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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: THE MINISTER OF SAFETY AND SECURITY

JOHN EMMANUEL BOESAK

And

DEAN CLINTON HENDRICKS

3. Case Number: 153/08

4. High Court: EASTERN CAPE DIVISION

DATE HEARD: 27/10/08

DATE DELIVERED: 18/12/08

JUDGE(S): JONES J, CHETTY J, PILLAY J.

LEGAL REPRESENTATIVES –

Appearances:

1. for the Appellant(s): ADV: Ford (SC) & ADV: Boswell

2. for the Respondent(s): ADV: Eksteen (SC)

Instructing attorneys:

1. Appellant(s): N. N. DULLABH & CO.

2. Respondent(s): WHITESIDES ATTORNEYS

CASE INFORMATION -

1. Nature of proceedings : APPEAL

Not reportable

In the High Court of South Africa

(Eastern Cape Division) Case No CA 153/2008

(Grahamstown High Court)

In the matter between

THE MINISTER OF SAFETY AND SECURITY First Appellant

JOHNNY AMMANUEL BOESAK Second Appellant

and

DEAN CLINTON HENDRICKS Respondent

Coram JONES, CHETTY AND PILLAY JJ

Summary Appeal – action for damages for physical injuries caused by an alleged assault on the plaintiff by a policeman – pleadings – denial of a wrongful and unlawful assault – admission in the plea of the occurrence of the cause of action in which the plaintiff sustained physical injuries, coupled with a confession and avoidance alleging the use of such force as was reasonable and necessary to avert an unlawful attack on the policeman by the plaintiff – onus on the defendant to establish the defence of private defence – on the facts the defendant failed to discharge this onus – insufficient credible evidence by the defence witnesses to satisfy the court on a balance of probabilities that the policeman had acted in lawful defence of his person when he inflicted the injuries – no basis for departing from the trial court’s acceptance of evidence which was destructive of the credibility and acceptability of the defence version of self defence – condonation of the late noting and prosecution of the appeal granted but appeal dismissed.

JUDGMENT

JONES J

[1] This is an appeal, with leave from the Supreme Court of Appeal, against a decision of Van der Byl AJ in the Grahamstown High Court in an action for damages for an alleged assault. At the commencement of the trial the learned judge ordered that the issue of liability be tried separately from and prior to that of the quantum of damages. After hearing evidence on the merits, he held that the defendants were jointly and severally liable to pay the plaintiff the amount of damages that he was able to prove. The liability issue is now before us on appeal. I shall for convenience refer to the respondent on appeal as the plaintiff. The Minister of Safety and Security was the first defendant and is the first appellant. I shall refer to the second appellant, the policeman who allegedly assaulted the plaintiff, as the second defendant.

[2] The plaintiff’s case was that he was assaulted in the early hours of 22 June 2003, and that he suffered disabling injuries in consequence which have left him with permanent brain damage and rendered him unemployable. The order appealed against was made on 2 October 2006. Leave to appeal was granted on 28 June 2007. It is common cause that the appellants did not prosecute their appeal properly in terms of the rules of court, with the result that by 30 October 2007 their appeal had lapsed. The matter was eventually set down for hearing on 27 October 2008. The appellants have applied for an order condoning their late notice of appeal and the late filing of the record, and they also seek an order re-instating their appeal. The plaintiff opposed condonation on the ground that the appellants have not shown sufficient cause. His opposition relied upon the degree of the appellants’ non-compliance with the rules, their weak explanation for their default, the weakness of their case on the merits, the plaintiff’s interest in the finality of the judgment and in bringing this litigation to an expeditious conclusion, and the prejudice to the plaintiff caused by delay, regard being had to his disabilities. For convenience, the merits of the application for condonation and the merits of the appeal were argued together. I shall deal with the condonation issue after pronouncing upon the merits.

[3] The trial was relatively lengthy. But the background and the issues on trial were not complicated, and the evidence is readily capable of brief summary. The plaintiff was a young man who graduated with a B. Sc. degree from the University of Stellenbosch in 2002. He wished to pursue a career in forensic science in the South African Police Services. He joined the police and was sent to the Police Training College at Graaff-Reinet in May 2003 for a four month basic training course. The second defendant, Inspector Boesak, was a physical training instructor at the College. The plaintiff was not one of his students, and although he knew who the second defendant was, they did not know each other.

