Tutshana v Kentucky Fried Chicken and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Notyesi AJ |
| Judgment Date | 08 August 2023 |
| Citation | 2023 JDR 3038 (ECM) |
| Hearing Date | 07 June 2023 |
| Docket Number | 2349/2019 |
| Court | Eastern Cape Division |
Notyesi AJ:
Introduction
Mr Sakhe Angela Tutshana, the plaintiff, is a male person employed as a nurse at Bedford Hospital, Mthatha. He instituted an action for damages against Kentucky Fried Chicken (“KFC”) and one Mr Mncedisi Tunyiswa Jola, the first and second
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defendants respectively, arising from a squabble that had occurred at the premises of KFC resulting in an alleged assault of the plaintiff by the second defendant.
In his particulars of claim, the plaintiff alleged that on 24 March 2019, at approximately 22h00, he was wrongfully and unlawfully assaulted by the KFC staff members, including the second defendant, when he had attended to the KFC, Madeira Street Drive Thru outlet to purchase food. The plaintiff alleged that he was assaulted with a knobkierie to the head resulting in him suffering injuries, for which he received medical attention at the Mthatha General Hospital. According to the plaintiff, the assault was unjustified. The plaintiff contended that at all material times during the alleged assault, the KFC staff and the second defendant, who assaulted him, were acting within the course and scope of their employment with the first defendant and therefore, the first defendant is liable to compensate him for their conduct.
The defendants admit that there was a squabble between the plaintiff and the second defendant and customers of the KFC outlet which took place on 24 March 2019 and that altercation had started approximately at 21h30 until 00h00. According to the second defendant, the plaintiff, who was under the influence of alcohol, started to assault him with his hands and thereafter head-butted him. The second defendant alleged that the squabble had ensued as a result of the plaintiff’s refusal to obey the instruction that he should remove his vehicle which had blocked a driveway leading to the pay point in the drive-thru and thereby causing a traffic congestion.
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The second defendant pleaded that, for the reason of his assault by the plaintiff, he had no option other than to defend himself from the aggressive plaintiff and the customers who were blocked by the plaintiff also joined the second defendant. Accordingly, the defendants contended that the second defendant’s actions and the customers that had joined him in assaulting the plaintiff, were justified and in the circumstances, their actions were necessary and lawful to thwart off the aggression of the plaintiff.
Prior to the commencement of the pleadings, the issues of quantum and liability were separated by the parties. The trial proceeded before this Court on the issue of liability only. During the pre-trial procedures, the plaintiff had accepted that he had a duty to begin leading evidence.
The issues
On the pleadings, the issues for determination of liability are:
The lawfulness of the assault of the plaintiff; and
Costs.
The evidence
The plaintiff was the only witness who testified in support of his case. In his testimony, he stated that he was employed as a male nurse at Bedford Hospital, Mthatha. He testified that he was resident at Tyumbu Location. On 24 March 2019, he went to KFC Madeira Street to purchase food. On his way to KFC, he drove a Golf
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car. He arrived at KFC at approximately 22h00. He was accompanied by his brother, his younger sister and two lady friends.
On arrival at KFC, he entered the drive-thru leading to a speaker where orders are made by customers of the KFC outlet. His brother exited the vehicle in order for him to effect payment for the food. According to the plaintiff, the reason his brother exited the vehicle is that the pay point was distant from him as a driver. At that stage, he also exited the vehicle in order to call for the order as he could not communicate properly through the speaker.
They were advised that the speed point was not working due to network issues and the KFC security guard advised them to proceed to the next window with a speed point. They left their vehicle and proceeded to the next window. His brother paid for their order and left him waiting for the order whilst conversing with the KFC security officer. At that stage, he requested his brother to bring the vehicle closer as they had left it when exiting for placing the order and making payment. The order was delivered to him, and he proceeded to check and verify the order.
