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[2015] ZAGPPHC 188
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Wilken v Uys (36090/13) [2015] ZAGPPHC 188 (24 March 2015)
IN
THE REPUBLIC OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date of hearing: 14
and 16 March 2015
Date of judgment: 24
March 2015
Case Number:
36090/13
Not reportable
Not of interest to
other judges
In the matter
between:
SHAWN
WILKEN
..................................................................................................
Plaintiff
and
RUAN
UYS
..........................................................................................................
Defendant
JUDGMENT
A B ROSSOUW A J
(1) The plaintiff
issued summons against the defendant for payment of an amount of R402
077.10 in respect of damages suffered as
a result of an unlawful
assault.
(2) The parties
applied for a separation of quantum and merits in terms of rule 34(3)
of the Uniform Rules. I granted the application.
(3) In paragraph 3
of the plaintiffs particulars of claim the plaintiff alleges the
following:
'On or about the 5th
October 2012 and at or near Heidelberg Club, the defendant unlawfully
assaulted the plaintiff by hitting him
over the head, causing him to
fall. The assault took place in public and within sight of members of
the public.'
(4) The defendant
pleaded to paragraph 3 of the plaintiffs particulars of claim as
follows:
'The content of this
paragraph is denied and plaintiff is put to the proof thereof.
Alternatively and
only in the event of this Honourable Court finding that the Defendant
did strike the plaintiff as alleged or at
all then in that event the
Defendant pleads justification in that he was justified in doing in
as much as the Plaintiff has attacked
him by striking at him with his
fist to the Defendant's face and the defendant's actions where
necessary for his own protection.'
(5)
Based on the well known case of
Mabaso
v Felix
1931
(3) SA 865
(A) 875, if the plaintiff proves the assault, then the
defendant has the onus to prove his justification ground, which, in
this
case, is self-defence.
(6) The plaintiff
was in his late twenties and the defendant was about twenty during
the incident referred to infra and they are
more or less of the same
build and height.
(7) The plaintiff
called three witnesses including himself.
(8)
The plaintiff testified that on Friday 5 October 2012 his two
friends, Riaan Kruger and Hennie Marx picked him up with Kruger's
car
at the airport between 7 and 8 pm. The plaintiff came all the way
from Katoe for his bachelors party that had been arranged
for the
following day in Parys. Kruger had organised the party. The plaintiff
would sleep over at Kruger's place in Heidelberg.
They decided to go
to a club in Heidelberg for a few drinks since they had not seen each
other for quite some time. They went directly
to the club. They
arrived at the club between 8 and 9 pm. The club was busy but not
overcrowded and loud music was playing. The
plaintiff could not
remember how much alcohol he consumed, but according to him he could
still walk, talk and stand. According
to the plaintiff the three of
them were not together all the time. Later in the evening, between 11
and 12 pm when the plaintiff
was standing at the bar, the defendant
approached him from his right and indicated with his hand that he
wanted to ask the plaintiff
something and when the plaintiff turned
towards the defendant to hear what the defendant had to say the
defendant hit him with
his fist on his right cheek close to his ear
which caused him to fall over backwards. At that point in time Marx
was standing about
a metre to the plaintiffs left. He further
testified that he was hospitalised and placed in an artificial coma
for two weeks. He
could not remember whether he danced or not. It was
put to him that his behaviour was intended to arouse angry feelings
('erg opruiend'),
that he was severely intoxicated ('erg onder die
invloed'), that he touched a girl's buttocks, that he was admonished
by someone
because of his bad behaviour and that he was involved in
an argument with the person who admonished him, that he threw ice at
the
defendant and that he swung his fist in the direction of the
plaintiffs face, all of which the plaintiff could not admit or deny
because of his poor memory. He further testified that touching a
girl's buttocks was not in his nature. The defendant blamed his
poor
memory on the
sequelae
of
the assault and not on the alcohol.
(9) Marx
corroborated the plaintiffs evidence up to the point where they
arrived at the club. He testified that they picked the
plaintiff up
at the airport at about 7pm and that they arrived at the club at
about 8pm. He said that there was a 'buzz' at the
club. The club was
not overcrowded, but it was reasonably busy. He said they all had
something to drink, but he could not remember
how much. He testified
that he and the plaintiff went to the dance floor, that two girls, a
blonde and a brunette, were in their
space the whole time, that they
did not speak to the girls, that he disliked the girls' behaviour as
a result of which he and the
plaintiff returned to the bar. Much
later, about half past ten, the brunette and her boyfriend approached
Marx where he was standing
at the bar. The boyfriend accused Marx of
pointing his middle finger at his girlfriend. He said that he saw a
few people 'hovering'
around which caused him to suspect trouble.