[4] It was common cause at the trial that shortly after midnight on 22 June 2003 the plaintiff was found lying unconscious in the quadrangle behind College House, one of residences for students at the Police Training College. He had suffered head and facial injuries of such severity that he was unrecognizable. It was also common cause that he sustained those injuries at the hands of the second defendant. At issue on trial were the circumstances under which those injuries were inflicted. The plaintiff was unconscious until he regained his senses at the Panorama Medi-Clinic at Parow on 1 July 2003. He did not, however, recover his memory. His mind is a blank from an occasion in May 2003, when he remembers finishing the syllabus of one his courses, until sometime in July 2003 after he had become aware of his surroundings in hospital. He has no recollection of the events of 21 or 22 June 2003.

[5] The only direct evidence of what happened between him and the second defendant in the quadrangle that night was that of the second defendant. The second defendant testified that he acted in self defence. The issue on trial was whether his evidence of what happened was credible evidence which could be accepted as true on a balance of probabilities. The issue on appeal was whether or not the trial judge was justified in not accepting his evidence as true on a balance of probabilities.

[6] Although the second defendant was the only witness to testify about how the plaintiff came to be injured, a number of other witnesses gave evidence on collateral issues. The plaintiff gave evidence of his inability to contribute meaningfully to the dispute, and he called a number of witnesses to testify on his behalf about events that happened on the evening of 21 June 2008 at a place in Graaff-Reneit called the Sundowner, about the events later that night and on the following day, and about inconsistent admissions and statements made by the second defendant about what happened. They included evidence of (a) Dr Morkel, a neuro-surgeon who testified about the plaintiff’s injuries and his condition; (b) a friend and fellow student, one Nel, about an altercation between the plaintiff and the second defendant earlier on the Saturday evening; (c) Taylor, a fellow student, who found the plaintiff lying unconscious in the quadrangle; (d) Captain du Preez, whose evidence was confined to the training of student policemen and women in general terms; (e) the commanding officer of the Police Training College, Superintendent Swarbooi, who gave evidence about events at the college on the following Sunday, and about an explanation given by the second defendant; and (f) and (g) Inspectors Pietersen and Crawford, instructors at the college, who testified primarily about what the second defendant told them at lunch on the Sunday following the incident. The second defendant was the main witness for the defence, supported by Superintendent Mrwedi, Inspector Padayachee and Inspector Tamboer of the Police Training College about the altercation between the plaintiff and the second defendant at the Sundowner, the events following the plaintiff being injured in the quadrangle, and certain events at the college the following day.

[7] On the evening of Saturday 21 June 2003 an officially approved social outing had been arranged for students at the police college. It was to be held at a place of recreation at Graaff-Reinet called Sundowners, where the students could play pool in one section, and dance in another. The bar was open. The students were under strict orders to behave properly and not to abuse liquor. The outing was arranged by one of the instructors at the college, Inspector Padayachee, who had called in some of his colleagues, including the second defendant, to keep control of the students. The plaintiff and Nel were among the students who attended. They were taken to the Sundowners in buses at about 19h00. Later during the course of the evening some of the students became rowdy. There was an incident where one of them apparently broke a bottle. At about 22h30 Padayachee decided it was time to call it a day. Despite resentment from some of the students, he sent for the buses and ordered everybody home. The plaintiff and Nel went to the buses.

[8.1] What happened thereafter is the subject of a dispute. According to Nel, the plaintiff, who was something of a joker, stood on the steps in the doorway to the bus and jokingly called upon the women students to pay R5-00 for the ride home; the second defendant, for reasons known only to himself, took exception to the plaintiff’s conduct; he assaulted the plaintiff by slapping and punching him in the face, apparently without provocation; Padayachee and other instructors intervened immediately, the situation was defused, the plaintiff was put inside the bus, and the bus was driven back to College House where the students alighted. Some of them went inside; others remained on to the porch outside the front of the building.

[8.2] The second defendant gave a different account. His version, supported to an extent by Padayachee, was that the plaintiff had stood drunkenly in the doorway of the bus uttering obscenities and obstructing the other students from going inside. The second defendant went up to him and ordered him inside, whereupon the plaintiff head-butted him, causing injury to his lip. He slapped the plaintiff once in the face in retaliation. Padayachee came to his immediate assistance. The situation was defused. The plaintiff was put inside the bus and it departed for the college residences. He drove himself back to the residences, where he also lived in staff quarters in a wing of the same building as the plaintiff and other students.

[8.3] The trial judge did not regard it necessary to resolve the factual dispute about the Sundowner incident because, although it was on the probabilities the cause of the later confrontation, in his view it had no direct bearing on what happened in the quadrangle.

