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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVION)

Case No: A474/06

Date: 16/05/2008

UNREPORTABLE

In the matter between:

MINISTER OF SAFETY AND SECURITY FIRST APPELLANT

MOSES KGALADI SEETE SECOND APPELLANT

And

EPHRAIM MOLOKO PHOOKO RESPONDENT

JUDGMENT

MAVUNDLA. J.

[1] This is an appeal against the judgment of the magistrate MJ Ramothopo delivered on the 9 January 2006, in terms of which damages were awarded against the appellants and in favour of the respondent, in respect of the first claim, in the amount of R 15, 000, 00 as the result of threats by the second respondent towards the appellant, and in respect of the second claim in the amount of R15, 000,00 as the result of defamatory words uttered by the second appellant towards the respondent.

[2] The respondent instituted an action at the Magistrate's Court at Mokopane. In his particulars of claim the respondent alleged, inter alia, as follows:

"5 AD CLAIM 1

On the 4th March 2004 at or about 10h00 am in Mahwelering Magistrate Offices the second defendant, unlawfully and intentionally threatened to beat the Plaintiff, which threat induced a serious emotional shock to the plaintiff."

7 AD CLAIM 2

On the 4th March 2004 at or about 10h00 am the Second Defendant unlawfully and intentionally uttered the following innuendoes defamatory statement towards the plaintiff that the Plaintiff is still learning,"

[3] The plaintiff had claimed damages, in respect of the first claim in the amount of R45 000, 00 and in respect of the second claim an amount of R55,000,00

[4] For purposes of convenience I shall hence refer to the parties as they are cited in the Magistrate's court. Consequent to a request for further particulars by the defendants, the plaintiff furnished further particulars with regard to what exactly the threat entailed, ("That the second Defendant will assault the Plaintiff,"); the exact words uttered, ("Mfana o sa ithuta (A chap you are still learning); the number of people who were present when the words were uttered, ("Except for the Plaintiff and the Second Defendant there were two other people in the immediate vicinity").

[5] The plea of the defendants was a general denial of the averments made, save for admitting that the second defendant spoke to the plaintiff on the day in question, and placing the plaintiff to proof of the allegations made.

[6] The plaintiff testified in his own account and called a witness Mr. Setseta. The summary of the evidence of the plaintiff is that the he was admitted as an attorney of this Court on 6 November 2003 and is employed as a professional assistant. He says that on 10 March 2004 (this date I assume it should be much earlier) two of his clients failed to attend court resulting in warrants of arrest being issued against his clients. He discussed the issue of cancellation of these warrants with the prosecutor who advised him to contact the investigating officer. He then contacted the investigator (the second defendant) and arranged with him to bring the relevant docket and warrants for cancellation of same to court on 4 March 2004. The second appellant indeed came to court but reneged from the agreement and wanted to arrest his clients. He approached the second appellant for the docket so that the warrants could be cancelled as he had already placed the matter before the Court. The second defendant then uttered the words "Boy, you are still learning." The respondent remonstrated with the second defendant who in turn said to him that he would "moer" him. The second defendant was seated at the time and he stood up still repeating the aforesaid words. He says that there were a lot of people during the incident. He retreated when the second defendant was approaching him at the time.

