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[2014] ZAGPPHC 118
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Van Heerden v Bezuidenhout (48145/2011) [2014] ZAGPPHC 118 (13 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA
Case
number: 48145/2011
Date:13
March 2014
In the matter
between:
DANIEL JACOBUS
VAN HEERDEN
..........................................
Plaintiff
And
ALWYN J
BEZUIDENHOUT
..................................................
Defendant
JUDGMENT
PRETORIUS J,
[1] The plaintiff
issued summons against the defendant for the payment of R150, 000.00.
The cause of the action is the action iniuriarum.
The
claim is for pain
and suffering, loss of amenities of life and nervous shock.
[2] The defendant
pleaded justification and/or self-defence. The plaintiff argued that
the defendant bears the onus to begin, referring
to the principles as
set out in Mabaso v Felix
1981 (3) SA 865
(A) at 874. The court
considered all the arguments and determined that the plaintiff had
the onus to begin in these particular
circumstances.
[3] The evidence of
the plaintiff, Mr van Heerden, was that on 28 March 2011 at 15h00 he
attended a birthday celebration of a common
friend, Mr Smith. The
defendant and his brother, Mr Carl Bezuidenhout, and other friends
were also present. According to Mr van
Heerden he had arrived at Mr
Smith’s house at 15h00. He had consumed no alcoholic beverage
at the time. The plaintiff was
61 years old at the time of the
incident.
[4] The plaintiff
and defendant had a history that the plaintiff had the defendant’s
girlfriend’s car towed away from
his premises. This action by
the plaintiff led to hostility between them.
[5] Mr Smith’s
evidence was that when the defendant heard that the car had been
towed away the defendant said: “Nou
tart die ou man my.”
This version was denied by the defendant. According to the plaintiff,
he, Mr Smith and the
defendant and his brother were sitting at the glass table talking to
one another. Mr Smith got up to attend
to the braaivleis fire; he and
the defendant got up to refill their glasses with whiskey. According
to the plaintiff the defendant
assaulted him by hitting him with his
fist on his ear and then on his chin, without any provocation. The
defendant hit him three
or four times and he fell onto his back on
the ground. He got up as Messrs Smith and Bezuidenhout intervened by
pulling the defendant
away from the plaintiff. His left ear was
bleeding; he felt dizzy and had a headache as a result of the
assault. He went home after
some time. He visited the doctor, who
prescribed painkillers and other medicine.
[6] He was
humiliated by this assault. He denied that he had been drunk when the
incident took place, as he had only consumed three
single whiskies at
the time. He had his glass in his hand when he fell. He denied
hitting either the defendant or his brother with
the glass. He denied
that the defendant had only hit him with an open hand, which caused
him to fall and injure his ear. He did
not see the defendant hitting
him with his clenched fists, but assumed it was the case due to the
severity of his injuries.
[7] The plaintiff
testified that he and the defendant had previously had problems
regarding the defendant’s girlfriend’s
motor vehicle
which he had parked at the plaintiff’s garage.
[8] Mr Smith
confirmed Mr van Heerden’s evidence as to the events of 28
March 2011, but testified that Mr van Heerden had
been at his place
of employment and that Mr van Heerden had consumed one beer at
approximately 11 hOO, before leaving for Mr Smith’s
house. He
did not see the actual assault, but when he turned around the
plaintiff was on his back and he and the defendant were
exchanging
blows. His evidence was that they had to separate the plaintiff and
defendant, by pulling the defendant away from the
plaintiff.
[9] The defendant is
a policeman who is 15 years younger than the plaintiff. He is also a
much bigger man as he is 2,01m in length
and weighs 120kg. He denied
that Mr Smith was present during the assault as he had gone to the
lounge to play some music- this
version was never put to Mr Smith and
the court accepts Mr Smith’s evidence. The defendant admitted
that he had had a lot
to drink at the time, as had everybody else,
except his brother. His evidence was that he was angry as the
plaintiff tried to hit
him with a glass he had in his hand.
