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[2015] ZAGPPHC 368
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Wilken v Uys (36090/13) [2015] ZAGPPHC 368 (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
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
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. 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 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