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[2024] ZAECMHC 31
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Sipolo v Sipolo (115/2022) [2024] ZAECMHC 31 (16 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case No.
115/2022
Heard
on: 28 February 2024
Date
delivered: 16 May 2024
In
the matter between:
NONDYEBO
SIPOLO
Plaintiff
And
FIKILE
SIPOLO
Defendant
JUDGMENT
MAJIKI
J:
[1]
In very unfortunate circumstances, the plaintiff an unemployed adult
female sues the defendant, his brother, for damages she
allegedly
suffered as a result of wrongful assault on her body. The
action is defended by the defendant.
[2]
During the trial the parties jointly applied and an order was granted
for separation of issues in terms of rule 33(1) of Uniform
Rules.
This court has to determine the issue relating to the merits only at
this stage.
[3]
The assault on the plaintiff by the defendant with a stick on 30
October 2020, on her right leg, is common cause between the
parties.
What is in issue is whether the head and face injuries sustained by
the plaintiff were also a result of the assault
by the defendant.
[4]
According to the plaintiff the conduct of the defendant caused her
pain and suffering. She also had to undergo surgical
operation,
among other damages she claims to have suffered.
[5]
The plaintiff and doctor Potelwa testified in support of the
plaintiff’s claim. Dr Potelwa had examined the plaintiff
on 31 October 2020, the day following the assault. He completed
the medical report of the plaintiff, commonly known the J88
which was
admitted as exhibit 1. According to Dr Potelwa the plaintiff
informed him that she had been assaulted. However,
he examined
and made observations on the plaintiff which informed his findings.
His drawings in the J88 illustrate the extent
of the injuries.
[6]
Dr Potelwa recorded the injuries as follows: haematomata in the
frontal area of scalp; left peri-orbital oedema and bruising
and
laceration in the lateral aspect of lower leg. He said the
injuries in the leg, oedema and one on top of the head were
inflicted
by use of a blunt object and could not have been a result of
falling. The haematoma in the forehead is the only
one that
could possibly both be a result of falling or use of blunt object.
[7]
The plaintiff testified that she had gone to her parents ’rondavel
to take dishes after meals. The defendant who
was in discussion
with their father accused her of having influenced their younger
sibling, Nomabandla. Their father had
just informed the
defendant that Nomabandla requested a piece of land and that he would
be subdividing their homestead, to allocate
land to her. The
plaintiff disputed that she influenced Nomabandla, instead she told
the defendant that it was a certain
nurse who had a discussion with
their sibling, which might have made her to have the thought of
asking for land. Subsequently
she stepped out of the rondavel.
[8]
Whilst at the door step, she did not notice the defendant who
approached her from the behind, until he had passed and was facing
her. He assaulted her with a stick on top of her eye. She
grabbed the defendant, the defendant fell. She unsuccessfully
tried
to grab the stick. The defendant then assaulted her on her head
and leg. This sequence of events slightly changed
in cross
examination. She explained that the defendant hit her on the
head whilst she was looking down. She lifted
her head looking
for a key and warding off further blows with her arm. She was
hit above the left eyebrow and the stick cracked.
She bled and
could only see with one eye as they wrestled over the stick. He
then hit her on her leg.
[9]
She managed to free herself from his grip. She never fell and
hit her head on the stock kraal’s stonewall.
She denied
that she insulted the defendant or their father. She said at
some stage after the assault she became unconscious.
[10]
She confirmed that her eye became swollen. She said she had
injuries on the head and leg. She said she first went
to a
local clinic; she was then referred to Butterworth hospital.
Subsequently, she went to Cecilia Makhiwane hospital where
a surgery
was performed on her leg. She also consulted Dr Appavoo. She
said she did not hear the defendant’s
apology to her. At
criminal court it was the prosecutor and his lawyer who pleaded with
her.
