SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A120/2024
In the matter between:
G[…] N[…] Appellant
And
A[…] S[…] N[…] Respondent
Neutral citation: N[…] v N[…] (A120/2024) [2025] ZAFSHC 160 (4 June 2025) .
Coram: Daffue and Daniso JJ
Heard: 18 November 2024
Delivered: 4 June 2025
This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand- down is
deemed to be 16H30 on 4 June 2025.
Summary : Court a quo dismissed a husband’s claims of assault and institution of
malicious proceedings against him by his wife at the time – appeal by the
unsuccessful husband – court of appeal dismissed the appeal with costs.
ORDER
The appeal is dismissed with costs , inclusive of the costs of counsel on scale A .
JUDGMENT
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Daffue J Introduction [1] A couple, married out of community of property for a short while, was in volved
in an acrimonious relationship. Prior to tying the knots of marriage they were in love
and respect ed each other , but soon after the marriage ceremony things started to
turn sour . In a strange turn of events the husband decided to institute action against
his wife to claim damages for assault and instigation of malicious proceedings . A
learned magistrate, seated at the Magistrate’s Court in Bloemfontein, dismissed the
husband’s claim s whereupon he decided to seek redress from the High Court on
appeal. More about this later.
The parties
[2] The unsuccessful plaintiff in the court a quo, Mr G[...] N[...], a captain in the
South African National Defence Force (SANDF) , is the ap pellant in these proceedings.
Adv LBJ Moeng appeared for him on instructions of Kramer Weihmann Inc,
Bloemfontein.
[3] The defendant in the court a quo, Ms A[...] S[...] N[...], is the respondent in the
appeal. She was represented by Adv PS Mphuloane in the court a quo and on appeal
on instructions of Mphatswe Attorneys, Bloemfontein. I shall herein later refer to the
parties as cited on appeal to avoid any confusion.
The appellant’s claim s
[4] The appellant instituted four claims against the respondent which can briefly
be summarised as follows:
a. claim 1, to wit assault in that on 29 July 2021 the respondent hit the appellant
with an earphone cable in respect of which the appellant claim ed damages in the
amount of R50 000 for pain and suffering for which he had to use medication for
approximately three days after the event ;
b. claim 2, insofar as later on the same day, the respondent assaulted the
appellant by hitting him with a w ooden stick in which case he claimed damages in
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the amount of R80 000 for pain and suffering; it is the appellant ’s case that in respect
of both alleged assaults he received treatment at the Pelonomi hospital ;
c. claim 3, in that on t he same day the respondent wrongfully and maliciously set
the law in motion by providing fals e information to members of the South African
Police Service (SAPS) at the Bloemspruit police station that the appellant had
threatened to obtain a gun with which he would shoot her , which caused the
appellant to be forcefully removed from his residence by the Tempe Military Police,
as a consequence of which he has suffered damages in the amount of R50 000 for
contumelia, deprivation of freedom and discomfort ; and
d. on/or about 3 November 2021, the respondent wrongfully and maliciously set
the law in motion by applying for and obtaining an interim protection order in
presenting false information which interim order was eventually and after
presentation of evidence dismissed on 13 December 2021, causing the appellant to
suffer damages in the amount of R50 000.
The respondent’s defences
[5] The respondent denied that she had assaulted the appellant as alleged, but
also alleged that the appellant was threatening her and that she reacted in self -
defence.
[6] The respondent alleged in respect of claim 3 that she had reported the
appellant ’s threatening behaviour to SAPS as she was afraid of him, but denied the
remainder of the allegations in the paragraphs under reply .
[7] In respect of claim 4 the respondent denied providing false information to the
court, but admitted that the interim protection order was dismissed.
