
questioning the witnesses of the first respondent.
[16]
Dr. Mntonintshi also testified in support of the claim for assault.
His evidence was a
summation of injuries sustained by the appellant
and Gabayi. He observed that the appellant had reddened eyes but did
not conduct
tests to determine the cause of the redness. He agreed
that doom could have caused the redness as much as pepper spray and
soap.
He however could not give an age of the bruises other than to
say that they were “
fresh
”.
[17]
Mpanzela denied that he assaulted the appellant and Gabayi. In fact,
his evidence was to
the effect that Gabayi assaulted him and then the
appellant also joined in assaulting Mpanzela. Mpanzela was saved by
Wesi and
Mbangata, both members of the Service. Wesi denied that he
ever pepper sprayed the appellant and Gabayi especially since he did
not possess any pepper spray.
[18]
It is clear that the versions of the appellant differed materially
from that of the members
of the Service. In fact, they were mutually
destructive.
[19]
Only
one of these conflicting versions can be correct. The onus is on the
appellant to prove that her version is the truth. In order
to
discharge this onus, the appellant must show by credible evidence
that her version is more probable and acceptable than that
of the
members of the Service. In these circumstances what was said in
National
Employers’ General Insurance Co Ltd v Jagers
[3]
is apposite:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily 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 a criminal case, 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.”
[20]
The Court
a quo
found the appellant’s version to be
fraught with discrepancies and concluded that she was clearly not a
credible witness.
The Court
a quo
also found that the
discrepancies impacted adversely on the credibility of the appellant
and on the issue of whether or not her
version is more probable than
that of the respondents’ witnesses who alleged that there was
an altercation not an assault.
It could only have been on this basis
that the Court
a quo
rejected the appellant’s version
and also found that the appellant’s version could not support
Gabayi’s claim
for assault.
[21]
The Court
a quo
also found that Dr. Mntonintshi’s
evidence was based on what he was told was the cause of the injuries
as he had no direct
knowledge nor did he do any independent tests to
establish the cause of the blood shot eyes. As such, the Court
a
quo
found the evidence of the doctor did not assist to establish
that the appellant and Gabayi were assaulted by the members of the
Service.
[22]
The question is whether this Court can interfere, on appeal, with the
factual findings,
including the credibility findings, of the Court
a
quo
.
[23]
In
Makate
v Vodacom Ltd
[4]
it was held that appeal courts are generally reluctant to interfere
with factual findings made by trial courts, more particularly
if the
factual findings depended upon the credibility of the witnesses who
testified at the trial.
[5]
It,
however, cautioned that:
“
(E)ven
in the appeal the deference afforded to a trial court's credibility
findings must not be overstated. If it emerges from the
record that
the trial court misdirected itself on the facts or that it came to a
wrong conclusion, the appellate court is duty-bound
to overrule
factual findings of the trial court so as to do justice to the case.
In
Bernert
this court affirmed:
‘
What
must be stressed here, is the point that has been repeatedly made.
The principle that an appellate court will not ordinarily
interfere
with a factual finding by a trial court is not an inflexible rule. It
is a recognition of the advantages that the trial
court enjoys, which
the appellate court does not. These advantages flow from observing
and hearing witnesses as opposed to reading
the cold printed word.
The main advantage being the opportunity to observe the demeanour of
the witnesses. But this rule of practice
should not be used to tie
the hands of appellate courts. It should be used to assist, and not
to hamper, an appellate court to
do justice to the case before it.
Thus, where there is a misdirection on the facts by the trial court,
the appellate court is entitled
to disregard the findings on facts,
and come to its own conclusion on the facts as they appear on the
record. Similarly, where
the appellate court is convinced that the
conclusion reached by the trial court is clearly wrong, it will
reverse it.’”
[24]
Regard being had to the discrepancies in the appellant’s
version, as referred to
above, I am of the view that the Court
a
quo
did not misdirect itself on the facts and neither did it
arrive at a wrong conclusion that the appellant had not proved that
she
and Gabayi had been assaulted. The discrepancies, which are
material in nature and which are referred to above, clearly show that
the appellant was not a credible witness.
