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[2019] ZAECELLC 9
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Van der Westhuizen v Rieger (EL 500/2017) [2019] ZAECELLC 9 (7 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EAST
LONDON CIRCUIT LOCAL DIVISION
Reportable
/ Not Reportable
Case
No: EL 500/2017
In
the matter between:
CLINT
CHARLES VAN DER WESTHUIZEN
Plaintiff
and
GARY
EDWARD RIEGER
Defendant
JUDGMENT
NQUMSE
AJ:
Introduction:
[1]
This action concerns a claim by the plaintiff for damages against the
defendant arising
from an incident which occurred on 23 July 2018 at
Gonubie in East London. Both plaintiff and defendant who are
residents
of East London, and operating unrelated businesses,
encountered each other for the first time on this fateful day.
The plaintiff’s
claim for damages arises from insults and
assault which are denied by the defendant.
The
evidence:
[2]
The plaintiff testified that on 23 July 2016 he was driving on the
Gonubie main road
in East London when he suddenly saw a white Isuzu
bakkie that intended to drive into his vehicle. He avoided
colliding with
it and he drove up to the parking lot next to the
Gonubie Hotel.
[3]
The white Isuzu bakkie came and parked next to his vehicle. The
driver opened
his passenger’s window and asked why he was
driving “so shit”. He in turn asked him why he
wanted to drive
into his vehicle. The driver of the Isuzu shook
his head and drove off.
[4]
He immediately thereafter heard someone who turned out to be the
defendant screaming
through the window of his vehicle uttering these
words:
“
I
will fuck you up, I have photos of you, fuck off back to Duncan
Village jou ‘poes’, I will kill you, I am the boss
of
Gonubie.”
[5]
He further testified that due to feeling that he was being denigrated
coupled with
the fact that he was not from Duncan Village, a black
area that is crime ridden, he alighted at once from his vehicle.
He
went up to the defendant and asked why was he threatening him.
The defendant’s response was “it’s because
I am a
‘poes’ a ‘fucken poes.’ Whilst he was
still on his way to the defendant approximately 1 to
1 ½
metres from him, the defendant pulled out a can of pepper spray and
sprayed him until it was empty. At first he thought
he was sprayed on
his face but later when he was at home, he realised that he had been
sprayed on his face, chest, and eyes.
[6]
Whilst he was at the scene he informed the defendant that he will
report him to the
police and at the same time had asked him to follow
him to the police station. Instead the defendant pepper sprayed
him again
in the view of car guards from whom he asked if they saw
what the defendant was doing to him. They affirmed by nodding
their
heads.
[7]
He further informed the defendant that he had taken down the
registration number of
his vehicle and still implored him to
accompany him to the police station. As he went back to his
vehicle, the defendant
who had his vehicle idling, suddenly pulled
off towards him as if he was going to knock him down.
[8]
He further testified that he drove to the police station whilst the
defendant was
driving fast and closely behind him in a dangerous
manner. The defendant drove in such a manner that the plaintiff
skipped
the red robots for fear of being bumped from behind or even
being killed by the defendant. At the police station he laid a
complaint against the defendant and he also mentioned the presence of
car guards who had witnessed the incident.
[9]
After the plaintiff was informed by the police that his case will be
weak without
witnesses, he set off to look for the car guards and
upon finding them he requested that they furnish the police with
their statements.
He further informed them that they will be
given money by the court as witnesses and should therefore not be
concerned about losing
their takings as car guards when requested to
testify in court. At about 15h00 he went home and took a shower.
After taking a shower
he noticed that the effects of the pepper spray
were getting worse. He struggled to breathe and as a result he
went to Medicross
Hospital where he was nebulized and was also given
a cream for his burning face and eye drops for the itching eyes.
He also
experienced panic attacks for which he was advised to take
medication.
[10]
The fact that he was a coloured man and what was done to him was done
by a white man, troubled
him the most. He felt that
his dignity was violated when he is sent to Duncan Village.
This further reminded
him of his experience as a child when he got
arrested for touching a police vehicle that led him to be detained
for five hours,
whereafter he was released with a warning that “vat
weer op ‘n polisie kar”. That experience according
to him was his first taste of apartheid.