[7] During cross examination the plaintiff stated that the second defendant said "Young boy you are still learning". He told the second defendant not say to him that he is still learning. The second defendant, who was drunk started saying that he will "moer" him. He says that there were lots of people who witnessed this, including other police, attorneys and members of the public. He moved backwards when the second defendant was approaching him as he uttered the words. The second defendant was speaking in a loud voice and there were plus and minus 20 people who were about two to three meters away from him. He says two people confirmed to him to have heard the uttered words and these are his clients. When asked how he felt when threatened, he says that he was shocked because the second defendant had a firearm. He did not know what instrument the second defendant would use to assault him with. He further stated that he understood the words that he was still learning to mean that he is not a lawyer yet perhaps he is articled or a student or a law student but not yet a lawyer. He felt humiliated and degraded. The other people were two or three meters away when these words were uttered. He said, inter alia, that he did not report the second respondent to his superiors because the latter subsequently came to him asked him not to report the incident. He says that if the second defendant had asked him not to proceed with the civil action he would not have proceeded with it. He says that the second defendant apologized after about twenty minutes after the incident. He came to him and said that he would bring the docket and he should not lay a charge against him. He says that when the second defendant had said that he would "moer'; him and he stood up and pointed a finger at him and he felt threatened as the second defendant came towards him. The second defendant was aggressive at the time and he had to run away from him. He concedes that he might have said to the second defendant that he is illiterate. He immediately thereafter denied having used that word. When he was confronted with his earlier statement to the police, he concedes that he had used the word "illiterate" towards the second respondent. It was put to him that the second defendant will deny having threatened to "moer' or assault him. It was further put to him that the second defendant will admit having said to him that "You are still a learner, old chap." He says that he would admit this averment but the words were defamatory. It was put to him that the second defendant will deny that he was drunk. He further said that the words "Mfana, you are still learning" are not per se defamatory but the secondary meaning innuendo is.

[8] Mr. Setseta testified that on 4 March 2004 he was with Mr. Seete at Mahwelering when the second defendant came and said that he wants to arrest him. His attorney, the plaintiff, then came and asked for the docket. The second defendant then said that he wants to arrest him. The second defendant threatened to assault the plaintiff. The plaintiff then placed his right hand on his side and said he will shoot the plaintiff. The second defendant did not have his firearm at the time. He says that the second defendant was drunk at the time. He says that the second defendant said that the plaintiff is still a child.

[9] Under cross-examination Mr. Setseta said that the second respondent did not use the word "moer". According to him the second defendant had said that he would assault the attorney. He says that the second respondent said that the plaintiff is still a child, is still learning. He further states that the second defendant placed his hand on the side of his left hip and said that he would shoot the plaintiff. He further said that he heard the second defendant swearing at the plaintiff.

[10] The second appellant testified that on the day in question he attended at the magistrate's court at Mahwelering. He had taken dockets to court. He had with him warrants for the rest of two of the respondent's clients. According to him he wanted to arrest the two clients of the plaintiff. The plaintiff intervened saying that he cannot arrest his clients. The plaintiff, who was speaking in a loud voice in the presence of his clients and other people who were attending court, said to him that he is a fool of a policeman, and told his clients to go away. He then said to the plaintiff, in an African language, that the plaintiff is still a learner. According to him he uttered these words because he realized that the plaintiff did not know the purpose of a warrant of arrest. He denies having said to the plaintiff t that he would "moer" him. When his legal representative put to him what he meant when he uttered the words "Boy, chap, you are still a learner", he respondent by saying that he did not intended to defame the plaintiff. He says that the reason for uttering these words is because he realized that the plaintiff did not know the purpose of a warrant of arrest, and he was trying to assist him by so saying. He denies that the plaintiff walked up to him and said that they must forget the whole incident.

[11] Under cross-examination, he conceded that there were many people at the time of the incident. He denied that it had been telephonically arranged with him to bring the docket to court. It was pointed out to him that it had not been denied that it had been arranged with him telephonically to bring the docket. According to him he had gone to court to collect the docket and he then found the two clients of the plaintiff at court and he then wanted to arrest them. He says that the plaintiff said to him that he was a stupid policeman and not learned. When he was taken to task about this aspect he said that the plaintiff had said that he is a fool of a policeman and not learned. He denied that he was drunk on the said day. He denied that he threatened to beat the respondent.