[9] It was by now going on for midnight. The incident at the Sundowner was obviously a talking point among the students on their return to their residence, and one of them remarked on noticing the second defendant’s motor car being driven in to the training college grounds after their arrival. In sequence, the story from then is taken up by the second defendant. His evidence was that he parked his vehicle in its usual place and then walked to the quadrangle behind College House, intending to enter the building through a door at the back which would take him to his room. It was dark in the quadrangle. When he got close to the door it opened and a person whom he was unable to identify but who turns out to be the plaintiff emerged from inside the building, rushed towards him uttering an obscurely worded threat, and attacked him with an object which the second defendant could not identify or describe other than to say it was sharp and shiny. This instrument caused an ugly open wound to his cheek which bled profusely. The attack and the injury to the face caused the second defendant to become momentarily dizzy, but he caught hold of his assailant by the front of his jacket and flung him sideways face first into the wall. The assailant came at him again and aimed a blow at him which he avoided. He managed to grapple with his assailant, turn him round so as to get him into a position where he was able to place his arms through the assailant’s arms and hold him in a headlock from behind. The two pitched forward and fell, the plaintiff striking his head or face on the concrete floor of the quadrangle with the second defendant’s full weight on top of him. The second defendant got up and looked at his attacker, whom he did not recognize in the dark. The attacker turned on to his back and looked back up at him. The second defendant felt blood pouring from his cheek. He turned and ran inside, using a different door and a different route to his room. He left his assailant lying in the quadrangle.

[10] Within what could not have been more than a minute or so Taylor went into the quadrangle and found the plaintiff lying unconscious on the ground in a seriously injured condition. His head and face were so swollen that Taylor was unable to recognize him. The alarm was raised, other students arrived, Nel identified the victim as the plaintiff, and the Graaff-Reinet police and an ambulance were called to the scene. Padayachee, who had just come back from the Sundowner, was told of the injured student by the security officer at the gate and also went to the scene. So did the officer on duty at the police college at the time, Superintendent Mwrebi. The plaintiff was taken to hospital by ambulance. Some of these developments were brought to the attention of the second defendant. He had gone from the quadrangle to his room and from there to the bathroom to stem to the flow of blood from his wound. He then woke a fellow instructor, Inspector Tamboer, who was asleep in his room, told him that he had been attacked by a student, and asked him to make an entry in the occurrence book on his behalf. He also showed Tamboer his injury, which elicited the response that the attacker must have gone for the second defendant’s neck. Tamboer left and went to the quadrangle. By then the second defendant could hear sounds of a commotion outside. Tamboer returned and reported that it was not a good idea to make an occurrence book entry at that stage because the students did not know what had happened, and, if they found out, they may attack the second defendant or damage his car. The second defendant then went to bed.

[11] The cause of action in the particulars of claim was that on 22 June 2003 and at the Graaff-Reneit Police Training College the second defendant wrongfully and intentionally assaulted the plaintiff, alternatively wrongfully and negligently injured him by hitting him with a fist, throwing him against a wall and to the ground and trampling and falling upon him. The defendants took issue with this by alleging in paragraph 4 of the plea that in the early hours of 22 June 2003 the second defendant was wrongfully and unlawfully attacked and assaulted by the plaintiff, that the second defendant used such force as was reasonable and necessary in the circumstances to defend himself and avert the attack, and that in doing so the plaintiff was flung against a wall, and the second defendant fell on top of him. That the second defendant caused the injuries sustained by the plaintiff was common cause. The formal issue raised by these pleadings was proof by the appellants of the defence of self-defence. This boils down the whether or not the evidence by the second defendant established the allegations in paragraph 4 of the plea on a balance of probability. The court a quo did not accept the second defendant’s evidence of what happened. We are called upon to determine on appeal whether his conclusion is to be supported or set aside.

[12] Whether or not the onus in this case was discharged depends upon an assessment of the credibility of the second defendant as a witness. As Eksteen J (as he then was) reminded us in National Employers’ General Insurance v Jagers 1984 (4) SA 437 (E) 440 D-E, I-H, this onus can ordinarily only be discharged by the party on whom the rests adducing credible evidence in support of his case, which is another way of saying that the onus-bearing party must satisfy the court on a balance of probabilities that he and his witnesses are telling the truth and that their version is acceptable. The judgment emphasises that the estimate of the credibility of a witness is 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. The resolution of a dispute and the estimate of the credibility of a witness are further discussed in the judgment in Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie 2003 (1) SA 11 (SCA) at 14J-15E¹ where Nienaber JA is reported as follows:

To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c), the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.