[11]
Whilst he was waiting for the progress in his criminal case against
the defendant, he learned
that the wife of the investigating officer
in his case was working for the defendant. According to him,
his criminal case
against the defendant disappeared and that is why
he is before this court. He has been yearning for this day in
order to
have the defendant, who has displayed himself to be a vile
person and who had used the word ‘poes’ so many times, to
be stopped as he was afraid that somebody may be killed by the
defendant.
[12]
He further testified that the defendant was stalking him whenever he
drives around Gonubie to
visit friends. This he reported to the
police and also launched an application for a protection order, which
did not bear
any positive results since the defendant is a rich
person who gets away with his deeds.
[13]
When the plaintiff was asked in cross examination to repeat the words
that were allegedly uttered
by the defendant, he repeated them as
follows:
“
He
will fuck me up, he has photos of me, I must fuck off back to Duncan
Village, you ‘poes’; and go and drive like that
there.
I will kill you, he is the boss of Gonubie.”
He
further confirmed that the defendant said he will “fucken kill
him”.
[14]
He also said if he drove in an erratic manner on that day it is
because he was trying to get
away from a threat. He does not
know why the car guards wrote statements alleging that he promised to
give them money.
Neither does he know why they said in their
statements they have decided against testifying in that criminal
matter because he
had not paid them the money he had promised to
them. He conceded that he did not tell the police that the
defendant wanted
to kill him by running him over at the parking
lot.
[15]
He also conceded that paragraph 3 of his statement to the police
where he stated that he was
pepper sprayed twice on the face is
incorrect. He also agreed that nowhere did he mention in his
statement that the defendant
wanted to kill him, neither did he
mention that the defendant drove close behind him and forced him to
drive through red robots.
[16]
When it was put to him that the defendant will say in his testimony
that on the day in question,
he noticed a black BMW driving
dangerously, he said he had no comment and could not answer to that
statement. He was unable
to explain why does it play a big role
that the defendant is a white man.
[17]
Dr. Andre Du Plessis testified that on the day in question he was
working at Medicross when the
plaintiff came at about 20h00
complaining of having been pepper sprayed. He presented with
red eyes, a reddish congestion
on his throat, his blood pressure was
high and he was experiencing difficulty in breathing. The
symptoms he presented with
were consistent with being pepper
sprayed. He further testified that due to the aerosol
compound in the pepper spray
its effects get delayed. It is
therefore a probability that it could have lasted from about 13h00 to
20h00 when he saw the
plaintiff. However, he could not rule out
the possibility that the plaintiff may have been sprayed much later
during the
day than the time he indicated.
[18]
He gave the plaintiff eye drops to decrease the irritation on his
eyes and nebulized him to stop
the congestion on his chest.
[19]
He agreed that the effect of pepper spray on the face should be worse
at the time of being sprayed
than it is later, although it depends on
the dosage of the spray and where it was directed on the body of the
person. If
the spray was on the face it may not have been
possible for the plaintiff to have driven up and down with ease.
However,
he could have been sprayed on his clothes and touched that
area and thereafter wiped off his eyes causing them to burn and his
face to be irritable.
[20]
The defendant testified that he is a director of a group of
companies. He has been involved
in community projects of
Gonubie. He has sponsored township rugby clubs. Gonubie
is very close to his heart.
On 23 July 2017 he was coming out
of Spar in Gonubie when he noticed the vehicle of the plaintiff, a
black BMW, driving on their
main road at approximately 140km per
hour. He followed the plaintiff until the parking lot next to
Gonubie Hotel, where he
noticed drivers of two vehicles reprimanding
him for his manner of driving. He further testified that when
the plaintiff
drove past his vehicle with his window opened, he asked
him why was he driving like a ‘mad man’. He told
him
to ‘push off’ and go to Duncan Village and not come
and drive in their place like a mad man. The plaintiff who
appeared angry jumped out of his car, approached him in an aggressive
manner and asked him what he was saying.
[21]
The defendant pulled out from the pocket of his driver’s door
an expired canister of pepper
spray which he had collected when he
had gone for a hunting trip with friends. He showed it to the
plaintiff and he backed
off, not without the plaintiff challenging
him to alight from his vehicle as he was going to “fuck”
him up. That
is when the plaintiff said he will call the police
to which he responded that there was no need.
[22]
He also testified that the plaintiff said he will lay a charge
against him for having pepper
sprayed him. In response, he told
the plaintiff that he will also lay a charge against him for reckless
driving.
[23]
As the plaintiff drove off to the police station he was still driving
recklessly. This
caused him to follow him and when the
plaintiff drove into the police station, he turned and went home.