[25]
Indeed, the Court
a quo
does not list the discrepancies with
the appellant’s version in respect of the claim for assault.
However, when regard is
had to the record of the appellant’s
evidence, as adumbrated in paragraphs [13] – [15] above, I am
not persuaded that
the appellant was a credible witness.
[26]
I am also of the view that Dr. Mntonintshi’s evidence was based
on what he was told
was the cause of the injuries. He was not in a
position to establish the age of the injuries nor the cause of the
blood shot eyes.
[27]
Absent evidence on the age of the injuries and the cause of the blood
shot eyes, read together
with the lack of credibility of the
appellant’s version, I am of the view that the appellant has
not discharged the onus
of proving that her version is more probable
than that of the first respondent relating to the alleged assault on
her and Gabayi.
[28]
In the result, I am of the view that the Court
a quo’s
findings that the appellant had not discharged the onus of proving
that she and Gabayi were assaulted by the members of the Service
are
unassailable.
MALICIOUS
PROSECUTION
[29]
To succeed
in a claim for malicious prosecution, a claimant must allege and
prove that
[6]
:
(a)
the defendants set the law in motion – they instigated or
instituted
the proceedings
(b)
the defendants acted without reasonable and probable cause;
(c)
the defendants acted with malice – that is, with the intention
to
injure the plaintiff; and
(d)
the prosecution failed.
[30]
It is not in dispute in this matter that
Mpanzela preferred charges against the appellant that resulted in the
National Prosecuting
Authority instituting the criminal prosecution
against her and that those proceedings terminated in her favour. What
the appellant
is challenging is the Court
a
quo’s
finding that there was
reasonable and probable cause for the prosecution and that the
respondents acted without malice. Counsel
for the appellant submitted
that the Court
a quo
erred
in its finding that the prosecution was with reasonable and probable
cause and that there was no malice.
[31]
The
set of charges are discrete and have to be considered separately in
determining the absence of reasonable and probable cause.
Considerations pertaining to the one set of charges cannot be
transposed onto the other. In other words, the fact that there was
a
reasonable and probable cause to prosecute on one set of charges has
no effect on the outcome of the enquiry in relation to the
other set
of charges. This is so, because the question whether reasonable
grounds for the prosecution exist is answered only by
reference to
the facts of each case. The Appeal Court in
Beckenstrater
v Rottcher and Theunissen
[7]
set
out the test for ‘
absence
of reasonable and probable cause
’
as follows:
“
When
it is alleged that a 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
reasonable and probable cause.”
[32]
The
test contains both a subjective and objective element which means
that there must be both actual belief on the part of the members
of
the Service and the prosecutor and that that belief must be
reasonable in the circumstances.
[8]
[33]
I will first deal with whether Mpanzela
acted with reasonable and probable cause when setting the law in
motion against the appellant.
Mpanzela admitted under cross
examination that he did not see who caused the doors to the toilet to
be opened. When he met Gabayi
in the passage, the doors to the toilet
were already opened. He also did not uplift any fingerprints from the
door to verify that
Gabayi and the appellant had broken the door.
There were also no photographs taken to show that the door had been
broken by Gabayi
and the appellant. Wesi testified that as far as he
was aware, the door to the toilet was open before he left to patrol
outside
. In any event there was no
evidence whatsoever to prove that the appellant had committed
malicious injury to property or that she
had acted in common purpose
with Gabayi.
[34]
Regard
being had to the above, I am of the view that Mpanzela set the law in
motion against the appellant without reasonable and
probable cause as
he did not have such information as would lead a reasonable man to
conclude that the appellant was guilty of
the offence charged.
[9]
[35]
There was also no evidence to
demonstrate that the appellant had committed assault with an
intention to cause grievous bodily harm
or assault by threats.