The court a quo’s judgment
[8] The court a quo referred to the two mutually destructive versions of the
parties. It accepted that the appellant ’s evidence ‘was consistent ’, but found that he
‘recorded almost everything that transpired between them as a couple and
[presented] a well -collated events recordal of events ’, but he ‘presented bias on his
side of the story.’ The court a quo continued as follows:
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‘The plaintiff presented a person who wanted his will to prevail no matter what. Even Mr
Qwabe was concerned about his anger . It is even troubling that the D efendant had to live in
fear in her own house. New rules appeared to have been set by the P laintiff.’
[9] The court a quo was further more critical about the attitude of the appellant
and stated that although he was articulated, ‘the bias on his person and what he was
entitled to leaves a lot to be desired. ’ It continued as follows:
‘I got the impression from the Plaintiff that he calculated every move about their dispute. The
testimony of Mr Qwabe is telling if he can go as far as asking a department to substitute a
colleague because of the P laintiff.’
[10] The court a quo found on the probabilities that the appellant had failed to
prove the two alleged assaults and his two claims relating to the insti tution of
malicious proceedings. The court a quo referred to and considered the test
applicable to mutually destructive versions and the approach to be adopted as set
out in Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and
Others .1
[11] The court a quo decided to dismiss the action with no order as to costs ,
contrary to the general rule that the successful party is entitled to their costs . We do
not have to concern ourselves with that part of the order in the absence of a cross -
appeal.
The grounds of appeal
[12] I do not intend to fully quote the grounds of appeal . The following will suffice .
It is alleged that the court a quo erred in not considering crucial evidence by the
appellant that was not disputed by the respondent , such as that he had requested
the respondent to take him to hospital after he had been attac ked with a wooden
spoon ( not a wooden stick as pleaded in the particulars of claim ), that the
respondent grabbed him at a stage and banged his head against the wall , that the
1 Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others [2002] ZASCA 98; 2003 (1)
SA 11 (SCA) .
5
respondent’s neighbour was the cause of the disputes between the parties and that
a male colleague of the respondent interfered with the parties ’ household.
[13] It is also alleged that the court a quo erred to consider ing the evidence of
Pastor Qwabe whilst his version was never put to the appellant . The court a quo also
erred, so it is alleged , in finding that the appellant presented as a strong -willed
person who wanted his will to prevail no matter what and that the respondent lived in fear in her own hous e.
The applicable test on appeal
[14] It is well established in our law that the trial court is tasked with analysing and
evaluating the evidence, and that an appeal court is limited in its ability to interfere with the trial court’s conclusions, and may not do so simply because it would have come to a different finding or conclusion. The trial court has the advantage of seeing and hearing witnesses, which places it in a better position than a court of appeal to assess the evidence, and such assessment must prevail, unless there is a clear and
demonstrable misdirection. The A ppellate Division , relying on the frequently quoted
dicta in
R v Dhlumayo and Another (Dhlumayo) ,2 reiterated the trite principle in S v
Francis :3
‘This Court's powers to interfere on appeal with the findings of fac t of a trial Court are
limited . . . . Bearing in mind the advantage which a trial Court has of seeing, hearing
and appraising a witness, it is only in exceptional cases that this Court will be entitled
to interfere with a trial Court's evaluation of oral testimony .”
As the saying goes, he was steeped in the atmosphere of the trial. Absent any
positive finding that he was wrong, this court is not at liberty to interfere with his
findings.’ (References omitted.)
[15] More recently, i n Makate v Vodacom (Pty) Ltd4 (Makate) , the Constitutional
Court also considered the above principles in the words of Jafta J, writing for a
unanimous court :
2 R v Dhlumayo and Another 1948 (2) SA 677 (A).
3 S v Francis 1991(1) SACR 198 (A) at p 204; see also S v Pistorius 2014 (2) SACR 315 (SCA) para
30.
4 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC) para 37; AM and Another v
MEC for Health, Western Cape [2020] ZASCA 89; 2021 (3) SA 337 (SCA) para 8.
6
‘[37] … Ordinarily, appeal courts in our law are reluctant to interfere with factual
findings made by trial courts, more particularly if the factual findings depended upon
the credibility of the witnesses who testified at the trial ….
