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Erasmus v Camdeboo Munisipaliteit and Another (CA 315/2009) [2011] ZAECGHC 65 (7 November 2011)

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IN THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE


EASTERN CAPE, GRAHAMSTOWN


Case No.: CA 315/2009

Date Heard: 28 October 2011

Date Delivered: 7 November 2011


In the matter between:


PIETER ERASMUS …...............................................................Appellant


and


CAMDEBOO MUNISIPALITEIT …...................................First Respondent


S A JACK …..............................................................Second Respondent




JUDGMENT



EKSTEEN J:



[1] The appellant issued summons against the first and second respondents in the Magistrates’ Court for Graaff-Reinet in which he claimed damages arising out of an alleged assault upon him by the second respondent, a traffic official in the employ of the first respondent. The second respondent instituted a counterclaim alleging that he had been unlawfully assaulted by the appellant. The magistrate dismissed the appellant’s claim and upheld the second respondent’s claim in reconvention. The appellant approaches this court in an appeal against the magistrate’s decision. There is no appeal against the quantum of the damages which the magistrate awarded.



[2] The litigation arises from events which unfolded in Church Street, Graaff-Reinet, on 11 December 2007. The appellant had attended upon the premises of one F B van Zyl, a skin trader (hereinafter referred to as “Van Zyl”) in order to sell certain skins. The traffic in Church Street was heavy as it often is in that part of Church Street on a Friday. The appellant “double parked” bringing his vehicle to a stop in the lane of traffic thereby unlawfully obstructing the flow of traffic. He proceeded into the premises of Van Zyl to negotiate the sale of his skins. At this time the second respondent arrived on the scene to find the vehicle of the appellant unlawfully parked. He requested the appellant to move his vehicle to which the appellant indicated that he intended first to complete his business and would then move the vehicle. This did not satisfy the second respondent who insisted that the vehicle be removed immediately, failing which, the second respondent said, he would move it himself. When the appellant still persisted in his attitude that he wished to finish his business first the second respondent moved towards the vehicle in order to move it. Thus the scene was set for the altercation which followed.


[3] The appellant testified that the second respondent moved towards the appellant’s vehicle and opened the driver’s door whereupon the appellant closed it and indicated that he would move the vehicle when he had completed his business. Having done so he turned back towards the premises of Van Zyl. He says that the second respondent then stepped into his way, pushed him back and said to him “I am telling you, get into your vehicle and move it”. The appellant then told the second respondent to leave his nonsense and said that he would move his vehicle but that he was going to get his money first. The appellant thereupon turned and moved towards the rear of his vehicle where, he says, the second respondent again stepped into his path and this time the second respondent forcibly grabbed him by his shirt in front of the chest (“behoorlik vasgevat voor die bors”) and pushed him back telling him to get in (“klim”).


[4] The appellant says that he requested the second appellant to stop as he was hurting as a result of him recently having had a hip replacement. The appellant again turned and walked away, however, the second respondent persisted and again stepped in front of him, grabbed and pulled and pushed him. The appellant attempted, so he says, to break free and in this process his sleeve was torn and his watch fell to the ground.


[5] The version of the second respondent is markedly different. He testified that as he approached the appellant’s vehicle in order to move it the appellant advised him that if he touched the vehicle he would “see what the appellant would do to him”. Then, as he was about to put his hand on the door handle of the driver’s door the appellant grabbed him from behind in the vicinity of his neck and pulled him back. The second respondent lost his balance and was falling down and therefore grabbed onto the appellant’s arm as he was going down to soften his fall. In this process, he says, the appellant’s shirt tore. The second respondent rose back to his feet. The appellant, so the evidence goes, then grabbed him by the chest and pulled him closer. At this stage he also grabbed hold of the appellant, he says to defend himself.