[13] Mr Eksteen has argued on behalf of the plaintiff that, bearing these practice directives in mind, it is not possible for a court of appeal to depart from the trial judge’s rejection of the evidence of the second defendant in this case. The court’s impression of the second defendant’s veracity fell to be assessed in the light of the various factors set out by Nienaber JA, the most prominent issue relating to his credibility being his ‘external contradictions with established fact’ and ‘with his own extracurial statements’. Crucial to his argument was Van der Byl AJ’s acceptance of the evidence of Inspector Pietersen and Inspector Crawford that at lunch on Sunday, the second defendant had given a description to them of what had happened between him and the plaintiff in the quadrangle which was in total contradiction of his evidence that he had acted in self-defence, and which constituted an insuperable impediment to the acceptance of his evidence on the issue.

[14] Inspector Pietersen and Inspector Crawford were colleagues of the second defendant at the Police Training College. Pietersen was also a drill inspector. The plaintiff was one of his students. He had not been at the college when the students had their outing to Sundowners on the Saturday evening or when the plaintiff was injured early the next morning. He had been required to give evidence in court proceedings in the Western Cape and arrived back in Graaff-Reinet by bus at about 02h00 on that Sunday morning. Crawford fetched him from the bus station and took him back to his quarters at the college. Neither Pietersen nor Crawford knew anything about what had happened the previous night. They spent part of the next morning together, and they met up with the second defendant near the entrance to the instructor’s living quarters on their way to lunch. Pietersen noticed injuries to the second defendant’s face, and asked what had happened. The second defendant explained that he had fought with a student and that he had just come from the bathroom after washing the blood out of his running shoes. Pietersen and Crawford then went into the instructors’ dining room with the second defendant. The instructors had their own dining room but the food was served in the students’ dining room. Pietersen and Crawford fetched their lunch, and also food for the second defendant. Nobody else joined them for lunch. During lunch the second defendant gave a more detailed account of what had happened the previous night. Pietersen testified that he told them about being head-butted by the plaintiff at Sundowners, and then went on to relate what had happened after he got back to the college. He said that he had driven in through gate and past College House where he saw a group of students in the front; he parked his car and walked round behind the building; when he got behind the building, a student charged at him; the student hit him and there was a struggle; he grabbed the student, hit the student with a fist, and when the student fell to the ground he kicked the student until he saw his eyes pop out. Apart from minor discrepancies, the evidence of Inspector Crawford corroborated that of Inspector Pietersen in every material respect. They testified that after lunch they went to see the plaintiff in hospital because he was one of Petersen’s students. They were shocked at his appearance. He was unconscious, Crawford did not recognize him, and Pietersen said his face and head had swollen like a watermelon. On their return to the college they met Padayachee. They suggested that he visit the plaintiff, and that he should see to it that the matter was properly recorded in the occurrence book. They then went to the local game reserve to read the Sunday papers. On their way in they came across the dean of students at the college, Superintendent Van Rooyen, and her husband at the gate. Crawford told her of the injured condition of the plaintiff, of which she was unaware, and of the second defendant’s involvement, and also suggested that she visit the hospital. Superintendent Van Rooyen said that she would follow the matter up. They later went back to the college to find the students streaming to the hall to attend a meeting specially called by the officer in command, Superintendent Swarbooi as a result of the events of the previous night. They decided to attend. On their way they passed the commanding officer’s office where they saw the second defendant waiting outside. They spoke to him. He told them that he had decided to tell the truth. That was the last time they saw him. It was common cause that he left the police college and returned to his previous duties the following day.

[15.1] The second defendant’s only counter to the evidence of Pietersen and Crawford was to resort to the suggestion that it was a deliberate fabrication. He testified that although he had had lunch that Sunday with Pietersen and Crawford, the events of the previous night had not been mentioned, and that also present at lunch were Inspector Tamboer, Inspector Smal and, possibly, Inspector Padayachee. Padayachee denied being present, but Tamboer supported the second defendant.

[15.2] The defence suggestion of fabrication necessarily involves an orchestrated conspiracy. There is no evidential basis for a conspiracy. It is a purely theoretical suggestion with speculation its origin. Pietersen and Crawford did not know the plaintiff before he came to the police college, and they had nothing to do with him after they saw him in hospital on 22 June 2003. They have nothing to gain by committing perjury on his behalf. They were not among the witnesses which the plaintiff attorneys originally intended to call. Pietersen was first contacted by the plaintiff’s attorney during an adjournment of the trial caused by the unavailability of a witness. He did not know about the litigation until then. He was contacted two weeks before he gave evidence in August 2006, apparently about the condition of the lighting in the quadrangle and about training students in self defence. During consultation Pietersen was told what the defence was and he indicated that that is not what the second defendant had told him. That was when the plaintiff’s legal team first became aware of what the second defendant said to Pietersen at lunch on 22 June 2003, and that was when both he and the lawyers became of aware of the importance of Pietersen’s evidence. Crawford was not then available. She was not even in the country. She had been seconded to do duty in the Sudan. But she had two weeks leave which by pure coincidence enabled her to be brought to Grahamstown for this trial on the day before she gave evidence. In my view, the chances of a conspiracy in these circumstances are so remote that they can be dismissed out of hand. The possibility of a conspiracy was carefully investigated by the trial court, and was rejected for sound reasons.