[12] The magistrate considered the evidence of the plaintiff and his witness as well as that of the second defendant. The magistrate concluded that it was not fortuitous that the second defendant found the clients of the plaintiff at court when he decided that he must arrest them, but it was by arrangement with the plaintiff that he found them there. The magistrate found that the fact that the plaintiff had initially denied that he had used the word "illiterate" and later admitted having used it is a strange behaviour on his part but it does not make him a liar in respect of the words uttered by the second defendant who admits having used same. The magistrate found that the words were defamatory of the plaintiff. He also found that the onus resting on the plaintiff in so far as the second claim has been discharged and proceeded to award the damages in favour of the plaintiff, in the amounts already indicated herein above.

[13] It has been submitted by Mr. Bester on behalf of the appellants that this Court is at large to ignore the credibility findings made by the magistrate in respect of the plaintiff's claim arising from the alleged threat to beat the plaintiff made by the second defendant. In this regard he referred to the matter of R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705-706. Mr. Bester has further submitted that magistrate has misdirected himself in placing reliance on the evidence of the plaintiff and his witness with regard to this alleged threat of assault. It is further contended that the magistrate misdirected himself in finding that, in respect of this claim it has been proven that the threat was made and that the plaintiff has acquitted himself of the onus resting on him. Mr. Bester further submitted that there were various contradictions between the evidence of the plaintiff himself as well as between the plaintiff and his witness. It has been submitted that the magistrate misdirected himself in making favourable credibility findings about the plaintiff and his witness.

[14] Mr. Bester has further submitted that in his pleadings (paragraph 5) the plaintiff has alleged that the threat by the second defendant has "induced serious emotional shock to the plaintiff", there has been no evidence led to prove that the plaintiff suffered a recognized and detectable psychological injury as a consequence of having been threatened.

[15] Mr. Bester further submits that the plaintiff readily concedes that the words uttered ("Oh chap, you are still learning' or "young boy, you are still learning") are not per se defamatory. He submits that the ordinary meaning the words is not reasonably capable of conveying to the reasonable reader a meaning which defames the plaintiff. In this regard he refers to the matter of Mohamed v Jassiem [1995] ZASCA 115; 1996 (1) SA 673 9A) and Sindani v VandeerMerwe 2002 (2) SA 32 (SCA). He says that the words are not capable of the secondary meaning attributed to them by the plaintiff, namely that he is not a lawyer yet, but perhaps an articled clerk or a law student. He submits that the plaintiff has fallen short of proving any facts or circumstances warranting the innuendo relied upon by the plaintiff. In this regard he relies on Unie Volkspers Bpk v Rossouw 1943 AD 519 and Visse v Wallachs' Printing and Publishing Co Ltd 1946 (TPD) 441. He says that Mr. Setseta did not understand the words to be defamatory nor demeaning of the esteem of the plaintiff. He submits that the plaintiff has not proved any publication of any defamatory statement. He further submits that in respect of the quantum in both claims the magistrate misdirected himself in awarding the amounts which he did.

[16] Mr. Scheepers on behalf of the plaintiff has submitted that the evidence of the plaintiff and his witness must be looked at in its totality. He submits that although the evidence of the plaintiff and his witness is not without fault but on the whole it corroborates each other nonmaterial issues. He contends that the denial of the threat by the second defendant judged against his presence at court, according to his version was for purposes of collecting a docket for warrants of arrest, and the fact that the magistrate found that he was at court per arrangement, clearly shows that the threats were made. Mr. Scheepers further submits that in respect of the first claim, although the particulars of claim related to emotional shock the evidence was clearly that the plaintiff suffered humiliation and fear as the result of the threat of assault. He submits further that it was not necessary for expert evidence to be lead.

[17] In respect of the second claim, Mr. Scheepers submits that the plaintiff understood the words uttered to mean that he was not a lawyer but perhaps an articled clerk or a law student and he felt very much humiliated and degraded. He submits that it was not pleaded by the defendants that the words were not uttered with animus injuriandi. He submits that the remarks by the second defendant were reckless and his explanation does not justify an inference that it was made without animus injuriandi.