Marx pleaded innocence whereafter the couple left without incident.
After some time
had elapsed and while he was sitting or standing with
his back towards the plaintiff, busy talking to someone else, he
heard chairs
and tables fall and that is when he saw the plaintiff on
his back with his eyes open. That is when he also noticed Kruger's
presence.
He saw the defendant straddling the plaintiff in 'a combat
position'. He further testified that when the defendant saw the
plaintiff
was unconscious the defendant got a fright whereafter the
defendant and his friends left the club. He also testified that
Kruger
followed the defendant, that other people prevented Kruger
from doing so and that the defendant's friends shouted "Los hom
dat ons hom bliksem'. He also heard someone saying something about
the police and that is when the defendant's friends disappeared.
Marx
could not remember what they drank and how many drinks they had. Marx
described his and the plaintiffs condition that night
as 'tipsy'. On
a scale of 1 to 10 where 1 is sober and 10 extremely intoxicated he
said that he and the plaintiff were about a
5. He said that he and
the plaintiff were together most of the time and that Kruger was not
with them all the time. The ambulance
and the police arrived after
someone had called them. The defendant was taken to hospital from
where he was transferred to another
hospital.
(10) Riaan Kruger
also corroborated the plaintiffs evidence up to the point where they
arrived at the club. He said that they arrived
at the club at about
8pm. He said that when they entered the club a group of men stared at
them, that it made him uneasy, but they
ignored it. According to
Kruger they were together most of the time. He further testified that
they had about three to four beers
and three to four double brandies
each. On a scale of 1 to 10 he also gave himself and his friends a 5.
He said that the plaintiff
and Marx went to the dance floor and they
later returned. He did not notice the blonde and the brunette. He was
within hearing
distance when one of the defendant's friends
approached Marx accusing Marx of pointing his middle finger at his
girlfriend and
that he (Kruger) told the person that they did not
want trouble. He then advised the plaintiff and Marx that they should
have their
last drink and leave. Kruger then saw the defendant
approaching the plaintiff from the other side of the bar. He saw how
the defendant
hit the plaintiff on the left side of his face with his
right hand whereafter the defendant fell with his right ear on the
table
behind him. He further testified that the plaintiff did not
throw a punch at the defendant. He was about a half a metre from the
plaintiff when it happened. Marx was standing with his back towards
the incident. He testified that after the incident he grabbed
the
defendant by the collar, that the defendant ran away, that he
followed the defendant, but that a number of men stopped him
at the
door. After the incident the defendant and his friends immediately
left the premises. He said that the plaintiff was in
hospital for two
weeks and that he visited him every day during that period.
(11) The defendant
testified in his own case and he called one witness.
(12) The defendant's
evidence can be summarised thus: On 5 October 2012 the defendant
together with GC du Plessis and Quinton Nortje
went to the club in
Heidelberg. He had about two, but not more than three Castle Light
beers. He said that the plaintiff was drunk
and that at one stage an
elderly person ("n oom') spoke to the plaintiff about his bad
behaviour. During the evening he heard
that the plaintiff touched a
certain Marli Pretorius' buttocks on the dance floor and that she was
very upset about it. To his
best recollection a certain Bezuidenhout
talked to one of the plaintiff's friends about the incident on the
dance floor and Bezuidenhout
also told the defendant about the
incident. He testified that after being informed of the incident he
approached the plaintiff
with the intention to talk to him about his
bad behaviour, ie his loudness and the incident on the dance floor.
According to the
defendant, the plaintiff was very drunk ('baie
dronk'). The plaintiff said that on a scale of 1 to 10 he would give
the plaintiff
an 8. He testified that when he stood in front of the
plaintiff, the plaintiff shot the ice that was in plaintiffs glass in
the
direction of his face and that the ice hit him on his chest. The
plaintiff then threw a punch at him, but missed. It was then that
the
defendant hit him with his open left hand on the right side of his
face whereafter the plaintiff fell backwards and bumped
his head
against a table. At that point in time one of his friends, ie Jaques
du Preez, was standing next to him and du Plessis
was standing right
behind him. He did not know where Quinton was. Thereafter the
defendant left the club and drove away because
he did not want any
further trouble. He further testified that he played rugby for the
Bulldogs and that he was fit and physically
powerful person at the
time of the incident. He denied that Kruger grabbed him by the
collar. According to him, Kruger never touched
him. During his
evidence in chief his counsel asked him whether it was necessary to
hit the plaintiff. He replied by saying that
he believed that it was
not necessary and immediately thereafter said he acted in
self-defence ('Ek glo nie dit was nodig nie.