[10] His brother
came in between and told him to leave Mr van Heerden alone as he was
drunk. His brother confirmed this conversation
and that he had felt a
blow from the back, which caused his glasses to fall onto the floor.
He did not see the defendant hitting
the plaintiff- he only saw Mr
van Heerden lying on his back on the floor, with the defendant on top
of him. Mr Bezuidenhout, the
defendant’s
brother, indicated
that he was standing with his back to the plaintiff with his hands on
his brother’s, the defendant, chest.
He was obviously trying to
stop the defendant and did not regard the plaintiff to be dangerous
at that stage.
[11] The court takes
note that this was a celebration where quite an amount of liquor was
consumed by all. The witnesses contradicted
one another as to how the
assault had taken place. The court can, however, on the defendant’s
own evidence find that he slapped
the plaintiff at least once, which
caused the defendant to fall down on his back. The plaintiff had an
injury to his ear, which
caused his ear to bleed and his jaw was
bruised and swollen. His injuries caused him to visit a medical
practitioner for treatment.
Mr Bezuidenhout, the defendant, had no
injuries at all.
[12] If the court
accepts that the plaintiff was threatening the defendant and that he
was trying to hit the defendant with a glass
in his hand, the
question is whether the defendant could have had reasonable grounds
to believe that the defendant was in physical
danger.
[13] Here the court
takes cognisance of the fact that the defendant is much taller and
younger than the plaintiff. He could not
give any reasons for not
simply grabbing hold of the plaintiff to prevent an
attack. His brother
was apparently hit by the plaintiff, which caused the defendant to
slap the plaintiff. There was at no stage
any imminent danger to the
defendant himself.
[14] In S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
CC at paragraph 138 Chaskalson
P held:
“Self-defence
takes place at the time of the threat to the victim's life, at the
moment of the emergency which gave rise to
the necessity and,
traditionally, under circumstances in which no less severe
alternative is readily available to the potential
victim. ”
[15] I cannot find
that the defendant’s use of force was commensurate with the
plaintiff’s aggression if I consider
all the facts and the
above dictum,
[16] The defendant
had to prove on a balance of probabilities that by hitting the
plaintiff to such an extent that he fell on his
back, that he had
acted reasonably or justifiably to defend himself. The court comes to
the conclusion, having regard to all the
evidence and the injuries
that the plaintiff sustained that the defendant did not acquit
himself of this onus.
[17] Therefore the
on the defendants own version he should be held liable for the
assault on the plaintiff. Due to the circumstances
prevailing on that
day and the injuries the plaintiff suffered, it is clear that the
amount claimed is excessive and should be
substantially reduced.
[18] This action was
enrolled for hearing on 29 November 2012. Due to the fact that the
defendant had not disclosed the relevant
documents, it was postponed
sine die and the defendant had to pay the costs occasioned by the
postponement.
[19] It was enrolled
for 4 March 2014 for hearing. On 4 March 2014 the matter was
allocated by the Deputy Judge President to be
heard by me. At the
outset, counsel for the defendant indicated that he had only had
instructions to let the matter stand down.
I made several enquiries
as to where the legal representative was, but according to both
counsel his phone went unanswered. In
the end the matter was
adjourned until 5 March 2014 when counsel for the defendant had still
not made an appearance at 11 h45.
[20] The court
indicated that counsel for the defendant had to be in court on 5
March 2014 to inform the court of any reason why
an order de bonis
properiis should not be granted against him for the costs of 4 March
2014.
[21] On 5 March 2014
the court started earlier to ensure that the matter could be
finalized. Mr Broodryk, the attorney who was appearing
for the
defendant, was questioned as to his where abouts the previous day. He
told the court that he had been in court in the Gauteng
Local
Division, Johannesburg and therefor he sent junior counsel to let the
matter stand down until he was available.
[22] He did not
apologize at all for all the inconvenience he had caused to the
court, counsel, witnesses and even his own witnesses
who were present
and ready to proceed at court on 4 March 2014. His excuse was that he
thought in this disrespectful and contemptuous
manner he would ensure
that the action would not lose its place on the roll and thereby he
would assist the plaintiff to have the
matter finalized.
