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[2016] ZAGPPHC 295
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Viper Security CC v Seema (A687/2014) [2016] ZAGPPHC 295 (31 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: A687/2014
DATE:
31 MARCH 2016
In
the matter between:
VIPER
SECURITY
CC
............................................................................................................
Appellant
And
MOSEFE
PILOT
SEEMA
....................................................................................................
Respondent
JUDGMENT
MAGARDIE
AJ
1.
This is an appeal against the judgment
of magistrate S F Ntlati sitting as the Gauteng Regional Court in
Pretoria in a matter in
which the respondent instituted action for
damages arising from an incident of assault at the hands of two
security officers employed
by the appellant. The court below granted
judgment in favour of the respondent. It is the judgment on the
merits of the claim that
is at the heart of this appeal.
2.
A
total of four witnesses gave evidence during the trial, namely the
respondent himself, supported by a nurse who attended to the
respondent’s injuries on the day of the assault and two
security officers who testified on behalf of the appellant. Although
on the first day of the trial a further witness for the respondent
was present and warned to attend the trial when the matter was
postponed, the witness did not testify on the day on which the matter
was postponed for further hearing. The nurse was the only
witness
that testified to confirm the respondent's injuries as noted in the
form J88 handed in during the trial.
3.
I
must point out that although both parties filed heads of argument for
the appeal, we only heard oral argument from the appellant.
The
respondent was neither at nor represented during oral argument. Our
judgment has taken into account the written submission
filed on
behalf of the respondent.
4.
The evidence of the respondent was as
follows:
4.1.The incident of assault took
place during the morning of 17 February 2014, at the Bosman Square
Mall;
4.2.The respondent, a street
vendor who sells caps, entered the mall carrying a plastic bag
containing his merchandise;
4.3.Two security officers
employed by the appellant and who were acting within the scope of
their duties confronted the respondent
and reprimanded him not to
sell his merchandise in the mall. The two security guards ordered the
respondent to leave the mall;
4.4.The respondent was
attacked/assaulted shortly after being ordered to leave the mall.
According to the respondent, the two security
officers used open
hands, fists, kicking and what felt like batons when assaulting him;
4.5.The respondent managed to
escape from the security officers; however, as he was crossing the
street, the respondent was grabbed
by an unknown person who handed
him to one of the security officers. The assailant then dragged and
took the respondent to some
enclosure where the assault continued.
The security officers also tripped the respondent, resulting in him
falling down;
4.6.The respondent’s bag
fell after the first assault. It was handed back to the respondent by
a certain Mr Godfrey Malabotse
Dagane. The security officers stopped
assaulting the respondent after members of the public asked why the
respondent was being
assaulted;
4.7.The respondent went to Steve
Biko Hospital Crisis Centre where he was attended to by a nurse. The
nurse also completed a medical
report (“J88 form”) on the
injuries sustained by the respondent; and
4.8.Later in the day, the
respondent returned with the police and pointed out the two security
officers to the police, after which
they were arrested.
5.
The evidence of the appellant was based
on the evidence of two security officers, namely Mr Selolo and Mr
Botsie. Both witnesses
denied that they assaulted the respondent. The
evidence of Mr Selolo , the first witness, was as follows:
5.1.The two security guards were
on duty on the day of the incident. Whilst acting in the course and
within their scope of employment,
they saw the respondent selling
caps where after they accosted and reprimanded him not to sell his
goods in the mall as hawkers
were not allowed to sell in the mall;
5.2.The respondent was not
cooperative and they had to make sure that the respondent exited the
mall;
5.3.The respondent ran out of the
mall shouting at the two security guards. As the respondent ran out
of the mall, he dropped his
merchandise bag and they followed the
respondent with intent to hand over the bag to him;
5.4.Whilst following the
respondent, they noticed that he was surrounded by a group of members
of the public who were busy assaulting
the respondent;
5.5.The two security guards then
rescued the respondent from the crowd. They took him through a gate
at the back of the mall where
they gave the respondent his bag after
which he left; and
5.6.Later in the afternoon, the
police arrived at the mall with the respondent and arrested them.
6.