[36]
In respect of the charges of
crimen
inuria
, Mpanzela, in his evidence,
only stated that the appellant called him “
inzule
”,
which he understood in isiXhosa to mean that he is a foreigner and
the person from outside Mthatha. Mpanzela considered
it to be an
insult and nothing more. His statement filed in the docket says much
more and is very exaggerated. It appears that
certain words were
inserted post the making of the statement.
[37]
Recourse being had to all of the above,
it is clear that Mpanzela acted without reasonable and probable cause
when instigating criminal
proceedings against the appellant.
[38]
The
Court
a
quo
found
that the appellant had failed to establish that Mpanzela’s
conduct in setting the law in motion was actuated by malice.
I agree
with counsel for the appellant that the Court
a
quo
erred
in this regard. The requirement of “
malice”
has
been the subject of discussion in a number of cases in the Supreme
Court of Appeal. The approach now adopted is that, although
the
expression “
malice
”
is used, the claimant’s remedy in a claim for malicious
prosecution lies under the
action
injuriarum
and that what has to be proved in this regard is
animus
injuriandi.
[10]
By way of further elaboration in
Moleko
it was said:
“
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution,
but must at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless
as to the consequences of
his or her conduct (
dolus eventualis
). Negligence on the part
of the defendant (or, I would say, even gross negligence) will not
suffice.”
[39]
The “
malice
”
must be that of the person responsible for initiating the prosecution
against the appellant. In this case the appellant
was formally
charged with malicious injury to property, assault by threats and
crimen inuria
by
a member of the Service (Mpanzela) at Madeira Police Station. It
would appear that this is the stage at which the proceedings
were
initiated.
[40]
Regard
being had to the aforegoing, it is demonstrably clear that when
Mpanzela preferred charges against the appellant on 06 September
2014, he knew he had no information to support those charges.
Mpanzela,
must at the very least have known that no offence had been committed
and that, in preferring the charges against the appellant,
he foresaw
the possibility that he was acting wrongfully. There can be no
question that when Mpanzela charged the appellant,
he was aware
of the fact that, by so doing, the appellant would in all probability
be “
injured
”
and her dignity (“
comprehending
also [her] good name and privacy
”)
[11]
would in all probability be negatively affected.
[12]
He nevertheless continued so to act, reckless as to the consequences
of his conduct. In my view, he thus acted
animo
injuriandi
.
[13]
Consequently, the appellant has proved the elements of
malicious prosecution and her claim in this regard, with
respect,
should have succeeded against the first respondent.
[41]
I now turn to deal with the second
respondent. Mbeleki testified on behalf of the second respondent but
was not the prosecutor who
took the decision to prosecute the
appellant. He, however, was the trial court prosecutor.
[42]
Consequently, there is no evidence by
the second respondent to dispute the appellant’s contention
that when the prosecutors
instituted criminal proceedings against her
on the charges, they had no reasonable and probable cause. It is
important to note
that the police had only charged the appellant with
malicious injury to property, assault by threat and
crimen
inuria
. However, the prosecutors
charged the appellant with malicious injury to property, assault with
an intention of committing grievous
bodily harm and
crimen
inuria
, which are far more serious
charges. In fact, Mbeleki conceded that he continued with the trial
knowing that there was no evidence
against the appellant on the
criminal charges, especially that of malicious injury to property.
[43]
Even though the Court
a
quo
found that Mbeleki acted without
reasonable and probable cause, it found that there was no malice on
Mbeleki’s part because
he conceded that it was a mistake. The
Court
a quo
,
with respect, erred in this regard, especially if regard is had to
the fact that prosecutors must act in good faith. Mbeleki must
have
foreseen that he was acting wrongfully when he continued with the
prosecution against the appellant in circumstances wherein
he knew
that there was no evidence to support the charges against the
appellant, especially if regard is had to what is stated
above in
respect of the information that was available to Mpanzela when he
preferred charges against the appellant.