He confirms the presence
of the car guards who were in the parking
lot but he estimates them to have been 70 metres away although he
later conceded that
they may have been nearer than 70 metres.
[24]
When asked under cross examination why he saw the need to reprimand
the plaintiff for his driving
seeing that he had already been
reprimanded by the other two drivers, he said he felt like doing so
as a bona fide citizen of Gonubie
and a law abiding citizen. He
further stated that the reasons for him to tell the plaintiff that he
must go and drive at
Duncan Village, is because he is a coloured and
there were many coloureds staying at Duncan Village. Neither
does he find
it offensive to tell a coloured person to go back to
Duncan Village.
[25]
When asked how the plaintiff could have had pepper spray on his face,
he said he may have done
it to himself.
[26]
He admitted to having been convicted previously of assault against
someone who he alleges had
an eye on his wife. When asked why
he was following the plaintiff from the parking lot towards the
direction of the police
station, he said he wanted to see where he
was going to
[27]
John Bage is a warrant officer in the South African Police Service
stationed at the Gonubie Police
Station. He testified that as
part of his duties, he takes down statements from complainants and as
a routine he notes any
injuries he may have observed. He
was the officer in charge when plaintiff came to report the incident
between himself
and the defendant. He noticed no injuries when
he took down his statement.
[28]
Phillip Botha is a warrant officer in the South African Police
Service. He testified that
he was the investigating officer of
the criminal case against the defendant. During his
investigations he obtained statements
from the car guards but they
later withdrew their statements claiming that they have not been paid
the money they had been promised
by the plaintiff.
[29]
Under cross examination Botha conceded that if the car guards were
lying in their earlier statements
under oath it is also possible that
they could also be lying in their subsequent statements. He
confirmed that his wife was
working for the defendant but that had no
bearing in his investigations of the case against the defendant.
[30]
This concludes the evidence that was led from both the plaintiff and
the defendant.
[31]
In paragraph 3 of the particulars of claim the plaintiff sets out the
words and utterances of
the defendant as follows:
“
Go
back to Duncan Village and drive like that there you poes. You
will get fucked up here.”
[32]
The defendant denies having uttered the offensive words complained
of, instead he says he uttered
the following statement:
“
Push
off and don’t come and race around our village. Go and
race on the race track.”
[33]
Mr. Cole for the defendant from the outset took issue on whether the
plaintiff’s cause
of action is based on defamation or on
injuria. He made specific reference to the words used in
paragraph 4 of the particulars
of claim which states “the
plaintiff has been defamed in his integrity”.
[34]
His criticism of the particulars of claim has merit seeing that they
are not so clinical in setting
out with precision whether the claim
is based on defamation or on injuria. Although they appear as a
hybrid between defamation
and injuria, plaintiff’s counsel
submitted that the claim is founded on injuria. Having
considered the manner in which
they are framed and the nature of the
evidence that was led I am of the view that plaintiff’s cause
of action would be more
properly characterized as being one for
damages for injuria and for assault. I shall accordingly
therefore treat the particulars
of claim as such.
[35]
As correctly pointed out by counsel for the defendant, the evidence
before court is mutually
destructive and therefore the approach
adopted in
National
Employees General Insurance v Jagers
[1]
finds application. It was held in that case that in deciding
whether the plaintiff has discharged the onus of proof, the
estimate
of the credibility of a witness will be inextricably bound up with a
consideration of the probabilities of the case and,
if the balance of
probabilities favour the plaintiff, then the court will accept his
version as being possibly true. If however,
the probabilities
are evenly balanced in the sense that they do not favour the
plaintiff’s case than they do to the defendant’s,
the
plaintiff can only succeed if the court nonetheless believes him and
is satisfied that his version is true and that the defendant’s
version is false.
[36]
This approach was again stated in
SWF
Group Ltd and Another v Martell Et Cie and Others
[2]
as follows:
“
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 B
his version, (vi) the calibre and cogency of
his performance compared
to that of other witnesses testifying about the same incident or
events. As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence C 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.”
[37]
It is common cause that on the day of the incident, plaintiff drove
his vehicle on the Gonubie
main road in such a manner that attracted
the attention of other road users. He has admitted in his own
evidence that he
had exceeded the speed limit and drove his vehicle
in an erratic manner albeit according to him it was an attempt to
avoid a threat
by another road user. The objective facts are
such that it can be reasonably inferred that the plaintiff drove his
vehicle
recklessly.
