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[2016] ZAGPPHC 1133
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Neluheni v South Africa Custodial Management (16184/2011) [2016] ZAGPPHC 1133 (17 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE NO: 16184/2011
DATE:
17/10/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
NOT
REVISED
TAKALANI
NELUHENI PLAINTIFF/RESPONDENT
And
THE
SOUTH AFRICAN CUSTODIAL
MANAGEMENT 1
ST
DEFENDANT
P
G
MAKWEA 2
ND
DEFENDANT
JUDGMENT – LEAVE TO
APPEAL
KHUMALO
J
[1]
Applicants seek leave to appeal to the Supreme Court of
Appeal, against the whole of the judgment of this court upholding the
Plaintiffs
claim against the 1st and 2nd Defendant, the order and
reasons of which were delivered on 26 April 2016 and 13 May 2016
respectively,
and upon which corrections in terms of Rule 42 (1) (b)
of the High Court Rules were effected on 20 September 2016.
[2]
The court is implored, when considering the Application
to have due regard to whether or not there are prospects that the
Judges
of Supreme Court of Appeal would take a different view,
therefore find that the court erred in its assessment of facts or its
application
of the law to the facts.
[3]
The Applicants/ Defendant in the trial action conceded
that the test whether there is a reasonable prospect of success on
appeal
is the same in criminal as it is in civil cases. The parties
are hereinafter referred to as cited in the trial action.
[4]
The Defendants' overall view of the court's Judgment as
raised in their heads of argument is that it is not fair, lucid or
well-reasoned.
[5]
A special mention was then made of an averment in the
Defendants' Plea that "the Plaintiff was serving a sentence of
life imprisonment
for rape and murder", to be an innocent
plus
petltio
with no consequence that the court
elevated to a falsehood. It is a fact that the allegation is false.
The court therefore did not
elevate the allegation to a falsehood.
The false allegation was never retracted despite the Defendant
conceding during the trial
that its incorrectness was known at the
time of pleadings. The Defendants allowed the matter to proceed on
that basis, with the
false allegation as part of its
facto
probanda.
[6]
During the cross examination of the 2nd Defendant, a
report which referred to the Plaintiff as "one of the dangerous
offenders
whom under any circumstances can kill or attack the officer
to a regretful situation hence the said incident" was mentioned
whilst questioning him on the allegation in his Plea that Plaintiff
is a convicted murderer. It is therefore not true that the
parties
were not given a chance to deal with the issue during trial. Even
then the Defendants did not move for an amendment of
their Plea.
Parties are bound by their pleadings.
[7]
As to the allegation that the court did not understand
the difference between an onus to begin and burden (onus) of proof:
the Judgment
dealt extensively with the issue of the burden of proof,
as a matter of substantive law, its applicability and effect to the
duty
to begin, including how the parties themselves had decided to
deal with the duty to begin.
[8]
The allegation that the court imputed that the
Defendants' Plea constituted an admission of guilt is unmerited. It
is clarified
in the Judgment that the Defendant had the onus to prove
that the assault or the application of force (as Defendants refer to
it)
on the Plaintiff was Justified (dealing with unlawfulness). It
would not have been expected of the Defendants to do so if the court
regarded their Plea to admit that the application of force was
unlawful. The court also noted the Defendants' cautiousness, not
simply admitting to assault, that it was because of the inference
that arises from the word assault that imputes that the act itself
is
unlawful. Therefore there was no misconception about what the
Defendants were admitting in its Plea. See Judgment [9] - [15].
[9]
Now I turn briefly to deal with the grounds of appeal,
raised in the notice of appeal, almost all of which are on the facts.
[9.1]
The
court is alleged to have erred In finding that the Plaintiff was
assaulted by the Second Defendant and other custodial officers
in
respect of an assault not pleaded by the Plaintiff in his particulars
of claim and of which the Defendant were not warned and
therefore did
not plead to. The court did not find any problem with Plaintiff's
particulars of claim. He only had to set out his
cause of action
detailing the essentials or basis of his claim and not detail all the
supporting facts which are a matter for evidence.
