Selamolele v Makhado

• Jurisdiction: South Africa
• Judge: Van der Spuy AJ
• Judgment Date: 30 September 1987
• Court: Venda Supreme Court

Van der Spuy AJ:

Plaintiff's claim

D Plaintiff, a businessman of Sela Interiors, Thohoyandou, Venda, issued summons against defendant, a clerk in the employ of Venda Agricultural Development Corporation ('Agriven') for the payment of damages in the sum of R56 569,78 by reason of an injury to plaintiff's left knee. The injury took place on 23 May 1984 when plaintiff fell down a staircase in E the Venda Development Corporation ('VDC') Building in the Thohoyandou Business Centre. Plaintiff alleges in his particulars of claim that defendant wilfully and unlawfully pushed him down the flight of stairs, whilst defendant in his plea specifically denies that allegation.

The injury to plaintiff's knee was described in a report of an orthopaedic surgeon, Dr Etienne Hefer, dated 9 December 1985, as a F 'sliding' fracture of the tibial plateau of the left knee with displacement and disturbance of the surface of the femero-tibial joint. Both condyles ('heads' or 'knuckles') of the tibia were fractured when forced downwards by the femur.

The nature of the injury described above is relevant in the present case insofar as it bears upon the question of how plaintiff sustained it. In G the pre-trial minute the report of Dr Hefer was accepted as an accurate assessment of the extent and nature of plaintiff's injury - be it noted, not of the cause thereof. In the same pre-trial minute the quantum of damages was agreed to at R15 069. The issues of fact were inter alia summarised as follows:

4.1

Did the defendant act wilfully or negligently towards the plaintiff?

4.2

H If yes, did the defendant cause all the damages which plaintiff has suffered or are those damages to be reduced on account of the plaintiff's own contributory negligence?'

It should be noted at once that the alleged contributory negligence of plaintiff was not part of defendant's plea and it was not pressed during I the trial before me by defendant's counsel as a fact upon which I should apportion blameworthiness and, therefore, the damages as between plaintiff and defendant. The sole question is, therefore, how plaintiff was injured, ie by being pushed down the staircase on his back, ie from his rear as alleged by plaintiff or, as it was put during evidence in cross-examination, whether plaintiff fell backwards and down the J staircase with

Van der Spuy AJ

defendant holding him and falling with him after they had had a scuffle A on the top of the landing above the staircase and had lost their balance?

The onus of proof and the legal requirements as to the discharge thereof

It is common cause that plaintiff bears the overall onus of proof, ie he must prove his version that he was pushed from behind and did not fall B fortuitously backwards after a scuffle with defendant. It may be that defendant has some duty of adducing evidence in support of the latter version but the onus of proof in the overall case never shifts and remains on plaintiff. See Pillay v Krishna 1946 AD 946 at 952-3. A disagreement arose between counsel for the two parties, ie Mr Botha for C plaintiff and Mr Pieterse for defendant, concerning that approach which I should adopt when determining whether plaintiff has discharged the onus of proving his version on a balance - preponderance - of probabilities. The disagreement arises from the well-known statement of the law in National Employers' Mutual General Insurance Association v Gany 1931 AD 187 at 199:

D 'Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false.'

Mr Pieterse submits that this case presents 'a classic example of two mutually destructive versions. The one excludes the other.' With that E submission I agree. Mr Pieterse then quotes cases in which the dicta in Gany's case have been interpreted, ie Koster Koöperatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens 1974 (4) SA 420...