[11]
The defendant and his relative, Mncekeleli Dumezweni testified in his
case. The defendant said after sunset he was summoned
by his
father from his own homestead within the same locality. He
found his parents in their rondavel. His father informed
him of
his intention to subdivide the parental site in order to allocate
land to Nomabandla. The plaintiff came in and out
as they were
having the said conversation. The plaintiff burst out and said
such a discussion, without the involvement of
the family, was
hypocrisy. She insulted them calling them snakes, liars, dogs.
She would not be refrained. He
got disturbed and became very
angry.
[12]
He gave a history of having been supportive to the plaintiff.
He said he contributed towards the payment of her school
fees and he
used to buy clothes for her. The plaintiff had become a source
of family disputes and differences. She
accused him of funding
his lifestyle with proceeds of monies received from burial societies,
as a result of relatives’ claims
payout. They reached a
point of not being in talking terms in 2015. The plaintiff was
expelled by her father; the plaintiff
had conceded the expulsion
during her evidence.
[13]
About the assault he said he apologised to her on two occasions.
At first it was in a meeting attended by their bothers
from
Ziwundwana, Idutywa. Dumezweni confirmed that. He went on
to state that the plaintiff had accepted the defendant’s
apology but said the defendant should not live closer to her.
The next was during criminal proceedings in court, after he
had been
convicted, in the presence of the prosecutor and his legal
representative. He tendered and gave the latter a sum
of
R5 000.00 as compensation, the plaintiff accepted the tender but
her legal representative said she never collected the
money.
[14]
The defendant confirmed that during criminal trial he pleaded guilty.
He said he signed his plea statement in terms of
section 112
of the
Criminal Procedure Act 51 of 1977
but he did not write it himself.
He thought he had said that he delivered only one blow. It was
pointed out to him that he
pleaded guilty to a charge of having
assaulted the plaintiff all over her body. He confirmed that he was
sentenced to three (3)
months imprisonment on condition that he did
not interfere with the plaintiff. He said he was still
extending his apology
to the plaintiff, the apology would heal the
family. As the eldest sibling he would still need to lead the
family.
[15]
On the events around the assault, he initially said the plaintiff
blocked his way out of the door. In cross examination
he
explained that the plaintiff was giving him her back, blocking him
and he hit her. The plaintiff ran and fell. He
also said
he hit her as she was moving away but he did not say that she bumped
against the stonewall kraal.
[16]
It was submitted on behalf of the plaintiff that the injuries were
consistent with the assault as alleged by the plaintiff.
The
doctor’s evidence that a blunt force was used to inflict
injuries, two of those not being capable of being caused by
falling,
was not challenged through another expert. The defendant had no
version about how the plaintiff could have sustained
other injuries,
other than the one in the leg. His accepted version that he
tendered in compensation, in criminal court also
supports that he
inflicted all the injuries alleged by the plaintiff.
[17]
Further, the defendant was inconsistent about the circumstances
around the assault. He said the plaintiff was standing,
he
changed to say she was running. His plea to the charge of
assault all over the body presented a different version altogether
to
the one in the pleadings which was also presented to the plaintiff in
court.
[18]
On behalf of the defendant, considering the concession by Dr Potelwa,
it was submitted that it is probable that the injury
in the forehead
was not caused by the assault. The plaintiff did trip and
fall. However, attorney for the defendant
conceded that had the
plaintiff not been assaulted she would not have suffered even the
other injuries, regardless of how the plaintiff
sustained them.
[19]
According to
Van der Walt and
Midgley
principles of delict 2
nd
edition at page 29 paragraph 31,
‘
To
found a claim in delict, a plaintiff must have suffered …
an injury to an interest of personality (injuria) or must
have
experienced pain and suffering.’ The prerequisite is that the
plaintiff must have suffered harm which was culpable caused
by the
defendant.
[20]
The defendant did not raise any defence regarding the alleged
wrongful conduct of assaulting the plaintiff. Similarly,
there
was no issue regarding the assault having caused the injury in the
leg.