[18] In the matter of Swain v Society of Advocates, Natal 1973 (4) SA 784 (AD) at 787B-C the Appeal Court pointed out that it is trite that in respect of whether the court of first instance erred in its findings, in resolving a dispute of that nature, where the issue depends upon oral evidence, "the opinion of the trial court will not lightly be disturbed. To succeed the appellant is required to show that there were no grounds which could reasonably justify the exercise of the discretion against the appellant.

[19] In Rex v Dhlumayo and Another 1948 (2) SA 678 (AD) at p706, Davis AJA at 706, said;

"6. Even in drawing inferences the trial Judge may be in a better position than the appellate Court, in that he may be more able to estimate what is probable or improbable in relation to the particular people who he has observed at the trial.

7. Sometimes, however, the appellate Court may be in as good a position as the trial Judge to draw inferences, where they are either drawn from admitted facts or from facts as found by him.

8. Where there has been misdirection on fact by the trial Judge, the presumption is that his conclusion is correct; the appellate Court will only reverse it where it is convinced that it is wrong.

9. In such a case, if the appellate Court is merely left in doubt as to the correctness of the conclusion, then it will uphold it."

[20] With regard to the credibility findings, the attack is premised on the contradictions regarding the number of people who were present on the day in question, whether they were two or twenty. It is so that in his further particulars the plaintiff stated that save for himself and the second defendant, there were two people present. I understood the two people to be relating to the people who were within immediate¹ vicinity and who heard the words and these are his two clients. There were plus or minus twenty people in the vicinity. Considering the fact that it was at court premises, it is understandable that there would be a large number of people in the vicinity of the court. That there were more than two people present can be gleaned from the evidence of the second defendant who testified that the plaintiff called him a fool of a policeman, "When he was saying this, he was saying this loudly in front of his clients and other people who were attending court at Mahwelering.”² The evidence of the second defendant somehow corroborates the evidence of the plaintiff on the number of people who are present at the scene. I therefore do not find fault on the part of the magistrate having accepted the evidence of the plaintiff, notwithstanding some of the contradictions pointed out by the Mr. Bester. These contradictions are not that material to warrant that the evidence of the plaintiff must be thrown out of the window. It must be borne in mind that in civil matters the plaintiff needs to prove on a balance of probability his case³.

[21] The plaintiff also contradicted himself about whether he called the second defendant an illiterate. There are also contradictions about whether the word "moer" was used at all. The plaintiff's witness Mr. Setseta has denied that such word was used. The latter witness has also testified that the second witness placed his hand on the side of his right hip and threatened to shoot the plaintiff. The plaintiff stated that the second witness advanced towards him pointing a finger at him saying that he would "moer' him. In the matter of Mlifi v Klingenberg⁴ it was stated that:

"[77] The degree of proof required by the civil standard is said to involve a comparative rather than a quantitative test⁵. This has been formulated by Lord Denning as follows:

"It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say "we think it more probable than not", the burden is discharged, but if the probabilities are equal it is not.⁶

[78] 'Credibility of Witnesses' was the topic of 1984 Oliver Schreiner Memorial Lecture delivered by Judge H C Nicholas⁷ The learned Judge dealt succinctly with factors a court takes into account in assessing witness credibility, focusing on veracity, reliability and probability.

[79] On veracity and contradictions such as those which peppered the plaintiff's testimony, the learned Judge said the following:

'A witness is proved to be in error where his statements are contradicted by the proved facts or where he is guilty of self-contradiction. Where he has made contradictory statements, since both cannot be correct, in one at least he must have spoken erroneously. Yet error does not itself establish a lie. It merely shows that in common with the rest of mankind the witness is liable to make mistakes. A lie requires a proof of conscious falsehood, proof that the witness has deliberately misstated something contrary to his own knowledge or belief.’⁸

[80] On the point that human beings are liable to make mistakes, Judge Nicholas quotes Dr. William Paley, an eighteenth century philosopher:

'I know not a more rash or unphilosophical conduct of the understanding than to reject the substance of a story by reason of some diversity of the circumstances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experience of the courts of justice teaches. When accounts of transaction come from the mouths of different witnesses it is seldom that it is not possible to pick out apparent or real inconsistencies between them. These inconsistencies are studiously displayed by an adverse pleader, but oftentimes with little impression on the minds of judges. On the contrary a close and minute agreement induces the suspicion of confederacy and fraud."⁹

[81] There is no proof of conscious falsehood on the part of plaintiff or his witness. In order to reject plaintiff's evidence, more is required than pointing to contradictions; there must be proof that these contradictions were the result of deliberate and conscious falsehoods. Defendant furnished no such proof. In the absence of proof of deliberate fabrication I cannot find that the plaintiff's witnesses were mendacious and reject their evidence on this basis. Their contradictions are of such a nature that they are in all likelihood the result of honest mistakes.

[82] Where there is proof of a witness's mendacity on one or more occasions, this is not a ground for rejecting the witness's testimony in its entirety. The maxim falsus in uno falsus in omnibus (false in one thing false in all) has been rejected in South African law as unreliable and iIIogical¹⁰. Wigmore has said of the maxim:

'It is untrue to human nature. It is not correct that a person who tells a single lie is therefore necessarily lying throughout neither his testimony, nor that there is any strong probability that he is so lying. The probability is to the contrary.’¹¹

Consequently:

'All that can be said is that a witness whose evidence has been shown to be deliberately false on one point is liable to be regarded with suspicion and distrust, and the trier of fact may (not must) conclude that his evidence on the other points cannot safely be relied upon.¹²

And:

'Faith in a witness's testimony can be partial or fractional; evidence may be good in parts,"

[22] The plaintiff told the court that he discussed with his witness, Mr. Setseta, about the case. Mr. Setseta denied this aspect. In my view, Mr. Setseta has been shown to be lying. On the contrary the plaintiff, readily conceded where it was pointed to him about the contradictions on his evidence. I am of the view that it has not been demonstrated that the plaintiff's evidence was a deliberate false fabrication and that his version was so improbable that it must be rejected in its entirety as false.

[23] In my view, the magistrate was correct in his approach, considering the probabilities of the presence of the plaintiff and his clients at court and the improbability of a fortuitous presence of the second defendant at court on that morning. I am of the view that the magistrate was correct in his conclusion, that the plaintiff on probabilities has discharged the onus resting upon him in respect of both the first and the second claims that is in so far as proving that the second defendant committed the transgressions complained off. I shall herein below revert to the second claim. I shall proceed to deal with the first claim.

[24] In Principles of Delict¹³ the learned authors state that:

"An infringement of one's bodily integrity usually takes the form of an assault, but may also occur as a result of conduct falling outside the definition, for example where the injuries are sustained in a motor vehicle accident. In both instances, a person's absolute right to bodily integrity- physical and psychological- is infringed and depending on the circumstances, may give rise to patrimonial and non-patrimonial harm. The usual Aquilian principles apply to instances where patrimonial harm results, and the usual Germanic remedy principles apply to damages that are claimed for pain and suffering. An infringement, or assault, may in addition give rise to a claim under the action iniuriarum. In such instances, the mere assault, without contumelia, is sufficient to found a cause of action, but where assault has an added dimension in that one's rights to dignity and privacy are also infringed, and then additional damages can be claimed. "The learned authors at para36 page 44 point out that "Under Germanic remedy¹⁴ one can claim in respect of physical pain, mental distress, shock, loss of life expectancy, loss of amenities of life, inconvenience and discomfort, disability and disfigurement (and humiliation and sadness which arise there from).¹⁵ The plaintiff in casu specifically pleaded his action under the Germanic remedy and claimed not only for shock but characterized it as a serious emotional shock induced by the threat.