[6] Van Zyl was called to testify on behalf of the second respondent. He says that he really did not want to become involved in this dispute. This much is borne out by the appellant. Appellant says that after the altercation set out above Van Zyl was standing nearby looking at him and the appellant said to him “Sakkie do you see what this man is doing?” (“Sakkie sien jy wat maak die man?”). To this Van Zyl responded that he had seen nothing and he did not want to be involved. It appears from the cross-examination that Van Zyl had adopted a similar attitude when Mr Bouwer, on behalf of the appellant, contacted Van Zyl with the view to testifying in the matter. Van Zyl ultimately yielded to pressure and testified on behalf of the respondents. Van Zyl was clearly a reluctant witness, but independent to the litigants.


[7] Van Zyl confirms that the appellant had come to his premises to sell skins. He says that after the transaction was completed and the appellant left the premises he noticed that the second respondent had parked his vehicle behind that of the appellant. The second respondent asked the appellant to remove his vehicle and thereafter, Van Zyl says, there was an altercation. He carried on with his business and did not see everything which occurred. He did initially say that what he saw was the beginning of the altercation, however, when questioned later by the magistrate he was not certain whether that which he observed was the beginning of their interaction. In reply to a question by the magistrate in this regard he said that he does not know what portion of the sequence of events he witnessed (“Ek weet nou nie wat is die begin en die einde en die middel nie Edelagbare, nee, nee, toe hulle nou ‘n argument gehad het of dit nou al voor dit begin het dalk”).


[8] What Van Zyl saw, however, according to his evidence, is that the appellant was facing towards his vehicle when he turned around towards Van Zyl and he grabbed the second respondent by his chest. He testified that the impression he gained was that the second respondent was performing his duty as a traffic officer and when he asked the appellant to move his vehicle the argument arose. He did not see the appellant grab the second respondent from behind. In cross-examination Mr Bouwer, on behalf of the appellant, put it to Van Zyl that it was the second respondent who had grabbed the appellant and that the appellant denied ever grabbing the second respondent by his chest. Van Zyl’s response was illuminating. He said:


Edelagbare u weet ek het nou die dag vir iemand gesê en ek mag seker dit nou nie sê nie maar u weet mnr Erasmus is ‘n groot man. Daar is nie sommer enige man wat aan hom vat nie en ek wil nou nie mnr Jack beledig nie maar hy is ‘n kleiner mannetjie. Ek dink dit sal ‘n bietjie gewaagd gewees het van mnr Jack om sommer te gryp aan mnr Erasmus. Ek dink iemand gaan tweede kom. Ek wil nou nie voorspellings maak wie gaan tweede kom nie maar ek dink dit kan vir my bietjie vergesog kom om te verwag dat mnr Jack, en ek beledig nou niemand daardeur nie, ek sê dit nou asseblief in die lig wat dit gesien moet word, ek dink dit sal ‘n bietjie gewaagd wees dat mnr Jack hom teen mnr Erasmus dalk te gryp of so. Ek dink hy gaan bietjie sleg tweede kom. Dit is my eerlike opinie so ek dink nie mnr Jack het die eerste gryp gegryp nie. Dit sê ek sommer reguit vir u.”


[9] It is common cause that after the altercation the appellant drove to the municipal offices and that the second respondent followed. There the appellant approached the second respondent’s superior, one Roode, to report the incident. Roode says that the appellant entered his office and showed him his shirt torn on the right sleeve. He said: “Look what Jack has done to me”. Shortly thereafter Jack also arrived. The appellant then gave an account to Roode of what he says occurred. He did not however allege that Jack had unlawfully assaulted him. The second respondent says that he invited the appellant if he believed that the second respondent had done anything wrong to lay a charge with the police. The appellant took up the invitation and did lay a charge with the South African Police against the second respondent. Nothing, however, came of this. Whilst it does not specifically emerge from the evidence the inference is that the prosecutor declined to prosecute.


[10] In argument before us it is argued that the contradictions in the second respondent’s testimony, counterclaim and statements should have been taken into consideration by the magistrate when assessing his credibility. The second respondent’s evidence should have been criticised as it was not forthcoming in examination in chief and most of it was elicited through cross-examination and the quality, integrity and independence of his recall, so it is argued, was particularly unimpressive.


