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[2015] ZAGPPHC 366
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Wilken v Uys (36090/13) [2015] ZAGPPHC 366 (24 March 2015)
IN THE REPUBLIC OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 36090/13
DATE: 24 MARCH 2015
In the matter between:
SHAWN
WILKEN
.......................................................................................................................
Plaintiff
And
RUAN
UYS
...............................................................................................................................
Defendant
JUDGMENT
Date of hearing: 14 and 16 March
2015
Date of judgment: 24 March 2015
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 plaintiff's
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 plaintiff's 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 Kathu 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 plaintiff's
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 plaintiff's 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 plaintiff's
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
plaintiff's 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
plaintiff's 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. H
e 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 plaintiff's 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 plaintiff's
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
plaintiff's proven or agreed damages.
2. The defendant is ordered to pay the
plaintiff's 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
ADVOCATE: C A BOONZAAIER
ATTORNEYS: SERFONTEIN VILJOEN &
SWART
FOR THE DEFENDANT
ADVOCATE: F VAN DER MERWE
ATTORNEYS: DE BEER ATTORNEYS ℅
MACROBERT ATTORNEYS