[25] In Barnard v Santam Bpk¹⁶ Van Heerden AJ said that a person claiming damages for shock must prove that he sustained a detectable psychiatric injury and musi as a rule bring supporting psychiairic expert evidence. In the matter of Road Accident Fund v Sauls¹⁷ Olivier JA said:

"[13] It must be accepted that in order to be successful a plaintiff... must prove, not mere nervous shock or trauma, but that she or he had sustained a detectable psychiatric injury. That this must be so is, in my view, a necessary and reasonable limitation to a plaintiffs claim. See Barnard v Santam Bpk 1999 (1) SA (SCA) at 208J­209A and 2116E".

[26] In casu the plaintiff did not lead any expert evidence regarding the nature and extent of the shock he suffered on the day in question. The only evidence he tendered in this regard is that he was frightened and still is. Since he alleged that the shock he suffered was of a serious nature, he was obliged to prove the extent of such seriousness. In this regard he failed. The magistrate, in the premises, misdirected himself in awarding the plaintiff the damages in the amount of R15, 000, 00 in respect of the first claim. In my view, the magistrate should have dismissed the plaintiff's claim in respect of the first claim.

[27] In the matter of Johnson v Beckett and Another¹⁸ Van Den Heever JA stated that:

"In all cases, the nature of the allegation made must determine whether the reputation of the person about whom it is made is tarnished as a result. Flemming J puts it thus in Kritzinger v Perskorporasie van Suid ­Afrika en Ander 1981 (2) SA 373 (O) at 384H:

‘Die uitgangspunt by laster is dat dit gaan om 'n skending van die benadeelde se ; sy aansien of agting in die oe van andere. Soos 'n geslypte diamant het die fama vele fasette wat saam die beeld na b uite bepaai. Beskadiging van enige faset het die potensiaai om 'n verminderde agting van die aanskouer vir die beeld na buite te veroorsaak en lasteraksie regverdig.'

"Our Court have long recognized that a man's reputation includes a general estimation of is professional competence. An aspersion on his competence in his calling may be sufficient to constitute defamatory matter, 'calculated to bring (him) into contempt, even though it may not reflect on his moral character' (Pitout v Rosenstein 1930 OPD 112 at 117). Which is what the inquiry is ultimately all about? Relevant cases are referred to in Burchell The Lawof in South Africa at 124-5."

[28] In respect of the second claim, it is not denied that the second defendant uttered certain words concerning the plaintiff. In his evidence in chief his legal representative put it to him whether he had uttered the following words: 'Boy, you are still a learner" and "Old chap, you are stilllearning"¹⁹. According to the Jordaan v Van Biljon²⁰ Rumpff JA said that where words published contain defamation, there arises a rebuttable presumption that the words were published animo injuriandi, i.e. with the intention to defame. In order to rebut the presumption the respondent can state that he did not have the intention to defame (animus injuriandi) and he must then allege in his plea facts upon which it can be inferred that he did not have an intention to defame. In the event the respondent succeeds to prove this privileged occasion, then the presumption of animus injuriandi is rebutted and the plaintiff can only succeed by proving that the respondent indeed had the animus injuriandi.”²¹

[29] In his plea the second defendant denied that he uttered any defamatory words. In his evidence he admits that he has uttered the words I have already indicated herein above. He says that he uttered these words because he realized that the plaintiff does not know about warrants and that he wanted to help him. But this defence was not disclosed in his plea. In the matter of Suid-Afrikaanse Uitsaaikoporasie v O'Malley²² it is pointed out that the use of defamatory words about another person is prima facie evidence of animus injuriandi and that the onus rest with the defendant to establish some lawful justification of the use of such defamatory language.