Ek het hom uit
selfverdediging geklap'). He left the scene before the ambulance and
the police arrived
(13) The last
witness was GC du Plessis. He testified that the plaintiff was very
loud and was seeking attention. He said that the
plaintiff threw ice
at the defendant on more than one occasion and at one stage he
thought that the defendant and the plaintiff
were friends because of
plaintiffs behaviour. He also witnessed the incident. He testified
that the plaintiff did not throw ice
at the defendant when the
defendant stood in front of the plaintiff. He saw that the plaintiff
assumed a boxing stance and that
is when the defendant hit the
plaintiff on the side of his face whereafter the plaintiff fell
sideways and bumped his head against
a table. Thereafter the
defendant left because he did not want further trouble and he left
with the defendant.
(14)
The defendant must prove that there was an unlawful attack, that he
had reasonable grounds for thinking that he was in danger
of serious
injury, and that the means he used were the only or least dangerous
means whereby he could have avoided the danger.
Honest and reasonable
belief of immediate danger is required. The question that must be
asked is whether a reasonable man in the
position of the actor would
have considered that there was a real risk that serious injury was
imminent. Furthermore, force is
not reasonable if it is either
unnecessary or disproportionate to the evil to be prevented. The
latter are two separate and distinct
requirements.
(Minister
of Law and Order v Milne
1998
(1) SA 289
(W) 292J-294D).
(15) The defendant
bears the onus to prove that he was attacked by the plaintiff. He
testified that the plaintiff swung his fist
in the direction of the
defendant's face immediately after the plaintiff had thrown ice at
him. He called du Plessis to corroborate
his evidence in this regard.
Du Plessis testified that no punch was thrown at the defendant and
that the plaintiff did not throw
ice at the defendant when the
plaintiff and defendant were facing each other. Marx and Kruger
corroborated Du Plessis' evidence
that no ice was thrown and that the
plaintiff did not swing his fist in the direction of the defendant's
face. In the light hereof
and mindful of the defendant's own witness
discrediting him, the defendant has failed to prove that he was
attacked in the manner
described by him or at all.
(16) Even If I
accept the defendant's evidence that he was attacked, then, the
defendant on his own version confronted a man that
was severely
intoxicated. I find it improbable that a person in such a state could
pose a physical danger to the defendant who
was on his own admission
not only fit and physically powerful, but sober as well. The
defendant also did some damage to his own
case when he testified
during his evidence in chief that in his view it was not necessary to
hit the plaintiff. He thereby by necessary
implication admitted that
he could have taken less drastic measures to avoid the danger. The
fact that he immediately thereafter
said that he acted in
self-defence does not, in my view, neutralise his concession in this
regard. Furthermore, it is common cause
that he hit the plaintiff
with a tremendous force. Even if I accept that the defendant was
attacked and that the defendant had
no alternative but to hit back,
the amount of force that he exerted on the extremely drunk plaintiff
was under the prevailing circumstances
excessive. Furthermore, the
fact that the defendant did not wait for the police to tell his side
of the story and the fact that
he immediately left the scene without
enquiring as to the well-being of the plaintiff is, in my view, a
clear indication that the
defendant knew that he had overstepped the
boundaries of reasonableness.
(17) I conclude that
the defendant, on his own version, has failed to prove that he was
justified in acting in the manner he did.
(18) in the result,
I make the following order:
1. The defendant is
ordered pay the plaintiffs proven or agreed damages.
2. The defendant is
ordered to pay the plaintiffs costs.
A B ROSSOUW A J
DATE: 2013-03-24
DATE OF HEARING:
14 and 16 MARCH 2015
DATE OF JUDGMENT:
24 MARCH 2015
FOR THE
PLAINTIFF
ADVOCATES: C
ABOONZAAIER
ATTORNEYS:
SERFONTEIN VILJOEN & SWART
FOR THE
DEFENDANT
ADVOCATE: F VAN
DER MERWE
ATTORNEYS: DE
BEER ATTORNEYS
c
/o MACROBERT
ATTORNEYS