The evidence of Mr Botsie, which
contradicts that of Mr Selolo, was as
follows:
6.1.After reprimanding the
respondent not to sell his merchandise in the mall, the witness, Mr
Botsie, remained standing next to
Capitec Bank. At that moment, Mr
Botsie noticed that his colleague, Mr Selolo, was having some
altercation with the respondent;
6.2.He then walked towards Mr
Selolo and noticed the respondent beginning to run away. As the
respondent ran, he dropped his merchandise
bag. They picked up the
bag and continued to follow the respondent;
6.3.They then took the respondent
to a delivery gate on the other side of the mall where they gave him
his merchandise bag; and
6.4 Mr Botsie corroborates his
colleague’s version that the respondent was assaulted by
members of the public and that they,
namely Mr Botsie and Mr Selolo,
rescued the respondent.
7.
The only issue that the court beiow had
to determine was whether the two security officers were responsible
for assaulting the respondent.
8.
At the end of the trial, the court below
was not only confronted with two diametrically opposed versions which
were mutually destructive,
but also the contradictory versions of the
two witnesses of the appellant. In dealing with the evidence in its
totality, the court
below made the observation that the respondent
was not a perfect witness and that his evidence was also riddled with
a few inconsistencies.
9.
The court below found that the
appellant’s version was not only contradictory but also
inherently improbable. The court below
stated the discrepancies in
the appellant’s version as the inconsistency between the
appellant’s plea and the evidence
of Its witnesses as well as
the contradictions between the appellant’s witnesses. The court
below concluded that the improbabilities
and inconsistencies in the
appellant’s version corroborated the respondent’s case.
In the end, the court below found
that the respondent’s
evidence proved that the appellant’s witnesses assaulted the
respondent and that the respondent
sustained bodily injuries as a
result of the assault.
10.
The question that has to be answered in
this appeal is whether the court below was correct in finding that
the respondent succeeded
in discharging his onus on a balance of
probabilities by proving the elements of his claim. The nub of the
appellant’s argument
in this appeal is that the respondent’s
evidence was inconsistent and unsatisfactory in material respects to
the extent that
he did not succeed in proving his claim on a balance
of probabilities. It was argued before us that the court below erred
in rejecting
the evidence of the appellant’s witnesses.
11.
It is an established principle of our
law that a plaintiff bears the onus of proving its claim and that
onus is discharged on a
balance of probabilities.
[1]
In determining whether a plaintiff has discharged the onus to prove a
claim, a court is required to consider the oral evidence
together
with any other documentary evidence as well as surrounding
circumstances and probabilities of a case. Many a time a court
may be
confronted with mutually destructive versions and only one version
must be accepted above the other. If the court cannot
find that one
version should be accepted above the other, the conclusion would be
that a plaintiff has failed to prove its claim
on a balance of
probabilities.
12.
In Mabona & Another v Minister of
Law & Order & Others
[2]
it was
held
that when the court is faced with two conflicting versions, the only
one of which can be correct, then the onus is on the plaintiff
to
prove on a preponderance of probabilities that his version is the
truth. Such onus is discharged if the plaintiff can show by
credible
evidence that his version is a more probable and acceptable version.
The credibility of the witnesses and probability
and improbability of
what they say should not be regarded as separate enquiries to be
considered piecemeal. They are part of a
single investigation into
acceptability or otherwise of demeanour and impression of witness
evidence, where the importance of any
discrepancies or contradiction
are assessed against the content of witnesses
1
evidence
and where a particular story is tested against the facts which cannot
be disputed and against inherent probabilities so
that at the end of
the day one can say with conviction that one version is more probable
and should be accepted.
13.
In Nieuwoudt v Joubert
[3]
it was held that the purpose of pleadings is to define issues so as
to enable each party to know the case he has to meet. Once
the
appellant filed its plea in the manner that it did herein, such plea
had to be understood to be the basis of the appellant’s
case
and thereby giving the defendant a clear position of the appellant's
case that he had to meet.
14.
Having regard to what was stated in the
foregoing, I am of the view that the approach of the court below to
the evidence cannot
be faulted. The court below correctly evaluated
the evidence and made credibility findings consistent with
established legal principles.