[23] In Visser v
Cryopreservation Technologies CC
2003 (6) SA 607
at paragraph 6 Patel
J found:
“[6] What is
pertinent in this matter, now, is whether there is any justification
to grant such an order. The principle of
awarding cost de bonis
propriis was summed up by Innes CJ in Vermaak's Executor v Vermaak's
Heirs
1909 TS 679
at 691 as follows:
'The whole question
was very carefully considered by this Court in Potgieter's case
(1908
TS 982)
, and the general rule was formulated to the effect that in
order to justify a
personal order of
cost against a litigant occupying a fiduciary capacity his conduct in
connection with the litigation in question
must have been mala fide,
negligent or unreasonable.'” (Court’s emphasis)
[24] The aim of an
order de bonis propriis is to indemnify a party against an account
for costs from his own representative. In
this instance Mr Broodryk
said he would deal with his clients and an order de bonis propriis
should not be granted.
[25] Mr Broodryk
acted wilfully as he admitted that he was in another court in a
different division, knowing that he had to be present
in this court.
It has been found that a prayer for an order for costs de bonis
propriis must be made, but in Naidoo v Matlala NO
2012 (1) SA 143
GNP Southwood J held
at paragraph 15:
“The absence
of a prayer is no obstacle. In the applicants' counsel's heads of
argument notice was given that such an order
would be sought. The
general rule is that the unsuccessful party is mulcted in costs and
the failure to pray for costs is not sufficient
reason per se for
depriving a successful litigant of his costs where the other party
has appeared and opposed the claim —
see Sing v Sing
1911 TPD
1034
at 1038 - 1039; Afrisun Mpumalanga (Pty) Ltd v Kunene NO and
Others1999 (2) S/\ 599 (T)
(1999 (5) BCLR 549)
at 632J - 633B.
In my view there is
no reason to depart from the general rule and there is good reason to
order the first respondent to pay the
costs in his personal capacity
on the scale as between attorney and client. ”
[26] In this
instance Mr Broodryk was informed on the day he did not appear,
through junior counsel he had briefed to stand the
matter down, that
such an order will be made. He could not provide any reason as to why
he should not pay the costs on a punitive
scale. The reasons for
ordering that he pays the costs are:
- That he, without
informing the Deputy Judge President at roll call, indicated through
counsel that the matter was ready for trial;
- This resulted in a
court standing down and being inconvenienced for a day;
- The plaintiff’s
counsel and clients, as well as his own clients were inconvenienced
by having to wait a day for him to appear
as they were all present at
court on 4 March 2014 and ready to proceed;
- He was warned that
such an order would be granted;
- He admitted to
double briefing - not even in the same division, but in another
division;
- The reason for the
previous postponement was to enable the defendants to disclose
certain documents, which 15 months later had
still not be done.
[27] His excuse that
he tried to prevent the plaintiff losing its place on the roll cannot
be entertained. The conduct of Mr Broodryk
must be investigated by
the law society, and if necessary, appropriate action must be taken
against him. The fact that Mr Blignaut,
for the plaintiff, did not
insist on such a cost order cannot play a role in awarding punitive
cost order, as the blatant disregard
and contempt of court cannot go
unpunished.
[28] The following
order is made:
1. Payment of an
amount of R15,000.00;
2. Interest a
tempore morae;
3. Costs on
magistrate’s court scale, but Mr J Broodryk, attorney for the
defendant is ordered to pay the costs of 4 March
2014 on the scale as
between attorney and client;
4. The registrar is
requested and directed to send a copy of this judgment together with
the record to the President of the Law
Society of the Northern
Provinces to investigate the conduct of Mr J Broodryk of Neil
Esterhuizen & Ass ING in the light of
this judgment and to take
whatever action against him which the law society considers
appropriate.
Case number :
48145/2011
Heard on : 4
March 2014
For the Applicant
/ Plaintiff : Adv Blignaut
Instructed by :
Bekker
For the
Respondent : Mr Broodryk
Instructed by :
Neil Esterhuysen & Ass. ING.
Date of Judgment
: 13 March 2014