[11] It is true that there are contradictions in the evidence of the second respondent and between his evidence and his police statement. There are also shortcomings in the evidence of the appellant. Some of these were specifically discussed by the magistrate. The onus to establish an assault, in the main claim, is on the appellant. Similarly, in the claim in reconvention, the onus rests upon the second respondent to establish his claim.


[12] It is apparent from the aforegoing that the magistrate was faced with two mutually destructive versions which are irreconcilable with one another. The approach to evidence in cases of this nature was considered in National Employers’ General Insurance Company Limited v Jagers 1984 (4) SA 437 (E) at 440D-G where it was stated:


It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.”



[13] Later in the same judgment, at 440I-441B the following is said:



It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry … it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities.”



[14] It is apparent from the judgment of the magistrate that he adopted this approach to the evidence. He recognised that he was required to make a credibility finding in order to determine which of the two versions to accept. In doing so he had regard to the probabilities of the case and concluded that the probabilities favoured the version of the second respondent. Whilst he did not articulate the ultimate finding in the words utilised in the Jagers’ case, supra, I think that the inevitable conclusion drawn from the judgment is that he found the version of the second respondent to be “true and accurate and therefore acceptable” and therefore that the version of the appellant is “false or mistaken and falls to be rejected”.


[15] It has long been recognised that a court of appeal will be reluctant to interfere with the credibility findings of the court of first instance. This was recently confirmed in S v Leve 2011 (1) SACR 87 (ECG) where Jones J reiterated the fundamental rule that a Court of Appeal should not “depart from the trial court’s findings of fact and credibility, unless they are vitiated by irregularity, or unless an examination of the record of evidence reveals that those findings are patently wrong”.


[16] In Minister of Safety and Security v Craig and Others [2010] 1 All SA 126 (SCA) at 136 Navsa JA sought to place this consideration in context where he stated at paragraph [58]:

[58] Although courts of appeal are slow to disturb findings of credibility, they generally have greater liberty to do so where a finding of fact does not essentially depend on the personal impression made by a witness’ demeanour, but predominantly upon inferences and other facts and upon probabilities. In such a case a court of appeal with the benefit of a full record may often be in a better position to draw inferences.


[59] In the present case, as demonstrated above, the credibility findings are not borne out by the record … “



[17] It seems to me accordingly that as a general rule this court should be slow to interfere with the factual and credibility findings made by the court below. It is true that the magistrate did not make any demeanour findings in this case. I am, however, of the view that in the present matter the findings of the magistrate are indeed borne out by the record.


[18] It is true, as I have recorded above, that there are a number of shortcomings in the second respondent’s evidence. He was thoroughly cross-examined on every conceivable minutia of the event which was a moving scene of limited duration and it had occurred almost eighteen months prior to him testifying. I think it is to be expected in these circumstances that there would be a measure of uncertainty as to the minor detail relating to the particular movements of role players and words spoken during the altercation. Many of the alleged contradictions referred to in the notice of appeal have bearing primarily on the quantum of damages and have no impact on the reliability of his version of the event. The version of the second respondent does provide a perfectly feasible explanation for the damage to the appellant’s shirt sleeve and the dislodgement of his watch. I think that the magistrate correctly held that the version of the appellant does not provide a probable explanation for this. I shall revert below to the probabilities.


[19] On behalf of the appellant it is further argued that the version of the events testified to by Van Zyl did not support the version of the second respondent and is not reconcilable with such version. For this reason it is argued that if the magistrate accepts the version of Van Zyl then it would have necessitated that the second respondent’s version would have to be rejected and the counterclaim should have dismissed. I do not agree with this submission.


