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South Africa: North Gauteng High Court, Pretoria
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2009
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[2009] ZAGPPHC 357
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Van Staden v Cilliers (21/08) [2009] ZAGPPHC 357 (11 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG-PRETORIA
APPEAL
NO: 21/08
DATE:
11 DECEMBER 2009
JOHAN
PHILLIP VAN STADEN
Appellant
And
ELSABE
MAGDELENA CILLIERS
Respondent
Civil
Appeal from judgment of Magistrates' Court
Coram
Victor J, Sapire AJ
JUDGMENT
SAPIRE.
A J
The
respondent sued the appellant in the Magistrate Court, Pretoria
claiming
R100
000. 00 for damages allegedly sustained by her as a result of an
assault perpetrated on her by the appellant. She laid great
stress on
the fact that this assault took place in public where a number of
people witnessed the event.
She
claims 10
have
been hit by the appellant with a fist on her chest. No other assault
is mentioned in their Particulars of Claim. The Particulars
of Claim
contains little mention of any injuries suffered by her other than
emotional trauma. Even this is sparsely described.
In
response to her Request for Further Particulars she attached a
“doctor’s certificate" from Drs Lampbrecht, Greeff
and Partners. The report which was not substantiated by evidence is
unhelpful in establishing any physical damage resulting from
the
alleged assault.
The
Appellant pleaded to the claim and denied the assault in the
alternative alleged that should it be found that he did assault
the
Respondent that such assault was justified because the Respondent
attacked him. The Appellant says that he had a reasonable
fear that
the Respondent placed him in danger to which he responded with a
minimum of force. He says that anything he did was necessary
to avoid
the Respondent’s attack.
Both
the Appellant and the Respondent gave evidence at the trial and the
Appellant was supported by Moses Ngende. The evidence was,
as could
be expected, contradictory and it would be difficult to reach a
conclusion as to whether the Appellant’s or the
Respondent's
version is correct.
The
fracas took place in the following circumstances. On the day in
question the Respondent who then had a bar and restaurant adjoining
premises of the Appellant was expecting a delivery of beer. When the
delivery truck arrived the driver parked the truck in the
driveway of
the Appellant’s premises. Whether or not this caused an
obstruction is irrelevant but the uninvited intrusion
onto the
premises caused the Appellant to become angry. He remonstrated with
the driver of the truck. The driver of the truck in
turn called upon
the Respondent to settle the matter with the Appellant and she came
out of her shop so to do.
It
seems that when she emerged she was calm enough but the Appellant
soon angered her and he in turn tried to stop the deliver,
of the
beer. He pushed or kicked the stack of crates and some of the beer
intended for the Respondent was lost when some were broken
and the
contents spilt. What is clear however is that the Respondent was the
first to become physical and she on her own version
advanced on the
Appellant in order to physically push him away from the stack of beer
crates. The Appellant reacted to this and
whilst the Respondent made
no mention in evidence of being struck with a balled fist, the
Appellant he may well have pushed or
poked her on her chest. The
whole unseemly incident was soon over and the belligerents were
separated.
The
matter should have ended there and some inoffensive way of delivery
beer to the Respondent should and could have been found
in reasoned
discussions. This did not happen and the Respondent sued in the
action and was successful in being awarded the full
amount of R100
000,00 claimed by her together with interest and costs. Against this
judgment, the Appellant has appealed.
The
whole incident in my view should never have become a matter for
litigation and I am strongly of the view that this is a case
where de
minimis non curat lex. The assault if any was minimal, and in
response to the Plaintiff's unseemly initial resort to the
physical.
No significant damages are claimable in respect thereof. This is
specially so in that whatever force was used by the
Appellant was in
answer to an undoubted initial assault by the Respondent.
In
my view the appeal should succeed with costs. The order of the court
a quo be set aside to be substituted by “plaintiffs
claim is
dismissed with costs’
SAPIRE,
AJ
I
agree and it so ordered
VICTOR
J