[38] In our system, as in many similar systems of appeal, the cold record placed
before the appeal court does not capture all that occurred at the trial. The
disadvantage is that the appeal court is denied the opportunity of observing
witnesses testify and drawing its own inferences from their demeanour and body
language. On the contrary, this is the advantage enjoyed by every trial court….’
[16] Having referred to the authorities, a court of appeal may often be in a better
position than the trial court, with the benefit of the full trial record, to draw inferences
particularly in respect of secondary facts. In Makate5 the Constitutional Court
reminded us as follows:
‘[40] But even in the appeal the deference afforded to a trial court's credibility findings
must not be overstated. If it emerges from the record that the trial court misdirected
itself on the facts or that it came to a wrong conclusion, the appellate court is duty -
bound to overrule factual findings of the trial court so as to do justice to the case.
In Bernert this court affirmed:
“What must be stressed here, is the point that has been repeatedly made. The principle that
an appellate court will not ordinarily interfere with a factual finding by a trial court is not an
inflex ible rule. It is a recognition of the advantages that the trial court enjoys, which the
appellate court does not. These advantages flow from observing and hearing witnesses as opposed to reading the cold printed word. The main advantage being the opportunity to
observe the demeanour of the witnesses. But this rule of practice should not be used to tie
the hands of appellate courts. It should be used to assist, and not to hamper, an appellate
court to do justice to the case before it. Thus, where there is a misdirection on the facts by the
trial court, the appellate court is entitled to disregard the findings on facts, and come to its
own conclusion on the facts as they appear on the record. Similarly, where the appellate court
is convinced that the conclusion reached by the trial court is clearly wrong, it will reverse it. ”
’
Evaluation of the evidence
[17] The court a quo correctly held that the appellant bore the onus to prove all
elements of the delicts, ie the two assault claims and the two claims relating to the
5 Ibid para 40; see also Louwrens v Oldwage 2006 (2) SA 161 (SCA) para 14.
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institution of malicious proceedings. A lthough the respondent relied on self -defence
in her plea, this must be s een in proper context. I t is apparent from her plea that she
denied assaulting the appellant. Consequently, the appellant had to prove the
assault . Only then would it be necessary to consider the plea of self -defence relied
upon to prove justification. If the action as alleged was admitted, reliance on self -
defence would attract an onus to prove that.6 This is not the case. The appeal might
have been considered differently if the respondent admitted the assault s.
[18] I accept that the cold record often does not reflect all that had happened in the
trial court, but in this case the record undoubtedly supports the conclusions arrived at
by the court a quo. I got a distinct impression from a reading of the record and the
transcripts relied upon that the appellant regarded himself as almighty , bearing in
mind his rank as Captain in the SANDF and the fact that he is legally trained. I got a
further distinct im pression that he is a treasure hunter. The two parties lived together
in peace in the respondent’s house prior to the marriage ceremony , but things
changed drastically once the parties married out of community of property with the
exclusion of the accrual system. The appellant became aware of the fact that he
would not have any right to claim an interest i n the respondent’s immovable property
which she had purchased long before the start of their relationship. It is and will
remain her property even in the event of a divorce or upon her demise.
[19] It is also apparent that the appellant is a jealous person. He did not respond
kindly to the n eighbourly relationship the respondent had with her male neighbour.
The evidence makes this clear. Furthermore, the appellant was dissatisfied with the
fact that the respondent , being a traffic officer , worked in shifts with a male
colleague. He clearly despised this situation.
[20] I am satisfied that the court a quo cannot be faulted for the remarks made
about the appellant. The mere fact that he went so far as to make tape recordings in
order to assist his case to be instituted is sufficient to show his intentions all along.
His attitude in his communication with the respondent as recorded by him speaks
volumes. He often addressed his wife as ‘madam.’ This is in my view quite extraordinary. His irritated and arrogant approach is clearly demonstrated in his
evidence and the recorded communication. He became aware that he would not be
6 Mabaso v Felix 1981 (3) SA 865 (A) p 876E -G.
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entitled to any pecuniary interest in the respondent’s immovable property as a
consequence of the marriage regime, unlike as he thought would be the case.