[38]
It is further common cause that the reprimand he received from the
other drivers due to the reckless
manner he drove his vehicle was
scathing and was infused with lavatory language. It is further
common cause that the defendant
pursued the plaintiff to the parking
lot and joined in the reprimand, by asking why plaintiff drove like a
“mad man”.
Analysis
of the evidence:
[39]
Both plaintiff and defendant are single witnesses in as far as the
exchange of words between
them at the parking lot near Gonubie Hotel
and what followed thereafter.
[40]
The manner in which the plaintiff adduced his evidence is plainly
characterized by over exaggeration
with vitriol coupled with hate
against the defendant and at times gave evidence on certain aspects
of the incident which in all
probabilities was false. This is
borne out in a number of accounts from his testimony but most notably
is the glaring utterances
as set out in the particulars of claim and
the disparity in his evidence in court.
[41]
In the particulars of claim he averred the utterances of the
defendant as “go back to Duncan
Village and drive like that
there you poes. You will be fucked up here”. In his
evidence in chief he added other
derogatory words effectively
changing the words uttered to be the following: “I will
fuck you up, I have a photo of
you. Fuck off back to Duncan
Village you poes, I will kill you, I am the boss of Gonubie,”
When he was asked under
cross examination to repeat what was said to
him by the defendant. He said, defendant said “he will
fuck me up, he
has photos of me, I must fuck off back to Duncas
Village, ‘you poes’; and go and drive like that there’.
‘I will kill you, he is the boss of Gonubie.’
[42]
The changes in the text in the particulars of claim, compared to his
evidence in chief and under
cross examination is glaring. I
tend to agree with counsel for the defendant that had he informed his
counsel of the utterances
that appears in the latter texts, these
would have been set out in the particulars of claim. None of
the statements plaintiff
made to the police, A1 and A6 which were
attached to the defendant’s trial bundle, reflect the words in
the latter text.
Nowhere in these statements does the plaintiff
allege that the defendant uttered the words “I will kill you, I
am the boss
of Gonubie”. Instead, both statements bear
the text that has been pleaded in the particulars of claim.
[43]
The vengeance and hate the plaintiff harbours against the defendant
is further demonstrated in
his incomprehendible allegation that the
defendant wanted to kill him at the parking lot and when he drove
behind him when he was
driving to the police station. His
exaggeration which is actuated by hate has further become evident
when he said, he is
before court to have the defendant stopped
otherwise he is afraid lest the defendant kill somebody. There
was no evidence
before court to support this allegation. More
so, despite the alleged threat to his life, that was never reported
to the
police. Who is this person that is going to be killed by
the defendant?
[44]
I am constrained not to agree with the defendant’s counsel that
the tears shed by the plaintiff
in the witness box are not
necessarily as a result of the pain caused by the insults he alleges
to have suffered, instead they
are part of his theatrics and
emotional displays. That having been said I am not in agreement
with him when he says that
they are a display of ‘crocodile
tears’ aimed at avoiding questions. The least I can make
out of the plaintiff’s
tears is that they demonstrate the
palpable anger he has against the defendant.
[45]
Another falsity in plaintiff’s evidence is when he said he had
to jump red robots owing
to the defendant driving closely and
dangerously behind him. Once again none of his statements made
to the police make mention
of this allegation. This is another
obvious exaggeration of what he says happened.
[46]
The defendant had also his share of difficulties which do not render
his evidence without blemish.
He pleaded that he never uttered
the words as averred by the plaintiff in the particulars of claim.
Instead he uttered the
words “push off and don’t come
race around our village. Go and race on the race track”.
However,
in his evidence in court he said he told the plaintiff to
push off and go to Duncan Village and not come to drive in their
place
like a mad man. The words he had pleaded do not include
“Duncan Village” neither do they bear the words “drive
like a mad man”. He did not proffer any
explanation why the words “go back to Duncan Village”
came up for the first time during his evidence before court.
[47]
According to the defendant, plaintiff’s aggressive behavior
against him was triggered by
reprimanding him for driving
dangerously. However, the difficulty with this proposition is
that earlier, the plaintiff was
reprimanded by two men using unsavory
language which should have incensed him to challenge their verbal
attack. It appears
that he instead shrugged off their reprimand
without any altercation. Whereas when he got a reprimand from the
defendant, he took
umbrage and approached the defendant asking what
he was saying. The only probable reason that could have
triggered this kind
of reaction is that the defendant must have
uttered offensive words that were more denigrating or inflammatory
causing the plaintiff
to lose his temper as he did.
