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[2012] ZAGPPHC 21
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Mabena v Mabena and Another (44038/2010) [2012] ZAGPPHC 21 (14 February 2012)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
No. 44038/2010
DATE:14/02/2012
ISAAC
MABENA
..............................................................................................................
Plaintiff
and
ANDREW
BENJAMIN
MABENA
.........................................................................
First
Defendant
ZULU
BOY EDWARD
MABENA
....................................................................
Second
Defendant
JUDGMENT
Van
der Byl, AJ:-Introduction
[1
] The Plaintiff claims damages, jointly and severally, the one paying
the other to be absolved, from the two Defendants pursuant
to
injuries he sustained and the impairment of his personality rights
and physical integrity arising out of him allegedly being
assaulted
by the two Defendants on or about 21 July 2008 at 5606 Mamelodi
Gardens, Mamelodi West.
[2]
In paragraph 5 of the Defendants' Plea, as amended in the course of
the trial, the Defendants pleaded as follows:
"The
First and Second Defendants admit the Plaintiffs allegations in
respect of the date and place of the incident.
The
First and Second Defendants specifically plead that they were at the
premises and that they were with two other people who were
also known
to the Plaintiff.
The
First and Second Defendants deny that they wrongfully and unlawfully
assaulted the Plaintiff by kicking and punching him and
clubbing him
with pick axe handles.
The
First Defendant specifically pleads that he acted in self-defence
after the Plaintiff had hit him with the pick handle".
[3]
The Plaintiff was the only witness who testified on his behalf
whilst, in addition to the evidence of the two Defendants, 1
also
heard the evidence of a certain Ms. Elizabeth Malatjie who was called
to testify on their behalf.
The
evidence of the Plaintiff
[4]
As is apparent from Plaintiff's evidence, the First and Second
Defendants are the older brothers of the Plaintiff.
[5]
It appears from the evidence that the parents of the Plaintiff and
the two Defendants are deceased. The Plaintiff and the Second
Defendant were both living in the family home. On the premises are,
apart from the main house, a number of rooms which are, together
with
rooms in the main house rented out by the Plaintiff. The Plaintiff
received the rental which, according to him, is utilized
to pay
electricity and other expenses to maintain the property.
[6]
This state of affairs seems to be and to have been on the day of the
incident a bone of contention between the brothers.
[7]
On 21 July 2008, the Plaintiff testified, whilst sitting in the back
yard of his home the First Defendant arrived at his place
in a
bakkie. The First Defendant, without greeting the Plaintiff, called
the Second Defendant who was at the time in the front
yard. He saw
them having a conversation, but he could not hear what they were
saying.
[8]
They called a gentleman known as Paul who rented one of the outside
rooms. He heard them telling him to pay his rental into
their banking
account.
[9]
The Plaintiff, however, said to them that Paul must pay the rental to
him. The First, thereupon, went to his bakkie from where
he fetched a
pick axe handle and returned to him where he was sitting. He
attempted to run away, but the Second Defendant prevented
him from
doing so. They then started hitting him with their fists and the
First Defendant aimed a blow at him with the pick handle.
He warded
the blow off with his hands. In the process he fell down, whereupon,
the Defendants and two of the Second Defendants'
friends, known as
''Chief and "Seconds" who joined in, assaulted him by
hitting and kicking him. He was unable to see
with what he was struck
by all of them. He, however, saw the First Defendant struck him a
blow on his left leg with the pick handle.
The two Defendants and
their friends then left after telling him that they will be back
again.
[10]
He, whilst suffering excruciating pain, succeeded in crawling into
the house. He was unable to walk as his leg was fractured.
In the
house he called his brother Peter (now deceased) who picked him up
from the floor and assisted him to his car from where
he took him to
the hospital. In the hospital he was treated for the pain he suffered
and a plaster of Paris cast was placed over
his left leg to ensure
the proper union of the femur.
[11
] According to a Report by and Authorised Medical Practitioner on the
Completion of a Medico-Legal Examination (J88) (which
is incidentally
annexed to the Particulars of Claim and forms part of the trial
bundle of documents) completed on 23 July 2008
-
(a)
the Plaintiff was admitted on a stretcher in a lot of pain;
(b)
his clothes were scattered with blood;
(c)
he sustained the following injuries, namely -
(i)
a laceration in the occipital area of the skull;
(ii)
a laceration in his shoulder;
(iii)
a laceration in his right leg which was sutured; and
(iv)
a fracture of the fibula of the left leg.
(I
may mention that the Plaintiff confirmed these injuries in his
evidence and that the parties agreed at the pre-triai proceedings
that copies "of the documents to the used in the trial bundle
should serve as evidence of what they purport to be without
formal
proof thereof although the contents and correctness thereof were not
admitted)
[12]
Because of his injuries he was unable to pursue his employment for a
period of three months during which period he was only
able to move
around on crutches. He was remunerated for only half of that period
during which he suffered loss of earnings in an
amount of R3 783.