[20] I have referred above to the evidence of Van Zyl. He was indeed an independent witness who was reluctant to become involved. He did, on his own admission, not see everything which occurred outside his premises. He had made no statement after the event and testified purely from memory. He says that he saw only part of the altercation and he was constrained to concede, contrary to his initial inclination, that he is unable to say whether the altercation had started prior to his first observation. What he saw, however, was the appellant grabbing the second respondent by the chest. If one accepts his concession that what he saw may not have been the first contact, as I think one must, then his observation is indeed corroboration for the version of the second respondent. The second respondent testified that after he had been grabbed from behind and had fallen to the ground the appellant grabbed him by the chest and pulled him closer. This appears to me to accord with the observation of Van Zyl. I think that the evidence of Van Zyl in respect of his observations is indeed reconcilable with that of the second respondent.


[21] It is further argued that the magistrate had inappropriately and incorrectly relied on the opinion of Van Zyl that the second respondent could not have assaulted the appellant. The evidence of Van Zyl in this regard is quoted above. I do not think that the passage quoted above constitutes so much an opinion, rather it is a euphemistic (and perhaps sarcastic) expression of the obvious and striking disparity in the physical size and strength between the appellant and the second respondent. Indeed where the magistrate refers in his judgment to this evidence he confirms that this is supported by his own observation. This observation of the obvious inequality of size and strength is, in my view, an important consideration in the assessment of the probabilities. It follows that I do not agree that the magistrate acted inappropriately or incorrectly in having regard to this passage of evidence.


[22] Ms Watt, on behalf of the appellant, argues that the fact that the appellant immediately went to lay a charge of assault against the second respondent is a factor which militates in favour of the acceptance of the appellant’s version. It was submitted that the appellant would not have done so if the second respondent’s version was true. This argument fails to recognise that the evidence of the second respondent was that it was he who had advised the appellant at the municipal offices to go and lay a charge if he believed that he, the second respondent, had done anything wrong. It seems to me, by parity of reasoning, that he would not have done so if the appellant’s version was true. In any event nothing came of this complaint. As indicated before the inference to be drawn is that the prosecutor saw no merit in the charge. In all the circumstances I do not think that the fact that the appellant laid a charge is a consideration which could significantly affect the probabilities one way or another.


[23] In all the circumstances I think that the magistrate was correct in holding that on a preponderance of probabilities the version of the second respondent is true and accurate and therefore acceptable. It follows, as night follows day, that the version of the appellant falls to be rejected.


[24] Ms Watt, on behalf of the appellant, argues, however, that the second respondent’s counterclaim was based on pain and suffering and the violation of his honour, dignity, physical integrity, reputation and contemelia. During argument the second respondent’s legal representative advised that he would place no reliance on pain and suffering. Ms Watt submits that it was the evidence of the second respondent that he did not take the incident “too seriously” and it did not bother him. This being so, she argues, that the second respondent did not prove his case that the appellant violated his honour, dignity, physical integrity, reputation or contemelia.


[25] The argument is fallacious. On an acceptance of the second respondent’s version as set out above he was grabbed from behind, his progress was inhibited and his balance disturbed to such an extent that he fell over backwards and was required to support himself by grabbing onto the arm of the appellant. When he rose up the appellant grabbed him by the chest and pulled him closer. This clearly is a violation of his physical integrity and for that reason alone I think that the magistrate was correct in holding in favour of the second respondent. In addition the second respondent testified that he did indeed suffer physical harm in the form of bruises on his arm which he sustained whilst falling down. He further testified that the incident made him feel sad and quite angry as members of the public thereafter ridiculed him as he attempted to perform his duties.


[26] I do not think that it is necessary to consider in any detail the further evidence relating to the consequences of the assault as no appeal has been lodged against the quantum of damages awarded. I am satisfied, however, that the magistrate correctly held that the second respondent has established his case.


[27] In the result I would make the following order:


1. The appeal is dismissed;

2. The appellant is ordered to pay the costs of the appeal.



_________________________

J W EKSTEEN

JDUGE OF THE HIGH COURT


DAMBUZA J:


I agree, it is so ordered.



____________________________

N DAMBUZA

JUDGE OF THE HIGH COURT


Appearances:

For Appellant: Adv K Watt instructed by Messrs Nolte Smit, Grahamstown

For Respondents: Adv J Kincaid instructed by Neville Borman & Botha, Grahamstown