[48]
I therefore find no other reason for plaintiff’s reaction save
to find that that the defendant
uttered the words that are set out in
the particulars of claim.
[49]
The facts suggest that when the plaintiff approached the defendant he
was not calm but was in
an aggressive mood as alleged by the
defendant. This is also borne out in his invitation for the
defendant to alight from
his vehicle in order “to fuck him up”.
I accept that his behavior could have instilled fear in the
defendant
causing him to ward off any potential attack that may
ensue. This is how the pepper spray finds its ways into the
equation.
[50]
However, according to the defendant the pepper spray canister was
empty with an expiry date of
2014. He acquired it from a friend
who wanted to throw it away thereby causing litter to the hunting
field. He kept
this empty can in his vehicle from 2014 to 2016,
presumably forgot to dispose of it as he would not have had any
purpose for keeping
it. However, it defies any logic that the
defendant will return from a hunting trip, with an empty can of
pepper spray that
was to be discarded by his friend, but stopped him
from doing so but instead of asking his friend to throw it away
elsewhere, he
decides to keep it for a period of approximately two
years. Nevertheless, he quickly remembers it when approached by
the
plaintiff. I find his version on this aspect completely
unbelievable and improbable. Whilst there is no other evidence
to contradict the manner he acquired the canister, what I find
improbable is how he would have kept an empty canister that is
useless in his vehicle for such a long time. I therefore reject
his version and find on probabilities that he kept the pepper
spray
because it had contents in it.
[51]
I find the doctor’s evidence that the plaintiff was not sprayed
directly on his face, but
on his clothes more probable and reject his
version that he was sprayed on his face. The effects that he
suffered on his
face and eyes may have been brought to bear by
touching his clothes and wiping off his face
[52]
The evidence of Warrant Officer Bage did not take this matter any
further except to confirm that
he took down statements from the car
guards, who first implicated the defendant but later deposed to other
affidavits recanting
their earlier version by reason of not being
paid by the plaintiff as promised. Nothing much can be deduced
on what pertains
to the car guards as I am unable to make any
credibility findings on their conflicting statements without their
testimony being
tested in cross examination. The submission by
counsel for the defendant that plaintiff is fortunate that he has not
yet
been charged for bribery and attempting to defeat the ends of
justice is not supported by any credible evidence. It is
therefore
my view that no consideration needs to be placed thereon.
[53]
I turn now to deal with the question whether the words I found to
have been uttered by the defendant
have the effect of impairing the
dignity of the plaintiff.
[54]
Counsel for the defendant contended that to call somebody a ‘poes’
is essentially
a meaningless abuse and to say to another ‘you
will get fucked up here’ conveys only that some aggression will
be metered
out to someone, but does not infringe on the dignity of a
person. He also contended that much as it is difficult to
ascribe
damages to the words ‘go back to Duncan Village”.
If there are any damages that should flow therefrom, they deserve
to
be minimal.
[55]
In order to have an appreciation of the effect of the offensive words
uttered, I find it necessary
as a point of departure to consider the
imperatives of the Constitution of the Republic of South
Africa
[3]
(the Constitution).
The value of human dignity safeguarded and promoted, inter alia, by
the recognition of a right to dignity
in the Bill of Rights.
The comparable centrality of human dignity in the interim
Constitution prompted the Constitutional
Court to describe the right
to human dignity and the right to life as the most important part of
human rights.
[4]
[56]
Human dignity, the achievement of equality and the advancement of
human rights and freedom are
the foundational values of our
Constitution.
[5]
These
values enjoy the first spot in the ranking of rights enshrined in the
Bill of Rights.