[30] In my view the circumstances under which the admitted utterances were made, are of importance. I accept the evidence of the plaintiff that the second defendant stood up and approached him, pointing a finger at him. This is corroborated by Mr. Setseta who says that the second defendant placed his hand on the side of his hip. The plaintiff had to retreat. So it cannot be said that when the second defendant uttered the words that the plaintiff is a boy still learning he wanted to help him as he did not know how a warrant works. He had a clear intention of ridiculing the plaintiff and show him to be an inexperienced attorney. Considering that the plaintiff is an admitted attorney, any reasonable right minded person, would have understood the words as implying that the plaintiff is an inexperienced incompetent attorney. To make such an allegation, especially under the circumstances²³ that prevailed at that particular moment, accepting that both concerned individuals were talking loudly at each other, is an innuendo that impacts negatively at the professional character of the plaintiff. There is no justification for such conduct on the part of the second defendant. In my view the plaintiff has succeeded in acquitting himself of the onus resting on him. On the contrary the defendants have, in my view failed to rebut the onus resting upon them to show that the second defendant did not act animo injuriandi. In my view the magistrate did not misdirect himself in finding in favour of the plaintiff in respect of the second claim.

[31] With regard to quantum, as indicated herein above the magistrate awarded damages in the amount of R15, 000, 00 in respect of the second claim. The question of damages is a matter in the discretion of the court. The Court bears in mind that the purpose of compensation is to placate the injured feelings of the plaintiff.²⁴ It can be accepted that the plaintiff is an adult person. To be addressing the plaintiff as 'Boy', is reminiscent of the contemptuous and arrogant attitude of the apartheid error when almost all of the white communities, and of course even some of those who were not classified as whites, both old and young, arrogantly and contemptuously referred to every adult African male as boy, and every adult African female as girl, irrespective of his/her age. To refer to an officer of this Court as "boy" is degrading and contemptuous and this cannot, and should not be tolerated. However, I am of the view that the magistrate in awarding an amount of R15,000,00 has rather gone too much over board. I am of the view that an amount of R8,000,00 is appropriate an amount.

[32] In casu the respondent filed his heads of argument on the very day of the appeal. His heads of argument were supposed to have been filed on the 14 April 2008. His counsel, submitted that to show the Court's displeasure, in the event the plaintiff were to be successful in opposing the appeal, the Court should not award him his costs of after the 14 April 2008. An explanation was however proffered that the heads had been prepared and forwarded to the plaintiff's correspondent attorney to have these filed with the registrar. The plaintiff should not be awarded the costs. I shall accept that the fault lied with the plaintiff's correspondent attorneys and not on his part. I shall not, therefore mulct him with costs.

[33] The defendants have been partially successful in the appeal regarding the first claim. The Defendants have been partly successful in respect of the second claim. The same can be said about the plaintiff in respect of the second claim. I am of the view that, in the circumstances the following order I am about to make with regard to the costs will be fair and appropriate.

[34] In the premises it is ordered as follows:

1. That the appeal in respect of the first claim is upheld with costs.

2. That the appeal in respect of second claim is partially upheld and no order as to costs is made.

3. That the order of magistrate MJ Ramothopo delivered on the 9 January 2006 is set aside and substituted with the following order:

"(a) That the plaintiff's claim in respect of the first claim is dismissed with costs.

(b) That in respect of the second claim the first and second defendant are jointly and severally, the one paying the other is absolved, ordered to pay plaintiff:

(i) an amount of R8,000,00

(ii) interest of 15,5% calculated from 04 March 2004 to date of payment.

(iii) costs of suit."

N.N. MAVUNDLA

JUDGE OF THE HIGH COURT

AND

I AGREE

A.M.L. PHATUDI

ACTING JUDGE OF THE HIGH COURT

HEARD ON THE: 29 APRIL 2008

DATE OF JUDGMENT: 16 MAY 2008

APPELLANTS' ATT: STATE ATTORNEY

APPELLANTS' ADV: MR. TWG BESTER

RESPONDET'S ATT: MR. NYOFU

DEFENDANT'S ADV: G.J SCHEEPERS.

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