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2016
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[2016] ZALMPPHC 9
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Elliot v Minister of Police (HCA07/2016) [2016] ZALMPPHC 9 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: HCA 07/2016
Reportable: No
Of interest to other
judges: No
Revised.
20/10/2016
In
the matter between:
MONAMA
MALESELA
ELLIOT
APPELLANT
and
MINISTER
OF
POLICE RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]. The Appellant
appeals against the judgment and order of the Magistrate Court of
Mokerong in terms whereby the Appellant’s
action was dismissed
with costs on the 11 February 2016.
The Appellant had issued
summons in the Court
a quo
claiming damages arising out of an
assault by members of the South African Police Service.
[2].
In the pleadings the defendant in the Court
a
quo
denied
the allegations of assault and the matter went on trial on the issues
of both liability and quantum of damages. There had
not been any
prior exception to the particulars of claim on the ground that same
do not disclose a cause of action. It was common
cause that the
members of the Police Service who allegedly assaulted the Appellant
were acting within the course and scope of their
employment with the
Minister of Police.
[3]. At the trial the
Appellant was the only witness to testify.
The
Respondent closed his case without leading evidence.
[4]. The Appellant
testified that he was called to the scene of an accident where his
friend’s wife was involved. He phoned
the police to come to the
scene. Upon arrival two police officers accused him of being
disrespectful to them and started to assault
him. He was later taken
to the Police Station where he was further assaulted.
The
assault at the scene of the accident took place in the presence of
several members of the public.
[5].
As a result of the assault the Appellant sustained injuries. His face
was swollen and he felt pain all over his body. He bled
through his
mouth which was also swollen. He had to undergo medical treatment and
a medical report in the form of Form J88 was
handed in as an exhibit
at the trial.
[6].
The trial magistrate made a finding that there was a
prima
facie
case
against the Respondent. Notwithstanding the established prima facie
case the Respondent closed his case without calling any
witness to
controvert the Appellant’s version. In my view the trial
magistrate should have granted judgment in favour of
the Appellant.
[7].
However, the learned magistrate dismissed the Appellant’s claim
on the ground that the particulars of claim do not disclose
a cause
of action. His reasoning was that the Appellant’s summons
lacked the allegations of wrongfulness or unlawfulness
and malicious
intention and thus it disclosed no cause of action.
[8].
For the reasons that follow hereunder the learned magistrate was
clearly wrong in his judgment. In the particulars of claim
the
allegation of “Assault” is clearly set out and is
supported by the undisputed evidence of the Appellant.
[9].
Assault consists in unlawfully and intentionally (1) applying force
to the person of another or (2) inspiring a belief in that
other that
force is immediately to be applied to him.
See
JRL Milton, South African Criminal Law and Procedure
Volume
II 3
rd
Edition at page 406
[10].
Assault encompasses the elements of wrongfulness and
animus
injuriandi.
Although in an action based on assault a plaintiff
must normally allege and prove
animus injuriandi
and
unlawfulness on the part of the defendant, in the present case this
was unnecessary: the allegation of assault is an allegation
of an
unlawful inroad upon the plaintiff’s right to the integrity of
his personality and the animus is sufficiently alleged
by the
allegation of assault.
See
Bennet v. Minister of Police and Another 1980(3) SA 24
(CPD)
[11].
If the particulars of claim lack an express averment of
animus
injuriandi
it can be implied from other averments in the
plaintiff’s pleadings.
Prima facie
if the plaintiff
alleges an assault on him he is alleging an unlawful and violent
physical attack upon him which in the normal
course involves an
element of the
contumelia
inflicted.
[12]. In
casu
it
was not necessary for the Appellant to have alleged the elements of
unlawfulness, wrongfulness or intention in his particulars
of claim
in order to establish his cause of action.
It
is trite that in a delictual claim the requirements of fault and
unlawfulness are not factual ingredients of the cause of action,
but
are legal conclusions to be drawn from the facts.
See
Truter
and Another v. Deysel 2006(4) SA 168 (SCA)
[13].
In the result the learned magistrate in the Court
a quo
erred
in dismissing the Appellant’s claim on the ground that the
particulars of claim do not disclose a cause of action.
In the
circumstances the appeal should succeed.
[14]. The injuries
sustained by the Appellant are of a serious nature and needed medical
treatment. There are also elements of
contumelia
and/or
animus
injuriandi
in the assault in as much as the assault took place in
the presence of members of the public at the scene of accident. The
assault
was even repeated at the Police Station where the Appellant
was taken to and without any just cause.
An
amount of R60 000-00 is in my view reasonable to compensate the
Appellant in the circumstance of this case.
[15]. I accordingly grant
the following order:
15.1.
The appeal is upheld with costs.
15.2.
The order of the Court
a
quo
is set aside and substituted with the following order:
“
Judgment
is granted in favour of the Plaintiff and against
the
Defendant for payment of the sum of R60 000-00 with
costs”.
_________________________
E
M MAKGOBA JP
JUDGE
PRESIDENT OF THE HIGH
COURT
OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
I
agree
_________________________
M
G PHATUDI J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on: 14 October 2016
For
Appellant: Mr. M P Phooko
Moloko
Phooko Attorneys
For
Respondent: Mr. L. Molepo
Molepo
& Phala Attorneys