[6]
[57]
In
Dawood
and Another v Minister of Home Affairs and Others; Shadahi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[7]
the following is stated:
“
[35]
The value of dignity in Constitutional framework cannot therefore be
doubted. The Constitution asserts
dignity to contradict our
past in which human dignity for black South Africans was routinely
and cruelly denied. It asserts
it too to inform the future, to
invest in our democracy respect for the intrinsic worth for all human
beings. Human dignity
therefore informs Constitutional
adjudication and interpretations at a range of all levels. It
is a value that informs the
interpretation of many, possibly all,
other rights. This court has already acknowledged the
importance of constitutional
value that is of central significance in
the limitations analysis. Section 10, however, makes it plain
that dignity is not
only a value fundamental to the constitution, it
is a judicial and enforceable right that must be respected and
protected …”
[58]
In cases of verbal injury, other than defamation, the words
complained of must impair the plaintiff’s
dignity and must be
insulting in the sense that they must amount to degrading,
humiliating or ignominious treatment.
[8]
In
Brenner
[9]
the words “bloody bitch” was used and the court said
“although therefore, the word “bitch” might
be
meaningless as affecting the reputation of the person to whom it is
applied the words “bloody bitch” used in the
context
complained of by plaintiff was certainly offensive and intended to
humiliate the plaintiff.
[10]
The import of the case above is that the context in which the words
are used plays a significant role.
[59]
Recently the Constitutional Court in a unanimous judgment in
Rustenburg
Platinum Mine and SAEWA obo Meyer Bester and Others
[11]
had to consider the approach to be adopted in the determination
whether words are derogatory and racist. Theron J said the following:
“
That
Labour Appeal Court’s starting point that phrases are
presumptively neutral fails to recognize the impact of the legacy
of
apartheid and racial segregation that has left us with a racially
charged present. This approach holds the danger that
the
dominant, racist view of the past – of what is neutral, normal
and acceptable – might be used as the starting point
in the
enquiry without recognizing that the root of this view skews such
enquiry. It cannot be correct to ignore the reality
of our part
of institutionally entrenched racism and begin an enquiry into
whether or not a statement is racist and derogatory
from a
presumption that the context is neutral – our societal and
historical context dictates the contrary. In this
sense, the
Labour Appeal Court’s decision sanitized the context in which
the phrase “swart man” was used assuming
that it would be
neutral without considering how, as a starting point, one may
consider the use of racial descriptions in a past-apartheid
South
Africa.”
[60]
The court continued and said “the past may have
institutionalized and legitimized racism
but our Constitution
constitutes a “radical and decisive break from that part of the
past which is unacceptable. Our
Constitution rightly
acknowledges that our past is one of deep societal divisions
characterized by “
strife,
conflict, untold suffering and injustice”.
“
Racism and racial prejudices have
not disappeared overnight, and they stem, as demonstrated in our
history, from a misconceived
view that some are superior to others …”
[61]
I turn now to consider the words used by the defendant and the
context in which they were used.
To justify the words “go
back to Duncan Village …” the defendant said it is
because he perceived the plaintiff
to be a coloured. It is
implicit in my view that the defendant classified the plaintiff on
the basis of the colour of his
skin and find it befitting of him to
reside in a coloured or black area as opposed to any other white
suburb in the vicinity of
East London. I also find it
hypocritical for the defendant to say he was actuated by love for the
citizens of Gonubie and
their children when he said the plaintiff
must go back to live like that in Duncan Village, not in their area,
giving an impression
that he does not place equal value to the lives
of the residents and children of Duncan Village to the lives of those
living in
Gonubie. It is that context that causes me not to
agree with counsel for defendant who seem to suggest that to be told
to
return to Duncan village ‘a place known to be home of many
thousands of coloured people’, cannot attract any negative
connotations.
[62]
If Gonubie is not a race track, does it mean Duncan Village is one?
When defendant says
‘you will be fucked up here” for his
manner of driving, could that be a suggesting that Duncan Village
should accommodate
bad behavior of drivers? Put differently,
does it suggest that Duncan Village is a lawless place that does not
require restraint
from its road users. It is for these reasons
that I find that the context in which the words “go back to
Duncan Village”
carried in them a racial connotation that was
derogatory and that would as a matter of course impair the
plaintiff’s dignity.
[63]
I turn to deal with the word poes. “The HAT Verklarende
Handwoordeboek van die Afrikaans
Taal” by Odendaal et al
defines “poes” as meaning, “vroulike skaamdele,
vulva”. In the “Reader’s
Digest Afrikaans –
Engelse Woordeboek” “skaamdele” is defined as
meaning “genitalia, private and
sexual parts of a woman”.
From these definitions, it is undoubtedly so, that a man who is
referred to as being a “private
part” of a woman must
surely find it insulting and his dignity impaired thereby.
