Raliphaswa v Mugivhi and Others

• Jurisdiction: South Africa
• Judge: Cameron JA, Combrinck JA and Snyders AJA
• Judgment Date: 27 March 2008
• Citation: 2008 (4) SA 154 (SCA)
• Docket Number: 236/07
• Hearing Date: 12 March 2008
• Counsel: SM Lebala for the appellant. T Madima for the respondents.
• Court: Supreme Court of Appeal

Snyders AJA: G

[1] The appellant was unsuccessful before Hetisani J in the Thohoyandou High Court with a claim for damages based on defamation and indecent assault and was ordered to pay the respondents' costs on an attorney and client scale. [*] It is with the leave of this court that he appeals. H

[2] The appellant pleaded that the first and second respondents defamed him by addressing him as 'tsotsi' and injuriously humiliated and degraded him by 'pulling his private parts' during a search. The respondents limited their defence to a denial of these allegations. I

[3] The first and second respondents are members of the South African Police Service (SAPS) in the Thohoyandou district. The third respondent is the Minister of Safety and Security whose vicarious liability, in the

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A event of a successful claim, is common cause. Merely for the sake of convenience I refer henceforth in this judgment to the first and second respondents as 'the respondents'.

[4] On 28 April 2003 at approximately 10:00 the appellant, according to his evidence, was driving his car, accompanied by Mr Khakhu, along a B gravel road past an informal market in Itsani. On the road were humps designed to reduce the speed of passing traffic, apparently constructed by the traders from the market. The appellant regarded these as dangerous to motorists because of their height. He stopped to suggest to the traders that the size of the humps be reduced.

C [5] Whilst they were having an amiable discussion about the humps the respondents and two police reservists arrived in a white Golf. The first respondent, the driver, stopped in front of the appellant's vehicle, nose to nose, about five paces away.

[6] There are material disputes about the events that followed. I deal D with the appellant's evidence first. He testified that the respondents summoned him by addressing him as 'tsotsi' and gesticulated with their fingers for him to come to them. They said they wanted to search him. He did not approach them but asked whether they were addressing him. The respondents confirmed and again addressed him as 'tsotsi'.

E [7] The respondents reached the appellant and insisted on searching him. He asked to see their appointment cards and a search warrant, both of which they failed to produce. Both then took him by the belt around his waist, one in front and one at the back, and lifted him off the ground. They proceeded to search him and the policemen to his front touched his F private parts to the extent that the appellant asked, 'why are you holding me by my private parts'? After the search one of the unidentified police reservists accompanying the respondents stepped forward and berated the respondents for what they had done to the appellant. Khakhu materially corroborated the appellant's version except for one aspect to G which I will return.

[8] It is common cause that immediately after this incident the appellant went to the police station where he ascertained the names of the respondents. He laid a charge against them, but the case was never prosecuted. He could not ascertain the name of the 'good Samaritan' H reservist, because the police refused to give it to him.

[9] Although the respondents denied that they addressed the appellant as 'tsotsi' or searched him, they confirmed that there was a disturbance involving them and the appellant. Aspects of the respondents' version, and the probabilities arising from it, strongly support the appellant's I version.

[10] This brings me to the respondents' version. They were assigned search and patrol duties for the day. Their attention was drawn to the appellant because he did not park to the side of the road. Tshivhambu, the passenger, who was the second respondent, approached the appellant J and asked permission to search him. The appellant refused. Mugivhi, the

Snyders AJA

driver, gave the improbable version that after he produced his appointment A card and the appellant had written down details from it, the appellant demanded to be searched. They did not give in to his demand because of his earlier refusal, but confined themselves to a search of the boot of the appellant's vehicle, conducted by Tshivhambu. This they did because the appellant's noisy...