IN THE EASTERN CAPE HIGH COURT, GRAHAMSTOWN
CASE NO:  3091/09
In the matter between:

VAN RHYNER 	Applicant

and

MINISTER OF SAFETY AND SECURITY	Respondent

______________________________________________________________________
JUDGMENT – LEAVE TO APPEAL

Y EBRAHIM J:
[1]	The applicant seeks leave to appeal against the whole of the judgment of this Court, including the order for costs, handed down on 24 February 2011.  The judgment was in the action instituted by the applicant (as the plaintiff) against the respondent (as the defendant) in which the applicant claimed damages for an alleged assault by an employee of the respondent.  For the sake of convenience I shall refer to the parties as cited in the action.

[2]	The grounds on which the plaintiff seeks leave to appeal were summarised by Mr Cole, who appeared for the plaintiff, and the gist thereof was that the Court erred:

(i)	in finding that the plaintiff’s version of events, which was the only one before the Court, was improbable in spite of the defendant not having called Cornelius Van Niekerk (the person whom the plaintiff alleged had assaulted him) to testify in rebuttal thereof;

(ii)	in finding that the applicant and his daughter, Annamarie Van Rhyner, were not credible witnesses and that her testimony did not corroborate the plaintiff’s testimony;

(iii)	in determining that the plaintiff was not a credible witness by placing reliance on the summary of the opinions of the plaintiff’s expert witness, set out in a Notice in terms of Rule 36 (9)(b), when the expert witness had not testified.

[3]	Mr Jooste, who appeared for the defendant, submitted there was no reasonable prospect of an appeal succeeding.  The submissions of both counsel should become apparent when I address the respective grounds.  I proceed to deal with these grounds.

[4]	Mr Cole contended that in the absence of any other version the Court was obliged to accept the plaintiff’s version despite ‘its warts and with its bruises’.  In the view of Mr Cole the approach the Court had to adopt to uncontradicted evidence held significant legal implications and warranted the attention of the Supreme Court of Appeal.  He contended further that the Court had to draw an adverse inference from the failure of the defendant to call Van Niekerk to testify in rebuttal of the plaintiff’s evidence.  The only reason for not calling this witness, so Mr Cole argued, was that the defendant knew his evidence would have been detrimental to the defendant’s case.

[5]	Mr Jooste pointed out, quite correctly, that the question of how uncontradicted evidence was to be assessed did not merit any further attention from the Supreme Court of Appeal (‘SCA’) since it was fully addressed in the recent decision of McDonald v Young where the SCA restated what the correct approach was to such evidence.  Mr Jooste contended that in the instant matter the Court had not erred in its assessment of the plaintiff’s evidence.

[6]	I agree with the submissions of Mr Jooste.  The plaintiff’s testimony and that of his witness was of a poor quality and there were numerous improbabilities and inconsistencies in their stories of what supposedly occurred.  In my view, they did not tell the truth.  Since the plaintiff had not discharged the onus resting on him, the defendant bore no onus to adduce the evidence of Van Niekerk in rebuttal of the plaintiff’s allegations.  In any event, the Court found the defendant’s witness to be honest, his evidence reliable, and that he had told the truth.  His evidence established that the plaintiff had been untruthful in claiming that Van Niekerk assaulted him by throwing him onto a nearby table as the table was not positioned in the immediate vicinity where the alleged assault occurred.  It was therefore not possible for the plaintiff to have been assaulted in the manner he alleged. I consider Mr Cole’s argument to be misplaced and find this ground to be without merit.

[7]	There is also no merit in the submission that an adverse inference had to be drawn from the fact that the defendant did not call Van Niekerk to testify.  It is clear that whether or not an adverse inference should be drawn ‘must depend in large measure upon “the particular circumstances of the litigation” in which the question arises.’  It should be apparent from my judgment, and as I have stated previously, that the quality of the plaintiff’s evidence was such that the plaintiff had not discharged the onus that rested on him.  In short, the case presented by the plaintiff did not reach the standard of proof necessary to demand a reply from the defendant.

[8]	The issue of the credibility of the plaintiff and his daughter and the reasons for the Court concluding that they were not credible witnesses was amply addressed in the judgment and I do not deem further comment necessary.  Suffice to say, there is no reasonable prospect that another Court would reach the conclusion that they were credible witnesses and their evidence reliable and, in spite of the improbabilities and inconsistencies in their accounts of events, their evidence should have been accepted as the truth of what occurred.

[9]	The submission that the Court erred in relying on the opinion of the expert witness, who did not testify, in determining the credibility of the plaintiff disregards that the Court was dealing with the plaintiff’s replies to propositions put by Mr Jooste on the basis of the proposed testimony of the expert witness.  But, even if the Court was incorrect on relying on this evidence there were nevertheless numerous instances which clearly demonstrated that the plaintiff had not furnished honest replies in describing the effects the pepper spray had on him when it was supposedly sprayed in his face.  On the basis of the evidence as a whole the inevitable conclusion was that the plaintiff was an untruthful and unreliable witness.

[10]	It should be apparent from the Court’s judgment that the plaintiff contradicted not only his own evidence but also the testimony he gave in the criminal trial (in which Van Niekerk was the accused).  In addition, he contradicted essential averments of the particulars of claim of the summons, which were based on his instructions to his attorney, including allegations he levelled against Van Niekerk in the statement he made to the police when laying a criminal charge.

[11]	The judgment abounds with examples of contradictions, inconsistencies and improbabilities in the testimony of the plaintiff.  Even if the Court erred in taking account of the summary of the expert’s proposed evidence it does not warrant the conclusion that the Court’s finding that the plaintiff was an untruthful witness was without foundation.

[12]	In the circumstances, I am not persuaded that there is a reasonable prospect another Court would reach a decision different to that reached by this Court.  It follows that the application for leave to appeal must fail.  In regard to costs, I find no reason for costs not to follow the result and such an order will ensue.

[13]	In the result, the applicant’s application for leave to appeal is dismissed with costs.

_________________________
Y EBRAHIM 
JUDGE OF THE HIGH COURT 	1 AUGUST 2011

Handed down on: 	4 August 2011
Counsel for the applicant: 	S H Cole
Attorneys for the applicant: 	Wheeldon Rushmere & Cole
GRAHAMSTOWN

For the respondent: 	P E Jooste
Attorneys for the respondent: 	G M Yeko
GRAHAMSTOWN

VAN RHYNER v MIN of SAFETY and SECURITY.LAPJ