[21]
During the hearing the court was appraised of the interaction between
the parties. The plaintiff communicated that
the matter
ought to be settled, in the light of the fact that the assault in the
leg was not in dispute. The court also engaged
with the
defendant’s counsel with regard to causation. The
defendant was of the view that his defence that only
one blow was
delivered ought to be pursued to finality. The other injuries
were as a result of the plaintiff falling down.
[22]
In
Plaatjies v Minister of Police
(CA 165/2021) [2022]
ZAECMKHC 8 (3 May 2022) paragraph 9 Nhlangulela DJP explained assault
as follows:
‘
assault
is the same under both civil and criminal law, criminal law, CR
Snyman:
Criminal
law 4
th
Edition (Lexis Nexis publication) in chapter XV1
defines assault as the offence consisting of unlawful and intentional
applying
force, directly or indirectly to the person of another, or
inspiring a belief in another person that force is immediately to be
applied to her … ’
[23]
In the present case assault is proved and no defence is put across to
seek to justify it. The evidence of doctor Potelwa
and the
plaintiff is probable in relation to the fact that the injuries were
inflicted by the defendant using a stick or blunt
object. The
defendant could not challenge this evidence. He had no version
about how the other injuries, not in the
leg, were sustained by the
plaintiff. His version was inconsistent even in relation to how
the admitted assault in the leg,
was inflicted.
[24]
The version about the injuries having been caused by hitting stones
in the kraal could not be sustained. Even if they,
indeed, were
subsequently caused by the plaintiff falling after she was hit, it is
difficult to understand how such injuries would
be separated from the
initial assault.
[25]
In
International Shipping Company (Pty) Ltd v Bently
1990 (1)
SA 680
at 700 E-I
‘
As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first is a
factual one
and relates to the question as to whether the defendant's wrongful
act was a cause of the plaintiff's loss. This has
been referred to as
'factual causation'. The enquiry as to factual causation is
generally conducted by applying the so-called
'but-for' test,
which is designed to determine whether a postulated cause can be
identified as a
causa sine qua
non
of the loss in question. In
order to apply this test one must make a hypothetical enquiry as to
what probably would have happened
but for the wrongful conduct
of the defendant. This enquiry may involve the mental elimination of
the wrongful conduct and
the substitution of a hypothetical course of
lawful conduct and the posing of the question as to whether upon such
an hypothesis
plaintiff's loss would have ensued or not. If it would
in any event have ensued, then the wrongful conduct was not a cause
of the
plaintiff's loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa sine qua
non
of the loss suffered, then no
legal liability can arise. On the other hand, demonstration that the
wrongful act was a
causa sine qua
non
of the loss does not
necessarily result in legal liability. The second enquiry then
arises, viz whether the wrongful act is
linked sufficiently closely
or directly to the loss for legal liability to ensue or whether, as
it is said, the loss is too remote.
This is basically a juridical
problem in the solution of which considerations of policy may play a
part. This is sometimes called
'legal causation'.
[26] In the
circumstances of this case the assault by the defendant caused the
plaintiff’s injuries. This court is of
the view that,
even if the infliction of the other injuries other than the admitted
one in the leg, had the initial assault not
occurred, the plaintiff
would not have suffered the then disputed injuries. The
defendant has no basis to escape liability
for all the injuries
suffered by the plaintiff.
In the result,
1.
The defendant is hereby held to be liable for all the plaintiff’s
proven
damages.
2.
The defendant is hereby ordered to pay the costs of the action to
date, on a
party and party. Scale B shall apply from the date
of the filing of the plea.
B
MAJIKI
JUDGE
OF THE HIGH COURT
Appearances:
Applicant’s
Attorney
:
Mr L
Mathanda
Instructed
by
: Messrs
L Mathanda Incorporated
66 Stanford Terrace Street
MTHATHA
Respondent’s
Attorney
:
Mr N S
Nombambela
Instructed
by
: Messrs N S
Nombambela Incorporated
No. 7 Beaufort Street
MTHATHA