The appellant’s attack that the
court below should have found that the respondent did not discharge
his onus of proving on
a balance of probabilities that the employees
of the appellant assaulted him, is certainly misplaced and without
merit. It is clear
that the court below did not just elevate the
evidence of the respondent above that of the appellant. The judgment
of the court
below clearly demonstrates that, although the respondent
was not found to be a perfect witness, his evidence was certainly
corroborated
by not only the inconsistencies, improbabilities and
contradictions of the appellant’s evidence, but also the
material inconsistencies
between the appellant’s plea and the
evidence of its witnesses. Basically, the appellant’s evidence
was not in accordance
with its plea, begging the question as to what
informed the plea in the first place. It buttresses the conclusion
that the evidence
of the appellant was contrived in total oblivion of
the plea that was already filed in defence of the claim. On this
score, it
is apposite to highlight the fact that nowhere in the
evidence of the appellant’s witnesses was it ever alleged that
the
respondent was aggressive and refused to leave the mall as was
pleaded in paragraph 4.1 of the appellant’s plea. In the plea,
the appellant stated that as a result of the respondent’s
refusal to leave the mall, the two security officers grabbed the
respondent by his pants and escorted him outside the mall. Nothing is
said about the grabbing of the respondent with his pants
by both
security officers to remove him from the mall. No evidence was
adduced in support of this version at all. Of further significance
in
the many contradictions of the appellant’s version is paragraph
4.3 of the plea, which stated that the two security officers
rescued
the respondent and escorted him through the mall to the main entrance
to protect him from the alleged assailants. This
version is in total
contradiction of what Mr Botsie testified. According to Mr Botsie,
the respondent was taken to the back of
the mall into some form of
enclosure in the loading area. That is a totally different place to
what was pleaded as the main entrance.
The appellant’s
witnesses’ evidence was tailored to distance
themselves
from contact with the respondent. The only contact that the two
security officers were prepared to associate themselves
with was the
belated contrived version that they rescued the respondent from the
crowd.
15.
There was no case of mistaken identity.
It was not in dispute that the two security officers, in the course
of and within the scope
of their duties in the employ of the
appellant, had interaction with the respondent and even took the
respondent to the back of
the mall after grabbing him from the
street. From Mr Botsie’s evidence, it is clear there was some
altercation between Mr
Selolo and the respondent. In this regard, it
follows that there was not much of a difference between the evidence
of the appellant’s
witnesses and the respondent.
16.
Areas of inconsistencies of the
respondent’s evidence were pointed out to us the same way as
they were in the court below.
One of those inconsistencies was
alleged to be whether the respondent was assaulted by batons or not.
I am not swayed by this argument
at all. The transcript of the trial
proceedings is clear on this aspect. The respondent said that
something that felt like a baton
was used to assault him.
17.
Even if it were to be accepted for one
moment that there was such inconsistency in relation to the
instrument of assault, such does
not detract from the fact that the
respondent was assaulted. Whether it be by kicking, open hand,
clenched fist or baton, the respondent
was assaulted.
18.
No plausible reason was advanced as to
why members of the public would initiate some assault on the
respondent in the glare of the
two security guards. I have to accept
the respondent’s evidence that the appellant's employees
manhandled the respondent
and were responsible for taking him to a
secluded place where they carried on with the assault of the
respondent. The appellant’s
witnesses’ account of the
incident was fraught with inherent improbabilities and was also so
farfetched that the court below
was justified in its rejection of
same.
19.
On the consideration of the conspectus
of the evidence, explanations and inconsistencies in the appellant’s
witnesses’
version, probabilities and circumstances of this
matter, it is my view that the findings of the court below were
correct and in
accordance with the law and that the conclusion that
the appellant’s employees acting in the course and within the
scope
of their employment were responsible for assaulting the
respondent after which the respondent sustained injuries in
accordance
with what was recorded by the nurse in the J88. There was
nothing in law that the appellant’s witnesses presented as
lawful
justification for assaulting the respondent.
20.
In the result, the appeal against the
judgment of the court below should be dismissed with costs.
S
L MAGARDIE
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered.
E
M KUBUSHI
JUDGE
OF THE HIGH COURT
[1]
Santam Bpk v Potgieter 1997 (3) SA 415 (O)
[2]
1988 (2) SA 664 (SE)
[3]
1988 (3) SA 84
(SE)