According to the plaintiff, as he was verifying his order, he noticed that there was a squabble involving his brother and persons from an Avanza which was behind their vehicle. He then left his order at the window and proceeded to his brother. He directed his brother that they should leave the place as there was a squabble and confrontation between him and the persons from the Avanza. At that stage, his brother left the customers he was quarrelling with and went to their vehicle. The plaintiff also
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proceeded to their vehicle and opened the driver’s door. The other passengers in his vehicle had also joined the squabble between his brother and other customers from the Avanza.
The plaintiff further testified that as he was entering the driver’s seat, he noticed that his brother was in front of the vehicle, and he was assaulted by one of the customers from the Avanza vehicle. He also noticed another man with a KFC uniform, with a name tag written “Jola”. The plaintiff testified that the man from KFC approached them and ordered that they should leave - he was shouting. The plaintiff testified that he responded to the instructions that they should leave by saying that he could not leave as his brother was being assaulted in front of him.
According to the plaintiff, the KFC employee repeated that they should leave as he had told them previously and he then held him by the scruff of his neck ordering him to leave. He then slapped him twice with an open hand on his face and pressed his finger against the plaintiff’s eye, pushing him into the vehicle. At that stage, according to the plaintiff, he got into his vehicle. The plaintiff further testified that, on entering the vehicle, he switched off the music from their vehicle and tried to explain to the KFC employee that his brother was assaulted and that he was trying to intervene. The KFC employee ordered them to leave and pushed him into the vehicle.
According to the plaintiff, he exited his vehicle and retaliated to the KFC employees’ assault by fighting back. The plaintiff further testified that the KFC employee kicked him, saying that he should get back to the vehicle and he retaliated as he was being kicked. The plaintiff testified that at that stage, his younger sister
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intervened and entered between him and the KFC employee. They were fighting, holding each other and she was trying to stop the fight between him and the KFC employee. According to the plaintiff, the KFC employee was trying to bypass the sister in order to continue hitting and kicking him. The KFC employee got hold of him and dragged him and all that time, he was assaulting him with his fists and the plaintiff was fighting back, retaliating from the blows of the KFC employee.
According to the plaintiff, whilst they were holding each other, the KFC security guard came and applied pepper spray on him and then he freed himself and ran past their motor vehicle. As he was running, the KFC employee came from behind and kicked him, causing him to fall close to the rear of the vehicle and he suffered some lacerations in his elbows. The plaintiff testified that as he was laying on the ground, the KFC employee came and lifted him up and continued assaulting him with his fists.
The plaintiff testified that he managed to free himself again, ran towards his vehicle and as he was running towards his vehicle, the KFC employee struck him on his head with a knobkierie. After he was struck with a knobkierie, he bled and turned to face the KFC employee. Again, the KFC employee struck him with a stick, and he tried, at that time, to ward off the blows the KFC employee continued to assault him and he fell down. According to the plaintiff, the KFC employee continued to assault him as he was laying on the ground and he sustained injuries to his head. According to the plaintiff, the KFC employee eventually stopped assaulting him.
The plaintiff testified that his younger brother, during this time, had called the police and they arrived. When the police arrived, they advised him to go to the Madeira
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Street police station to lay a charge of assault. At the police station, the police provided the plaintiff with a J88 form and directed that he should go to a doctor to examine him. He went to the hospital where the form was completed and thereafter, he laid charges against the KFC employee. The plaintiff stated that they had done no wrong to the KFC employee and that he was amazed of being assaulted. According to the plaintiff, he was never informed about the outcome of the criminal case that he had laid against the second defendant.
The plaintiff was cross-examined. During cross-examination, the plaintiff was unable to explain the contradiction between his testimony and his particulars of claim. It was pointed out to him that, in his particulars of claim, it was stated that he was assaulted by staff members of the KFC, including one Jola, and that in his evidence in chief, he testified that he was only assaulted by one KFC employee (the second defendant). The plaintiff was unable to explain this contradiction, although he insisted that he was assaulted by the second defendant. It was put to the plaintiff that when they arrived at the KFC drive-thru, they were under the influence of alcohol and...
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