[15.3] Mr Ford for the appellants sought to discredit Pietersen and Crawford by suggesting that their version was enveloped in a veil of suspicion, based primarily on their failure to come forward with it until so late in the day, and, in particular on their failure to tell their story to Padayachee when they spoke to him that Sunday afternoon. This argument was rejected by the trial judge, and, in my view, it is entirely without merit when regard is had to how the evidence unfolded. In any event, Crawford told Superintendent Van Rooyen about the second defendant’s involvement that very Sunday afternoon.

[16] Mr Ford recognized that an acceptance of the evidence of Pietersen and Crawford was destructive of the appellants’ defence. He therefore subjected their evidence to a thorough and vigorous cross-examination, and he made a painstaking and lengthy argument to the trial court in which he raised some fourteen criticisms of their credibility. In a careful survey of the evidence the court a quo considered each of these arguments, and came to the conclusion that they were without substance. He found that Pietersen and Crawford were trustworthy and reliable witnesses who made a good impression on him in the witness box and whose evidence was above suspicion. They, like the second defendant, were at the time instructors at the college. They were experienced police officers of long standing and were still members of the force when they testified, without an axe to grind or any interest in or bias towards the plaintiff or the second defendant, and without any reason to implicate the second defendant falsely. The trial court considered that it was entirely unrealistic for them to have sucked a story like this out of their thumbs years afterwards, or to have dishonestly contrived a story of this nature, especially so shortly before the hearing, and that if they had harboured ill will against the second defendant they were likely to have volunteered their evidence at an early stage instead of allowing it to be brought to the attention of the plaintiff’s attorney quite by chance at the last minute. The trial judge made strong findings of credibility and demeanour in their favour. In doing so he did not lose sight of differences in the detail of their evidence. But he properly regarded these as minor, and as the kind of discrepancies which one would expect after an interval of three years. He repeated in the judgment that the witnesses made a good impression and found that he could not detect the slightest hint of any conspiracy or any motive or reason or desire to implicate the second defendant falsely. As for Tamboer’s support for the second defendant’s version that he was also present at lunch and that the second defendant had not said what Pietersen and Crawford say he said, the trial judge found that Tamboer was an untrustworthy and lying witness who was clearly prepared to go out his way in an attempt to protect the second defendant at all costs. This finding was made after a thorough analysis of Tamboer’s evidence. In my opinion, it cannot be faulted. On the contrary, appears to be supported by a reading of the record. There were, in my opinion, a number of probabilities favouring the account of Pietersen and Crawford, such as the concern for the plaintiff which caused them to go to the hospital and to make a report to Superintendent Van Rooyen, and the fact that they fetched lunch for the second defendant, which had the effect of sparing him the ordeal of entering the student’s dining room during a period of time when he had expressed fear of being attacked by them. There were, on the other hand, no improbabilities which raise doubt about the veracity of Pietersen and Crawford’s version, and no probabilities which favour the second defendant’s version. At the end of the day, there were two mutually destructive versions before the trial judge about what happened at Sunday lunch on 22 June 2003. I am not able to fault the learned judge’s conclusion, made after a thorough consideration of all the evidence, that the only evidence on which he could place reliance on the issue was that of Pietersen and Crawford.

[17] Once the evidence of Pietersen and Crawford is accepted as true, Mr Eksteen is on strong ground in arguing that the appellants have not discharged the onus of proving self-defence. In the absence of a cogent and convincing explanation by the appellants (which was not forthcoming and is difficult to conceive), the admission by the second defendant that he had assaulted the plaintiff in the manner he described to them is so inconsistent with a version of self-defence that it excludes it entirely. In the face of this admission and its effect on the probabilities of the case as a whole, it is unthinkable that a court could bring in a finding that the appellants have adduced credible and acceptable evidence to satisfy the onus that what the second defendant testified happened between him and the plaintiff in the quadrangle can be relied on and accepted as the truth. They failed to discharge the onus. The plaintiff is accordingly entitled to his damages, and the appeal must fail.