[13]
Under cross-examination it was put to the Plaintiff that the First
Defendant will testify -
(a)
that on the day in question there was a fight between him and the two
Defendants because he wanted the Second Defendant to leave
the house;
(b)
that the First Defendant came over to the house to assist the Second
Defendant;
(c)
that when the First Defendant arrived the Plaintiff went into the
house and came out with a pick handle because he wanted to
hit the
Second Defendant;
(d)
that the First Defendant then intervened and the Plaintiff then hit
him;
(e)
that he then took the pick handle and hit the Plaintiff once;
(f)
that the Plaintiff then fell to the ground and thereafter ran away;
(g)
that the injuries he sustained was inflicted by the First Defendant
in self-defence;
(h)
that the two other persons thereafter arrived on the scene.
[14]
The Plaintiff denied these allegations in so far as they conflicted
with his version as testified in chief.
The
evidence of the First Defendant
[15]
The First Defendant, having dealt with the history of the house and
the disputes regarding, particularly, the rental moneys
received by
the Plaintiff, testified that on 21 July 2008 he went to the house
after the Second Defendant called him to come and
to assist him as
the Plaintiff was assaulting him.
[16]
It appeared that the Plaintiff wanted the Second Defendant to move
out of the house.
[17]
An argument ensued, whereupon, the Plaintiff ran into the house and
came out with a pick handle and attempted to hit him. He
succeeded in
grabbing the handle and wanted to hit him with the handle, but he
grabbed it. He pulled it out of Plaintiffs hand,
whereupon, the
Plaintiff ran into the house where he locked himself in.
[18]
They then left taking the handle with them and went to the police
station where they reported the incident.
[19]
He denied that he or any one else assaulted the Plaintiff and that
the Plaintiff got injured.
[20]
The Plaintiff laid a charge against them and they were with two
others charged, but the charges were eventually dropped.
[21
] He was referred to a statement he made on 28 July 2008 relating to
this incident. As is apparent from this statement (bundle
p. 22) he
stated as follows:
"I
don't deny the allegations laid against me. The complainant is the
one assaulted (sic) me with a pick handle. I took that
handle from
him and assaulted him.".
[22]
Under cross-examination the First Defendant was questioned about the
various contradictory versions as they emerged from the
evidence and
as they appear from the pleadings. He, however, persisted that he did
not hit the Plaintiff.
[23]
On a question as to how the Plaintiff incurred the various injuries,
he indicated that he did not know how the injuries were
sustained.
[24]
He was, thereupon, referred to an affidavit (bundle p. 47), being an
affidavit he made on 9 September 2008 in defence of a
protection
order sought by the Plaintiff (bundle p. 39) in which he, inter alia,
stated the following:
"On
21st July 2008 he was not assaulted by any one, he was injured by the
pick handle he was having as he fell when he was
wielding it trying
to hit Edward.... On 21st day of July 2008 we had gone to him to
clarify that matter and he got angry and took
out a pick handle and
in the process he got himself injured as he was drunk.".
[25]
The questions evoked no coherent answer, The evidence of the Second
Defendant
[26]
The Second Defendant, on being asked what he knows about the
Plaintiff's allegation that he was assaulted, indicated that he
knows
nothing about an assault.
[27]
He testified that on the day in question the Plaintiff said to him
that he was not supposed to sleep in that house and that
he was going
to kill him. Furthermore, he said that he was the last born son and
was supposed to remain in that house. He, thereupon,
phoned the First
Defendant who then came to the house and asked what was going on.
[28]
On the First Defendant's arrival he asked the Plaintiff what was
going on. The Plaintiff ran into the house and came out with
a pick
handle and approached him with it. He, however, ran away. The First
Defendant then succeeded in pulling it out of Plaintiff's
hand. The
Plaintiff then ran to the house, but fell at the door, got up and ran
into the house. They then left and went to the
police station where
they reported the incident. His two friends, Chief and Second, only
arrived at the scene the moment they were
about to drive off to the
police station.
[29]
He did not see the Plaintiff sustaining any injuries, but to his
surprise he noticed the following day that the Plaintiff's
leg was in
a plaster of Paris cast.
[30]
Under cross-examination he was referred to a statement (bundle p. 49)
in which he confirmed the correctness of a statement
(bundle p. 47)
made by the First Defendant. At first he denied having ever seen the
statement made by the First Defendant, but
later denied that he ever
read the First Defendant's statement.
The
evidence of the Defendants' witness
[31]
The Defendants called a witness, Elizabeth Malatjie, to testify on
their behalf.
[32]
She testified that she at the time resided in the Plaintiffs home
until some time in 2008.
[33]
According to her she was at home on the day of the incident. The
First Defendant, so she testified, arrived at the house looking
for
the Second Defendant. She saw the Plaintiff running into the house
and came out with a pick handle. He approached the First
Defendant.
