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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A939/14

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

DATE: 28/11/2018

THE MINISTER OF POLICE                                                               Appellant

and

ZT SCHOLTZ                                                                                     Respondent

JUDGMENT

VAN DER WESTHUIZEN, J

[1]          The appellant appeals against the judgment and order delivered by Goodey, AJ on 30 July 2014 in terms whereof the court a quo held the appellant liable for an assault effected upon the respondent by members of the South African Police Services whilst acting within the course and scope of their employment with the appellant. Damages were awarded to the respondent in the amount of R 100 000.00.

[2]          Leave to appeal was granted by the court a quo only in respect of the award of damages. Subsequently, the Supreme Court of Appeal granted leave to appeal against the finding on the merits.

[3]          The judgment of the court a quo is fairly terse. It is barely a two page judgment. The crux of the judgment is stated as follows:

“Hulle kom neer op ‘n blote ontkenning en die feit is net, nou moet die twee weergawes teen mekaar opgeweeg word. Die waarskynlikheid is aan die eiser se kant. Die eiser het 'n meer waarskynlike weergawe gegee en is boonop gestaaf deur ‘n onafhanklike getuie, Mev Cupido, dat Kaptein George horn aangerand het. Dit het sy duidelik gesien.”

[4]         It is impossible to ascertain from the judgment of the court a quo the facts that were considered by the court and how it came to the conclusion to which it did it.Further, it is clear from the foregoing quote that the court failed to explain or record what the probabilities were and how those impacted on all the evidence tendered.

[5]          The court a quo further failed to record in what manner those probabilities supported the evidence of the respondent and how those probabilities impacted on the evidence of Ms Cupido. The court a quo further failed to state of which part of the respondent's evidence Ms Cupido’s evidence was supportive.

[6]          The so-called independent witness is the land lady of the respondent (plaintiff). From the evidence of both the respondent and Ms Cupido it is clear that the latter was not and could not have been an independent witness . No findings are recorded by the court a quo that would point to the independence of Ms Cupido as a witness and why her evidence is to be preferred above that of the appellant’s witnesses.

[7]          Further in this regard, the court a quo did not deal with, nor analysed and evaluated the evidence of Captain George and recorded why his evidence could not be accepted on the probabilities.

[8]          A reading of the record reveals that the respondent gave various versions of how the assault came about. In the first instance, his evidence is that upon arrival of the police, he was summarily assaulted. Under cross-examination, the respondent conceded that he was told to lie down and his hands were cuffed, after which the assault occurred. Ms Cupido was not present and did not witness those alleged assaults.

[9]          In contrast to that evidence, the appellant's witnesses testified that a search warrant was obtained prior to the arrival of the police at the premises. Three task groups were involved: the National Intervention Unit, the breaching unit to secure the premises; the Crime Intelligence Unit, that would gather information for future use and of which Captain George was a member; and lastly members of the Kuilsrivier, Umfuleni and Kleinrivier visible police units. The latter group attended to the searching of the premises in terms of the search warrant. The National Intervention Unit and the members of the Visible Police Units of Kuilsrivier, Umfuleni and Kleinrivier actively participate while the National Intelligence Unit merely acts in an advisory and fact finding capacity. The original search warrant was in possession of the Visible Police Units.

[10]      The court a quo did not record the manner in which Captain George assaulted the respondent. It merely stated that an assault had taken place according to the evidence of Ms Cupido.

[11]      Considering the evidence of Ms Cupido, the following appears

(a)     he and the respondent are very good friends. He stayed in a hut on her property;

(b)   She noticed police vehicles in the street in front of her home. She left to do shopping. On her return, the police had left. She called out to the respondent and told him that the police had left;

(c)   The respondent jumped back over the wall and when approaching his hut, the police in the person of Captain George and other police officers came out of the respondent's hut and assaulted the respondent;

(d)   She then said to the respondent that he should go to the doctor as he, the respondent had been injured due to the assault;

(e)   No explanation was provided why in the fact of the matter that the police had left, Captain George and other police officers were still on the property;

(f)   Further, no explanation was provided how Ms Cupido knew that the respondent was hiding behind the wall when she called him.

[12]         In contrast thereto, the respondent had testified that he himself saw that the police had left and returned to the yard. When he was about to enter his place, Captain George and the other police officers came out of his house. They then immediately started to assault him. When Captain George and the other police officers finally left, he could not get up by himself as a result of the assault and his landlady, Ms Cupido assisted him in that regard. However, in his statement to the police in respect of the alleged assault, which statement he confirmed in his evidence in chief, the respondent stated that after the assault he went to another address to seek assistance from a certain Carol Crotz. This is not the person who testified as to the assault committed, namely Ms Cupido. The respondent did not mention Ms Cupido, who apparently witnessed the assault, in his statement to the police.

[13]       The evidence tendered on behalf of the respondent is contradictory as appears from what is recorded above.

[14]       In my view, the foregoing issues impact negatively on the probative value of Ms Cupido’s evidence in respect of the alleged assault that she apparently witnessed.

[15]       Furthermore, the injuries recorded on the hospital record do not tally with the alleged manner in which the assault was committed.

[16]       In the absence of the facts and findings that the court a quo premised its judgment that the probabilities were more favourable to the respondent's version, the judgment cannot be upheld. The issues raised above are in no way supportive of a finding in the respondent's favour in respect of the probabilities.

[17]       It follows that the appeal should succeed.

I propose the following order.

(a)   The appeal is upheld with costs.

(b)   The order of the court a quo is set aside and replaced with the following order:

"The action is dismissed with costs".

CJ VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

I agree.

J RAULINGA

JUDGE OF THE HIGH COURT

I agree.

CAMBANIS

ACTING JUDGE OF THE HIGHCOURT

On behalf of Appellant:           J van der Schyff

Instructed by:                         State Attorney

On behalf of Respondent:      G JScheepers

Instructed by:                         ErweeAttorneys

                                                    c/o Dyason Inc.

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