Raliphaswa v Mugivhi

• Jurisdiction: South Africa
• Judge: Hetisani J
• Court: Venda High Court
• Citation: 2006 JDR 0609 (V)
• Docket Number: 302/2003

Hetisani J:

This matter came to court by way of summons. Counsel for the Plaintiff was Adv Sikhwari, whereas counsel for Defendants was Adv Madima.

Plaintiff alleges and pleads that the three Defendants have on the 28th of April 2003 and at Itsani village, wrongfully and intentionally injured his reputation and thus defamed him, harassed and indecently assaulted him by pulling his private parts before members of the public and uttered the following defamatory words towards him: "Tsotsi, Kha i de fhano", which

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words when translated from the Venda language, means "May the Tsotsi come here". Plaintiff alleges further that the said defamatory statement has injured him in his name as the utterance thereof drew the attention of the people who were present in that area. Plaintiff alleges further in his summons that he was thus utterly humiliated, degraded, defamed and suffered damages in the sum of R250,000 (two hundred and fifty thousand rand) as a result of the aforesaid words by Plaintiff towards him. Plaintiff avers further that simply because First and Second Defendants were employees of the Third Defendant and they were acting within the scope of their employment under the Third Defendant when they uttered the defamatory statements, including the alleged harassment of the Plaintiff, thus the First Defendant and Second and Third Defendants are jointly and severally responsible for the damages suffered by the Plaintiff as indicated above, i.e. they are responsible for payment of the sum of R250,000 (two thousand and fifty thousand rand).

The Defendants filed a notice whereby they intended to defend the action and they denied having acted in the manner Plaintiff alleges in his summons. However, Third Defendant admitted that he is vicariously responsible for the delict of First and Second Defendants, but put Plaintiff to

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proof of the allegations.

Plaintiff himself testified as follows after taking the oath. That he resides at Itsani village in the district of Thohoyandou and that he works as a sheriff for the District Court t the magistrate office and as such he is a messenger of court and he has held this position since the year 2000, and before that he was a politician. He told the court further that while acting as a politician he was tasked with the duty to coordinate political activities between the National level of government and the Provincial Government of Limpopo whereas prior to this political position he held a position as a clerk at the local Department of Works until 1990. Between 1990 and 2000 Plaintiff was a politician he told the court. Plaintiff went on and said that he then acted as a deputy sheriff assisting the late JVN Mulaudzi who was the sheriff of court. The said Mr Mulaudzi died during the year 2000. He told court that the main duty of the sheriff or messenger of court is to see to it that the court orders are duly enforced by interaction with justice officials and informed court further that he is controlled by a sheriff's Board just as an attorney or advocate is under strict control of the Law Society and the Advocate Bar respectively. Plaintiff added that his appointment as messenger must be endorsed by the Minister of Justice before he can do his work as such. Plaintiff then told the court that his integrity is of cardinal

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importance in his career. He added that if his integrity is questioned he cannot do his job and earn a living. Plaintiff told the court that he is chairperson of the local Community Police Forum since 1996 and he is also an advisor to the local Civic Association since 2001. He further told the court that he had been a teacher by profession and also that he is a member of the International Pentecostal Christian Church (Modise Church).

Plaintiff then proceeded to tell the events of the 28th of April 2003. He told the court that he was driving along the Itsani village main road which is a gravel road. The incident took place next to a flee market at about 10:00. At the place where he had stopped his vehicle there was a speed hump, meant to prevent speeding. The humps in that area were big. Plaintiff had stopped to persuade the people at the flee market to reduce the size of the humps. At that moment, a white golf car stopped in front of his vehicle. Plaintiff was with one Mmboniseni Khakhu. The Golf car came from the opposite direction before it stopped in front of the vehicle driven by the Plaintiff. Plaintiff tells court that two men emerged from the said vehicle. The two strangers then asked the Plaintiff to go to them so that they may search him. They said to Plaintiff: "Ja, Tsotsi, Kha i de fhane ri i setshe". He talked to him in the Venda language. Plaintiff told court bystanders also heard the derogatory words uttered against him. Two people emerged from the white

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Golf and proceeded to where he was. Plaintiff did not move, but asked him who was the "tsotsi" they were referring to and at that time they grabbed him by his trouser belt. Plaintiff demanded a search warrant as well as appointment cards. The two men did not produce any document whatsoever. Plaintiff then demonstrated to court how he was grabbed by the two men. Plaintiff tells court that the men then proceeded to search the boot of his vehicle and found nothing and said "voetsek" and thereafter left. A third person wearing a police uniform also emerged from the said Golf vehicle and disapproved of the actions of his colleagues. Plaintiff tells court that he proceeded to open a case against the said men at the Tshisahulu satellite police station. At the police station, Plaintiff came to know who his assailants were. Plaintiff told the court that he did not find the name of the third person to emerge from the Golf car, i.e. the one who disapproved of the actions of the First and Second Defendants. Plaintiff tells court that the white Golf car had no mark or sign to distinguish it from any ordinary vehicle. Plaintiff concluded by saying that he demands R250,000 as damages for the inconvenience he had suffered in the hands of the First and Second Defendants as a result of their assault, harassment and degrading of him on that day. Plaintiff was extensively cross-examined by Defendants' counsel and admitted that the case he had preferred against the said Defendants was withdrawn on 29 July 2003 for lack of evidence. Plaintiff admitted

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contradictions in regard to the question whether he realised then that they were police officers and the fact that a Venda speaking police officer held him from front while he was being searched and that the Golf was easily distinguishable as a state vehicle registration BMG 091 B.

Plaintiff called his second witness in the name of Eric Mmboniseni Khakhu who was a passenger in Plaintiff's vehicle. The evidence of this witness will not be laid in detail as it is a re-iteration of the first witness's evidence, however, only highlights will be given prominence. This witness tells court that the first person to alight from the white Golf said to Plaintiff "Tsotsi come here" and while being searched, Plaintiff was held on his private parts. Much later witness told court of the third person who spoke against his colleagues. This witness was not consistent because he seems not to be sure of what happened, for instance this witness did not hear the words "Kha i de ri I setshe" as alleged by the Plaintiff. This...