She then went into her room to phone her husband. She did not see any
assault on the Plaintiff. She also did not see
that he was injured.
She only saw the Plaintiff falling down at the door. She also did not
see the two other men, Chief and Seconds.
[34]
Under cross-examination she was referred to a statement (bundle p.
50) she made on 9 September 2008 in which she stated that
she saw the
First Defendant arriving looking for the Second Defendant, that the
Plaintiff went into the house coming out with a
pick handle
attempting to hit the Second Defendant, but that he fell and injured
himself She was unable to confirm having said
that the Plaintiff
injured himself or at what time the incident occurred or what
happened to the Plaintiff after the incident.
Evaluation
of the evidence
[35]
As is evident from the above summary of the evidence the case of the
Defendants is not only in various contradictory, but also
inherently
incredible.
[36]
A conclusion to that effect hardly calls for any extensive analysis
of the evidence, but I will briefly deal with some of the
many
discrepancies in the Defendants' case.
[37]
Firstly, there is the contradictions in the evidence of the two
Defendants. According to the First Defendant the Plaintiff
attempted
to attack the Second Defendant with the pick handle, whereupon, the
Plaintiff ran ran into the house after he forced
the handle out of
the Plaintiff's hand. On the other hand the Second Defendant stated
that he ran away as the Plaintiff approached
him and that the
Plaintiff ran away after he was disarmed by the First Defendant and
fell at the door, but again got up and went
into the house. They both
denied that the Plaintiff was assaulted or in any way injured,
[38]
Secondly, there is the contradiction between their evidence on the
one hand and their case as put to the Plaintiff under
cross-examination
and their plea as amended in the course of the
trial on the other. Under cross-examination it was put to the
Plaintiff, as is more
or less contended in their plea, that the First
Defendant acted in self-defence and, as is apparent from what was put
to the Plaintiff,
he, after having disarmed the Plaintiff, struck the
Plaintiff once. This allegation was, as already indicated,
contradicted in
all respects by both Defendants in their evidence.
[39]
Thirdly, both versions of the Defendants are contradicted by
statements they made in defence of the protection order sought
by the
Plaintiff and by the First Defendant in response to a criminal charge
laid against them after the alleged attack on him.
As already
indicated the First Defendant in a statement made by him to the
police he in effect admitted having assaulted the Plaintiff
after he
took the pick handle away from him. In his statement made in defence
of the protection order, being a statement confirmed
by the Second
Defendant, the Defendants denied that they assaulted the Plaintiff
and contended that he injured himself when he
fell because he was
drunk. These allegations are in all respects contradicted by the
Defendants in their evidence (which incidentally
also conflict with
their Plea and the proposition put to the Plaintiff under
cross-examination).
[40]
Fourthly, the Defendants' evidence is so much more rendered
inherently incredible by their failure to explain the objective
evidence of the injuries sustained by the Plaintiff
[41
] From the aforegoing it is obvious that the two Defendants were, to
say the least, pathetic and deliberate liars and perjurers.
Their
versions are obviously farfetched and improbable.
[42]
In view of their unreliable and untruthful evidence, the evidence of
the witness called on their behalf can not be accepted
in so far as
it was aimed at corroborating their evidence. Otherwise her evidence
contributed very little, if any, to their versions
of the events.
[43]
On the other hand the evidence of the Plaintiff is strongly
corroborated by the objective evidence of the serious injuries
he
sustained.
[44]
He impressed me as a credible witness and I have no doubt that his
evidence as to the assault perpetrated on him by the two
Defendants
and the two other men concerned who obviously all acted in concert.
[45]
The evidence clearly shows that the Plaintiff was a victim of a
vicious attack on him.
[46]
Bearing in mind the seriousness of his injuries and the obvious pain
and inconvenience he suffered for a considerable period
after the
assault coupled with the degree of humiliation which accompanied the
assault calls, apart from the patrimonial damages
he suffered, for a
substantial award in general damages.
Order
[47]
In the result I make the following order: -
1.
The First and Second Defendants are ordered to pay, jointly and
severally, the one paying the other to be absolved, to the Plaintiff
-
(a)
in respect of loss of earnings, an amount of R R3 783;
(b)
in respect of general damages, an amount of R80 000.
2.
The First and Second Defendants are ordered to pay, jointly and
severally, the one paying the other to be absolved, the Plaintiff's
costs of the action.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF PLAINTIFF: ADV B STEVENS
On
the instructions of: J W WESSELS & PARTNERS
811
Schoeman Street Arcadia
PRETORIA
Ref:
Mr. J W Wessels/nvr/SM 1194
Tel:
012 343 1410
ON
BEHALF OF THE DEFENDANTS:ADV C BRUWER
On
the instructions of: MNISI ATTORNEYS
4th
Floor,
Suite
446 Van Erkom Building
217
Pretorius Street PRETORIA
DATE
OF HEARING: and 2 February 2012
JUDGMENT
DELIVERED ON: 14 February 2012