[44]
There
can be no question that when the prosecutors preferred the charges
against and prosecuted the appellant, they must have or
should have
been aware of the fact that, by so doing, the appellant would in all
probability be injured and her dignity would in
all probability
be negatively affected. Knowing that there was no evidence to
support the charges preferred against the appellant,
the prosecutors
must at the very least have foreseen the possibility that no offence
had been committed and in deciding to prosecute
the appellant, the
were acting wrongfully. They nevertheless continued so to act,
reckless as to the possible consequences of their
conduct. In my
view, the prosecutors acted
animo
injuriandi
.
Consequently, the appellant has proved the elements of
malicious prosecution and her claim in this regard, with
respect,
should have succeeded against the second respondent.
COSTS
[45]
In view of the above, the appeal, only
insofar as it relates to the appellant’s personal claim for
malicious prosecution is
upheld with costs. It is clear from the
aforegoing that the appellant has been partially successful with her
appeal. For this reason,
the respondents should be mulcted with costs
of the appeal.
[46]
I take this opportunity of thanking
counsel for the appellant in furnishing this Court with well-crafted
heads of argument.
AMENDED
ORDER
1.
The appeal, only insofar as it relates
to the appellant’s personal claim for malicious prosecution is
upheld.
2.
The order of the Court
a
quo
is substituted with the
following:
(1)
The first and second plaintiff’s
claim for assault is dismissed.
(2)
The second plaintiff’s claim for
malicious prosecution against the first and second defendants
succeeds.
(3)
The first and second defendants are held
liable, jointly and severally, the one paying, the other to be
absolved, to the second
plaintiff for the agreed or proven damages
consequent upon the second plaintiff’s malicious prosecution.
(4)
The first and second defendants shall
pay the costs of the action, jointly and severally, the one paying
the other to be absolved,
which costs shall include the costs of
drawing supplementary heads of argument.
3.
The respondents are jointly and
severally liable, the one paying the other to be absolved, for the
costs of the appeal, including
the costs of the application for leave
to appeal.
________________________
A
M DA SILVA
ACTING
JUDGE OF THE HIGH COURT
I
agree:
________________________
T
MALUSI
JUDGE
OF THE HIGH COURT
I
agree:
________________________
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For
the appellant:
Adv.
Matebese
SC
Instructed
by: CAPS
Pangwa& Associates
For
the first respondent:
Adv Hinana
Instructed
by: The
State Attorney (Mthatha)
For
the third respondent:
Adv. Mfeya
Instructed
by: The
State Attorney (Mthatha)
Date
of Hearing: 12
August 2019
Judgment
delivered: 04
October 2019
[1]
Bennet
v Minister of Police
1980 (3) SA 24
(C).
[2]
Jackson
v SA National Institute for Crime Prevention
1976 (3) SA 1
(A);
Mabaso
v Felix
1981
(3) SA 865 (A).
[3]
1984
(4) SA 437
(E) at 440D – G.
[4]
2016
(4) SA 121
(CC)
(2016 (6) BCLR 709
;
[2016] ZACC 13)
paras 37 and 40
(
Makate
).
[5]
See
R
v Dhlumayo and Another
1948 (2) SA 677
(A) and the authorities referred to therein.
[6]
Minister
of Justice and Constitutional Development and others v Moleko
2009 (2) SACR 585 (SCA).
[7]
1955
(1) SA 129
(A) at 136A-B.
[8]
J
Neethling, JM Potgieter & PJ Visser
Neethling's
Law of Personality
(2 ed, 2005) at 176.
[9]
Beckenstrater
v Rottcher and Theuiunsen
1955 (1) SA 129
(A) at 136A-B.
[10]
See
Moaki
v Reckitt and Colman (Africa) Ltd and Another
1968
(3) SA 98
(A) at 103G-104E
and
Prinsloo
and Another v Newman
1975
(1) SA 481
(A) at 492A-B.
[11]
Relyant
Trading (Pty) Ltd v Shongwe and Another
[2007] 1 All SA 375
(SCA) para 5.
[12]
See
also the
Moleko
case para 65.
[13]
See
the passage from the
Moleko
case para 64, quoted in para [18] above.