[18.1] The strength the inferences to be drawn from an acceptance of the evidence of Pietersen and Crawford makes an in depth analysis of the other criticisms levelled at the second defendant’s evidence by Mr Eksteen unnecessary for the purposes of this judgment. These criticisms included inferences arising from the second defendant’s conduct in failing to report what had happened between him and the plaintiff that night or first thing the next morning, and from his unsatisfactory explanations for this omission; the inexplicable and material contradiction between his evidence and that of Tamboer on his behalf relating to the alleged reporting of the incident to Swarbooi just before the student meeting on the Sunday afternoon; various other incompatibilities and improbabilities, described by Mr Eksteen as internal contradictions in the content of his evidence, in respect of his evidence and the explanation given for his conduct, such as his denial of knowledge of an occurrence book at the gate, his use of the ‘student’ door at the back of College House although other instructors avoided using it to avoid fraternizing with the students.

[18.2] It is also unnecessary to deal in depth with the trial judge’s rejection of the evidence of Padayachee and Tamboer, and his conclusion that he could not safely rely on the evidence of Swarbooi or Mwrebi one way or the other in a resolution of the key issues in the trial. The trial court made no demeanour finding, adverse of favourable, in respect on the second defendant, but even assuming in his favour that he did not make a poor impression and that the other criticisms and probabilities are not conclusive against him, the finding remains that his evidence in court is so totally irreconcilable with what he said to Pietersen and Crawford, that it cannot be accepted.

[18.3] The ultimate conclusions in the judgment are based upon findings by the trial judge on his estimate of the credibility of the witnesses in the light of the evidence they gave, the versions they put up, and the probabilities. A court of appeal is unwilling to disturb the findings of fact and credibility made by a trial judge. This is because he has had the advantage of seeing and hearing the witness, making an assessment of the candour and calibre of their performance in the witness box, and forming an impression of their personality in relation to the probabilities and improbabilities of the case and the various versions of the issues in dispute. In the absence of a material misdirection, his findings of fact are presumed to be correct unless the court of appeal is convinced from a reading of the record that his evaluation of the oral evidence was defective and that his conclusions were clearly wrong (Kunz v Swart and Others 1924 AD 618, 655; Rex v Dhlumayo 1948 (2) SA 677 (A) 705 and the passages which follow; S v Francis 1991 (1) SACR 198 (A) 204e-f; S v Hadebe 1997 (2) SACR 641 (SCA) 645e-f); Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd 2002 (4) SA 408 (SCA). This is not one of those cases where the court of appeal is in as good a position as the trial court to draw inferences or to come to conclusions. The decision a quo was, inter alia, strongly influenced by the demeanour findings made in favour of Pietersen and Crawford, and against Padayachee and Tamboer. These cannot properly be disregarded in this appeal (Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) 623F; Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk 1974 (2) SA 450 (A) at 452A-B). They were fundamental to the ultimate decision of the trial judge that he could rely on the evidence of Pietersen and Crawford, that the evidence of the second defendant, Padayachee and Tamboer was untrustworthy, and that the defendants had not discharged the onus of proving that the violence used by the second defendant was reasonable, necessary and proportionate to an attack upon him by the plaintiff.

[19] Mr Ford submitted during his argument in reply that the judgment was vitiated by a misdirection which enables us to go behind the judge’s credibility findings on appeal. The misdirection was a finding of fact made by the trial judge that the second defendant had persistently kicked the plaintiff on the head while he lay on the ground. Mr Ford’s argument was that the issue of the second defendant kicking the plaintiff persistently on the head while he lay on the ground was not raised as a specific allegation against the defendant in the plaintiff’s pleadings, that it is not an allegation which was admitted in the plea and hence which attracted an onus, and that it was not part of the case the defendants were called upon to meet. I shall accept for present purposes that this was a misdirection. Indeed, Mr Eksteen made no counter submissions in this regard because he considered that the finding had no bearing on his argument. He accepted that the pleadings did not call for the trial court to make a finding on whether or not the second defendant kicked the plaintiff on the head, and he did not rely on such a finding. To that extent, he conceded that this finding of fact may be regarded as a misdirection. Be that as it may. It was not and cannot be a material misdirection which was relevant to the estimation of credibility and the evaluation of the oral evidence in this case. It was a conclusion on the facts made subsequent to and as a result of the findings of credibility made as part of the fact finding process. Having found, without misdirection, that the evidence of Pietersen and Crawford was acceptable and that the evidence of the second defendant, Padayachee and Tamboer was to be rejected, the learned judge drew two conclusions. One was that the second defendant exceeded the bounds of self-defence by kicking the plaintiff in the head as he lay on the ground. This may have been irregular; but if so, it was an unnecessary, and, in any event, an irrelevant mistake. The second conclusion was all that was necessary – that, by reason of the second defendant having been shown to be an unsatisfactory witness on the crucial issue, the defendants had not discharged the onus of proving self-defence. In the result, if this is a misdirection, it does not affect the estimate of the credibility of the witnesses or outcome of the proceedings.