Evidence must not
be pleaded; see
Durr v S.A. Railways and
Harbours
1917 C.P.D. at p. 287 and
Osman
v Jhavery and Others
1939 A.D. 351.
Plaintiff
therefore in his particulars of claim did not give all the details of
the assault on where exactly was he assaulted but
did so in his
testimony. In
Beck's Theory of Principles and
Pleadings in Civil Actions
2nd Edition by I
Isaacs on p33, it is stated that ''There is a distinction between
giving evidence of a fact and stating that fact....
Stating that a
thing was done is stating a fact; giving the details of how it was
done would be giving evidence
of
it."
[9.2]
Furthermore,
Dr Rambuda wrote in the medical report on the injuries sustained by
the Plaintiff during the assault, that he referred
the Plaintiff to
the Urologist, whilst it was the Plaintiffs testimony that his
testicles were also injured during the assault.
Since the referral to
the Urologist followed the examination on the injuries sustained
during the assault, the court considered
the probabilities in favour
of the plaintiff's evidence very high that the injuries on the
testicles were sustained during the
assault. See (90] of the
Judgment.
[9.3]
The
Defendants complain also about what they allege to have been the
court's criticism for their failure to produce the video footage
of
the incident inside the Plaintiffs cell is unjustified. The comment
made in the judgment is undoubtedly in respect of the video
footage
of the incident outside the cell which the Defendants' witnesses
confirmed that it was recorded. It was significant especially
because
the Defendants were disputing the Plaintiff's version of how the
assault outside the cell took place. The video footage
could have
settled the dispute. There is no criticism in the Judgment for
failure to produce a video recording of the incident
inside the cell
as alleged in the notice of appeal. See [107] – [109] of the
Judgment were the issue is dealt with extensively.
[9.4]
The
final complaint is that the court erred in drawing an adverse
inference from Defendants' failure to call Nemamilwe. He is said
to
have been in charge of the block of cells where Plaintiff was held,
to have made the call for backup to Plaintiffs cell, having
been the
first one to arrive at the Plaintiffs cell and found him holding the
burning tissue. He is also alleged to have been found
by the other
officers negotiating with the Plaintiff to drop the burning tissue.
He was therefore a material witness to the Defendants
on whose behalf
all these allegations were made. Also since there was a serious
contention about what happened when the alleged
assault took place in
the cell, especially relating to the allegation that Plaintiff had a
burning tissue that caused the whole
incident. No explanation was
tendered for failure to call Nemamilwe. The court also dealt with
this aspect of the Plaintiff's complaint
substantially in [111] of
its judgment.
[9.5]
In
respect of all other complains raised with regard to the evidence of
the Defendants' witnesses, the Judgment deals extensively
with the
facts as presented by the witnesses and on how the court arrived at
its conclusion on each of the contentions raised by
the Defendants in
the Notice of appeal.
[10]
On all these issues there are no prospects of another
court arriving at a different conclusion. The arguments raised have
no merit.
The matter has no prospects of success deserving neither
the attention of the Supreme Court of Appeal nor the full bench. The
issues
raised are only that of fact and involve a trifling amount.
They have been substantially and irrefutably dealt with.
[11]
On the amendment of the order. It is common cause
between the parties that the custodial officers who include the 2nc1
Defendant
were acting within the scope and course of their employment
with the 151 Defendant. As a result their actions binding upon the
151 Defendant; see
Everson v Allianz Insurance
Ltd
1989 (2) SA 173
© 179-180. Liability
was intended to be imposed upon the 151 Defendant. The amendment was
effected for the reason that the
order did not reflect the true
intention of the court, having erroneously referred to the 2nd
Defendant being liable for the payment
of damages and the costs
instead of the 151 Defendant.
[12]
It is also stated in the judgment that although the
contumelia
and general
damages were considered separately a global amount has been granted
for both damages. The amendment was effected accordingly.
[13]
Under the circumstances I make the following order:
[12.1]
Application
for leave to appeal to the Supreme Court of Appeal is dismissed with
costs.
_____________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
On
behalf of Applicant: Adv Du Preeze
Instructed
by: Coxwell, Steyn Vise & Naude Inc Attorneys
C/O Sanet De Lange Inc
012 362-3970
Ref: S De Lange
On
behalf of Respondents: S O Ravele Attorneys
C/O Nortje Attorneys
015 5162823
Ref: S Ravele