Consequently , he devised a sc heme to obtain money from the respondent . That
scheme collapsed in the court a quo and there is no reason to assist the appellant in
his endeavours to benefit to the respondent ’s detriment .
[21] Although the court a quo did not mention the appellant’s motive in launching
these proceedings, the following passage in his cross -examination is telling :
‘Mr Mphuloane: Y ou are claiming to have been assaulted but you did not even open
a case of an assault.
Mr N[...]: As I have testified to say that it is important then that issues first be resolved
within the family. Remember, the marriage was still very young so I had to get the
families together.
Mr Mphuloane: So now you are instituting … Why do you institute this action?
Mr N[...]: Okay, I am instituting the action because she has demonstrated, as far as I
am concerned, that at no stage did she ever intended to be my wife. She only wanted
certain benefits.’
Later on the cross -examination continued as follows:
‘Mr Mphuloane: You are instituting this proceedings today because you established
that she does not want to be your wife anymore.
Mr N[...]: No. she never wanted to marry me. She only wanted certain benefits, for
me to renovate the house and to put it at the standard where it is now.
Mr Mphulonae: So, that is why you are suing her ?
Mr N[...]: Correct .’ (emphasis added)
This passage must be seen in light of the totality of the evidence and what I
have mentioned in the previous paragraph. ’
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[22] In my view it is improbable that a grown- up man would find it necessary to be
admitted at a hospital in order to obtain medication and/or medical treatment for the
clearly minor injuries sustained by the appellant on his version. I have no doubt that
he went to the hospital , well- knowing that the respondent was on her way to report
his aggressive actions to her family and/or the SAPS. It was in any event extremely
arrogant to insist (if his version could be believed) that the respondent , the alleged
aggressor, should take him to hospital as if he was not in a position to drive there on
his own in his own vehicle. His version should have been rejected as false , or at
best, wholly improvable. In my view the version of the respondent pertaining to what
transpired between the parties relating to the earphone cable and the wooden spoon
are more probable as the court a quo found. The appellant did not file a claim for
assault after his head was allegedly hit against the wall by the respondent , but again,
this version appears to be improbable that and is just another example of the
appellant ’s motive to portray the respondent in a bad light .
[23] The evidence of Pastor Qwabe was not put to the appellant. In my view,
nothing turns around this in the circumstances . The appellant has shown himself to
be a jealous person. The many counselling sessions with the Pastor was never
denied. It became clear to the Pastor that the appellant believed that the
respondent’s male colleague was interfering with their marriage. Appellant’s attorney
had full opportunity to cross- examine the Past or and even reminded him of specific
issues raised by the appellant during the counselling sessions. Eventually the
appellant ’s attorney merely questioned the relevance of the Pastor’s evidence that
the appellant had threatened to kill the male colleague.
[24] Insofar as the claims based on malicious proceedings are concerned, I am
satisfied that the appellant did not prove the four requirements . In my view, the
actions of the respondent have always been bona fide in an attempt to ensure her
safety in view of the appellant ’s aggressive and violent behaviour. No finding was or
could be made that she acted without reasonable and probable cause, or that she
acted with malice, ie the intention to injure the appellant .
Conclusion
[25] The court a quo correctly found that the appellant failed to prove his case on a
balance of probabilities. Consequently , the appeal should be dismissed. There is no
10
reason why the costs should not follow the result. The successful respondent is
entitled to the costs of the appeal .
Order
[26] The following order is made:
The appeal is dismissed with costs, inclusive of the costs of counsel on scale A.
JP DAFFUE J
I concur
NS DANISO J
Appearances:
For appellant : LBJ Moeng
Instructed by: Kramer Weihmann Inc
Bloemfontein
For respondent : PS Mphuloane
Instructed by: Mphatswe Attorneys
Bloemfontein