[20] The question of the second defendant kicking the plaintiff on the head while he lay on the ground was the subject of a debate on whether the trial had misplaced the onus. In cases of damages for assault, the judgments in Mabaso v Felix 1981 (3) SA 865 (A) and Minister of Law and Order v Monti 1995 (1) SA (A) 35 place the onus on the plaintiff to prove the assault alleged in the particulars of claim unless it is admitted in the plea. Its admission in the plea is an admission of prima facie wrongful conduct, which, in the absence of justification on legal grounds, will entitle the plaintiff to damages for damage caused by the assault. The onus is on the defendant to prove any grounds of lawful justification, such as self-defence, upon which he intends to rely. In this case the plaintiff alleged that the second defendant assaulted him by hitting him with a fist, throwing him against a wall and to the ground, and by trampling and falling on him. The plea denies the hitting and the trampling. The onus therefore remains on the plaintiff in that regard. For the rest, the plea is one of confession and avoidance; it contains an admission that the second defendant threw the plaintiff against a wall and caused him to fall to the ground and then fell on top of him, but goes on to allege that this was done in lawful self-defence. In the factual complex before the court it was common cause, therefore, that the defendants admitted that the plaintiff’s injuries were sustained in this incident, and submitted that they were the result of the lawful use of violence inflicted by the second defendant in self-defence. The onus to prove this rested on the defendants. They failed to discharge this onus inter alia because the second defendant was proved to have made statements which showed beyond question that he did not act in self-defence. The issue was not whether or not the second defendant kicked the plaintiff on the head as he lay helpless on the ground. It was whether he previously said that he had done so, and, in that event, whether he can be believed when he subsequently testified that he acted in self-defence. Arguments based on an improper placement of the onus are in my view a red herring.

[20] The trial court’s ultimate finding was that on all the evidence, it was clear to him on the probabilities that the plaintiff and the second defendant were involved in a confrontation in circumstances in respect of which there is no clarity, and, further that the defendants had failed to prove that the prima facie wrongful use of force on the plaintiff during the course of the confrontation was not wrongful. In the light of that finding it is in my opinion unnecessary to deal with the argument that the defendants are entitled to an apportionment of damages in terms of Act No 34 of 1956. Prima facie, the strongly worded opinion of Van Heerden JA in Minister van Wet en Orde v Ntsane [1992] ZASCA 210; 1993 (1) SA 560 (A) at 570 B-D should be followed. In the passage cited the view is expressed that the legislature did not contemplate an apportionment of damages under chapter 1 in cases other than cases of contributory negligence. It is not necessary, however, to go into the issue. On the facts found by the learned judge a quo in this case there is in my opinion no basis for a finding of contributory fault or for apportioning damages based on contributory fault, even assuming that the Act is applicable.

[21] It is my conclusion, therefore, that the appeal cannot succeed.

[22.1] This brings me back to the question of condonation. The rejection of the appellants’ arguments on appeal does not necessarily imply that there were no reasonable prospects of success on appeal. But it can tend to show that those prospects were weak. This is such a case. Although leave to appeal was granted, which implies that there were prospects of success, a subsequent application for condonation may be refused on the grounds that those prospects were weak. Here, the appellants were faced with an appeal on fact where the trial court had made strong credibility findings in favour of the respondent’s witnesses and against the appellants’ witnesses, which included findings on demeanour. This makes the task of an applicant for condonation more difficult on the prospects of success leg of the enquiry. He is faced with a presumption that the findings of the trial court are correct, and with the rule that the court will not interfere with the judgment even if has a reasonable doubt about its correctness; it will interfere only if convinced that the judgment is clearly wrong. The result is that this is not one of those cases where the strong prospects of success can properly compensate for weaknesses in other elements of the condonation enquiry.