[64]
As was stated by Pickering J in
Ryan
v Petrus
[12]
that in a case of verbal injury, otherwise than in cases of
defamation, the words complained of must impair plaintiff’s
dignity and must be insulting in the sense that they must amount to
degrading, humiliating or ignominious treatment. I therefore
find that the word ‘poes’ in the circumstances was not
used in an innocuous sense but was intended to be harmful and
to
humiliate the plaintiff, thereby impaired his dignity.
[65]
In the light of the aforegoing I find that whilst plaintiff was not
an impressive witness who
even lied in some respects. I
nevertheless find on the probabilities of this case that he has
discharged the onus on him
and I therefore reject the defendant’s
version that he did not utter the words set out in the particulars of
claim and his
denial of using a pepper spray to assault the
plaintiff.
[66]
I now come to deal with the appropriate damages that need to be
awarded. As was stated
in
Ryan
v Petrus
[13]
that in assessing damages regard must be to had to a range of factors
arising from the circumstances and facts of the case, including
the
nature and gravity of the violation of the plaintiff’s dignity,
the social standing of the parties and the absence of
an apology by
the defendant.
[67]
In
Brenner
and Botha,
[14]
Boshoff, AJ makes reference to
Botha
v Pretoria Printing Works Limited
[15]
where
Innes, CJ (as he then was) remarked over a century ago as follows:
“
when
one man slaps another’s face there may be no great pain
inflicted and no doctor’s bill incurred, but the insult
offered
to the man attacked is a thing which the court is justified in
compensating by substantial damages. If Courts of
law do not
intervene effectively in cases of this kind, then one of two results
will follow – either one man will avenge
himself for an insult
to himself by insulting the other, or else will take the law into his
own hands. I do not think that
the principle of minimizing
damages in actions of injuria is sound. Where the injury is
clear, substantial damages ought
as a general rule to be given. …”
Boshoff
AJ at page 262 remarks that at the same time the court should not
lose sight of the general circumstances under which the
injuria was
committed.
[68]
Whilst in this matter the assault on plaintiff is as a result of
being pepper sprayed and not
the ordinary assault which Innes CJ
referred to in the case of Botha above. I find the principle
enunciated very apposite.
That having been said, it will
be remiss if I were to lose sight of the role that was played by the
plaintiff in this matter.
It is my view that had the plaintiff
not alighted from his vehicle and confronted the defendant in the
manner he did, most probably
an altercation would not have ensued as
well as the use of pepper spray and the insults that followed.
The lack of restraint
by the plaintiff has contributed immensely in
my view in the unacceptable behavior of the defendant. This
does not in any
way excuse the wrong committed by the defendant even
more so in the absence of remorse from him.
[69]
Given all the circumstances surrounding this matter I find the
following awards appropriate:
1.
For the claim of injuria the plaintiff is awarded an amount of R50
000.00 (fifty
thousand rands).
2.
For assault, the plaintiff is awarded an amount of R10 000.00 (ten
thousand rands).
3.
The defendant is to pay the costs of suit including the cost of
counsel.
________________________
V M NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Counsel for the plaintiff
:
Mr. J Bester
Instructed
by
:
Matyeshana Townley Inc.
East
London
Counsel for the
defendant
:
Mr. S Cole
Instructed
by
: Cooper
Conroy Bell & Richards Inc.
East
London
Dates
heard
: 12 - 14
December 2018
Date
judgment delivered
:
7 March
2019
[1]
1984
(4) SA 437
ECD at 440 D – F
[2]
2003
(1) SA 11
at para 14 I – 15D
[3]
Act
108 of 1996.
[4]
S v
Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC), para 144.
[5]
See
Section 1 of the Constitution.
[6]
S
v Makwanyane supra; National Coalition for Gays and Lesbians
Equality v Minister of Justice
1999 (1) SA 94 (CC)
[7]
[2000] ZACC 8
;
2000
(3) SA 936
(CC)
(2000 (8) BCLR 837
) para 35
[8]
See
Brenner
v Botha
1956
(3) SA 257
(TPD)
[9]
Supra
[10]
Jbid
[11]
.Case
No. CCT 127/17 Rustenburg Platinum Mine v SAEWA and Others [2018]
SACC 13
[12]
2010
(1) SA 169
ECG
[13]
Supra
at page 177 para D – E.
[14]
Supra
at 262 para A.
[15]
1096 TS 910
at p 716