[22.2] Condonation is not granted unless the applicant shows good cause. Apart from embracing the prospects of success on appeal, the concept of good cause usually involves a consideration of the nature and seriousness of non-compliance with the rules, the sufficiency of the explanation excusing non-compliance, the importance of the issues to the parties, questions of prejudice, convenience, and the importance of the finality of judgments, and the importance of not bringing the administration of justice into disrepute because of unnecessary delay. These considerations, according to United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) 720 E-H), must be weighed against each other and against the prospects of success and it is axiomatic that condonation is not there for the asking. The applicant must make out a proper case for it. If he does not, the court may in its discretion refuse condonation despite the apparently strong prospects of an appeal succeeding.

[21.3] In this matter the explanation or excuse for the delay in prosecuting the appeal is unsatisfactory. An important consideration in cases such as this, where there is delay in bringing proceedings to a speedy conclusion, may be the question of prejudice to a plaintiff who is obliged to wait for the benefit of judgment because of his opponent’s dilatoriness. In this case the prejudice is real. This plaintiff claims compensation for what is obviously a very serious disability affecting both the quality of his life and his ability to earn a living. In this case leave to appeal was granted on 28 June 2007. Notice of appeal should have been filed by 30 July 2007, and copies of the record should have been prepared and served by 30 October 2007. The record was filed on 19 June 2008, some eight months later. The notice of appeal was filed even after than, on 3 October 2008, together with the application for condonation of its late noting. By then the appeal had lapsed. It was necessary not only to apply for condonation for late prosecution and late filing of the notice of appeal, but also for re-instatement of the appeal. In seeking to excuse the delay the applicant explains that due to the unfortunate situation of the record taking time to be transcribed, having regard to the change over of the transcription services of one firm by another, and because the court file was for some inexplicable reason not readily available in Grahamstown, most of the delays were not due the dilatoriness of the applicants or their attorneys. This is a lame and disingenuous allegation. The applicants refer to the sheer volume of the record (in excess of 800 pages) and that it was not prudent to incur the costs of transcribing the record until leave to appeal was granted. The fact of the matter is that the parties had arranged for a running transcript of the record during the trial, and that all but the last portion, some 63 pages, had already been transcribed and was available even before judgment was given. The applicant’s attorneys had prepared an application for leave to appeal to the trial judge, and a petition to the chief justice for leave to appeal. They must have had all documentation (except the last portion of the evidence) necessary for preparation of the record of appeal, including copies of court orders, judgments, pleadings, notices and exhibits in order to prepare a record at that very early stage, even if they could not find the original file in the registrar’s office in Grahamstown. It is difficult to see why the original file was necessary in the circumstances. In my view, it should have been a simple matter to prepare this record. The delay was appreciable. The explanation is hardly sufficient in the circumstances. Indeed, the question may be asked whether there is an explanation at all, other than that the attorneys did not do their work properly. A busy practitioner may get away with the excuse of pressure of work, or a change of secretary or similar excuses, for a short period, but delay as long as this is unacceptable. There is no basis for imputing any fault to the appellants. But there is no evidence from them to say that they had made enquiries or called for regular progress reports or did anything else which a prudent litigant might do as a layman to look after his interests. While the courts are reluctant to saddle a litigant with the results of his attorney’s inadequate handling of his litigation, there comes a point where the client can no longer hide behind it (Saloojee NO v Minister of Community of Development 1965 (2) SA 135 (A) 141C-D).

[22.4] This case comes close to a case where the client cannot hide behind the attorney’s handling of the matter. In considering the matter the court must be satisfied that the underlying motivation for the application for condonation is a bona fide desire for a decision by the appeal court on an issue of significance, and in reaching its conclusion it will balance the various considerations in an equitable manner so that, for example a weak explanation may be to an extent offset by good prospects of success. To show bona fides, it is not necessarily sufficient merely to allege that the applicant has desired or intended all along to continue with his appeal. The underlying reasons or motivation for the desire may be of considerable assistance to the court in the exercise of its discretion. In this regard the papers lack detailed motivation. But when I balance the various considerations referred to above, considerations of fairness and justice to both parties lead me to the view that, despite the shortcomings in the condonation application, this is not a proper case to penalize the respondents for their attorneys’ remissness. With a measure of reluctance I am of the view that condonation should be allowed, but that the respondents should be ordered to pay the costs of the application, including the costs of opposition.

[23] The following order will issue:

3. The application for condonation is granted.

4. The respondent is ordered to pay the costs of the application for condonation, which shall include the costs of opposition.

5. The appeal is dismissed with costs.

RJW JONES

Judge of the High Court

7 November 2008

CHETTY J: I agree.

D CHETTY

Judge of the High Court.

PILLAY J: I agree.

R PILLAY

Judge of the High Court

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