THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  236/2007
Reportable

In the matter between:

THINANDAVHA GERSON RALIPHASWA                                      Appellant

and

TSHAMMBENGWA THOMAS MUGIVHI
1st Respondent
M M CHIBAMBU

2nd Respondent
MINISTER OF SAFETY AND SECURITY

3rd Respondent

Coram:
CAMERON, COMBRINCK JJA and SNYDERS AJA
Heard:
12 MARCH 2008
Delivered:
27 MARCH 2008

Summary:
Damages for iniuria ─ defamation and unauthorised, invasive
search during which appellant was indecently assaulted ─ when
adverse inference for failure to call witness not justified.

Neutral Citation:  This judgment may be referred to as Raliphaswa v
Mugivhi (236/2007) [2008] ZASCA 17 (27 March 2008)

SNYDERS AJA/

SNYDERS AJA:
[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.

[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.

[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 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 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.

[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 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’.

[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 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 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’
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 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 and
asked permission to search him.  The appellant refused.  Mughivi, the driver,
gave the improbable version that after he produced his appointment 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
reaction to the request to be searched caused them to suspect that he was
hiding something.  The search revealed nothing.

[11] This evidence gives rise to the probability that the respondents did
search the appellant consistent with their duties and suspicion, which was
unfounded.

[12] Mugivhi did not hear the initial exchange between the appellant and
Tshivhambu, but denied that he heard Tshivhambu calling the appellant a
‘tsotsi’.  Tshivhambu on the other hand, testified that the appellant snatched
Mugivhi’s appointment card and said, ‘It is not true that you are on duty, you
are a tsotsi’.  Tshivhambu, the last witness of four in the trial, asserted for the
first time during his evidence that it was in fact the appellant who used the
word ‘tsotsi’.  This belated disclosure fundamentally eroded the respondents’
denial of the appellant’s version.  It supports the appellant’s version that the
word ‘tsotsi’ was used and strips the policemen’s denial of any reliability.

[13] Generally
the
respondents’
evidence
contains
numerous
contradictions, evasive answers and improbabilities.  There is no need to deal
with the detail thereof in the light of the conclusion reached above on the two
major factual issues.

[14] Khakhu corroborated the appellant’s evidence in material respects.  He
differed in that he said Tshivhambu put his hand inside the appellant’s pants
when he held his private parts.  It seems Khakhu was simply exaggerating.  It
does not detract from the reliability of the appellant’s version and it was also
not argued on behalf of the respondents that this is a material contradiction in
the appellant’s case.

[15] In this court the respondents persisted with the argument that the court
below was justified in drawing an adverse inference against the appellant from
the failure to present the evidence of the sympathetic reservist who berated

the respondents.  The appellant’s uncontradicted evidence was that he did not
know the identity of this reservist and, despite his request, the police refused
to disclose it to him.  The appellant took a grave risk to allege that this
reservist berated the respondents as they were colleagues and could easily
have called him to contradict the appellant.  The question may well be asked
why they did not.  When a witness is equally available to both parties, but not
called to give evidence, it is logically possible to draw an adverse inference
against both.1  The party on whom the onus rests has no greater obligation to
call a witness, but may find that a failure to call a witness creates the risk of
the onus proving decisive.2  In the present matter the appellant did not have
an opportunity equal to the respondents to call this witness.  The adverse
inference drawn by the trial court against the appellant was unjustified in the
circumstances.  An adverse inference in any event does not operate to
destroy a case otherwise proved, which is what the appellant managed to do.3

[16] The respondents called the appellant a ‘tsotsi’.  The appellant pleaded
that ‘tsotsi’ means ‘dishonest person’.4  This meaning was not denied in the
respondents’ plea.  The appellant confirmed this meaning during his evidence
and although it was put to him that there are different meanings to this word,
these suggestions were never pleaded or developed as a defence.  No doubt,
to be called a ‘dishonest person’ is defamatory as it would tend to lower the
appellant in the estimation of right-thinking members of society generally.5
Khakhu heard the defamatory words. Although the evidence does not
establish the extent of the publication of the defamation, it seems inevitable,
considering the circumstances in which the words were uttered, that some
publication took place.  It was common cause that the incident happened in
public, within earshot and full view of traders, customers and passers-by.  The
appellant’s evidence that the fracas aroused interest amongst people in the
vicinity was not challenged or denied.

1 Webranchek v L K Jacobs & Co Ltd 1948 (4) SA 671 (A) 681-682.
2 Brand v Minister of Justice 1959 (4) SA 712 (A) 715F-716F.
3 Brand above at 716F.
4 The Concise Oxford English Dictionary 2002 defines ‘tsotsi’ as ‘a young black urban
criminal’, an even stronger meaning than the appellant relied upon.
5 Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA) 152h-153g.

[17] Once the defamatory nature of the words used has been established it
is presumed to have occurred intentionally and unlawfully which presumption
gives rise to an evidentiary burden on the respondents to establish some
lawful justification or excuse.6  Because of the nature of the respondents’
defence, a bare denial, no evidence was adduced to rebut the presumption.

[18] The appellant was subjected to an invasive and humiliating search.
This amounted to an iniuria.  In addition, it was done without probable cause.
Some remarks about that is required, particularly since respondent’s counsel
submitted that a search on mere suspicion was justified.  Mugivhi testified that
he knew that they were not entitled to search a person without a reasonable
suspicion.  The only facts advanced to attempt to justify the search were that
the appellant did not stop his car to the side of the road and he made a lot of
noise once confronted by the respondents.  Having been called a ‘tsotsi’ this
was perfectly understandable.

[19] In the absence of consent or a search warrant members of the SAPS
are entitled to search an individual only in circumstances authorised by s
22(b) of the Criminal Procedure Act 51 of 1977 (CPA), namely when it is
believed, on reasonable grounds, that a warrant will be issued if applied for
and that the delay in applying for a warrant would defeat the object of the
search.7  These provisions were designed to protect rights to privacy against
abuse of power by members of the SAPS.  Even when a search is justified it

6 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) 1215B-I.
7 Section 22:  ‘A police official may without a search warrant search any person or container
or premises for the purpose of seizing any article referred to in section 20 –
(a) if the person concerned consents to the search for and the seizure of the article in
question, or if the person who may consent to the search of the container or premises
consents to such search and the seizure of the article in question; or
(b) if he on reasonable grounds believes –
(i) that a search warrant will be issued to him under paragraph (a) of section 21(1) if he
applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the search.’
Section 21(1):  ‘Subject to the provisions of sections 22, 24 and 25, an article referred to in
section 20 shall be seized only by virtue of a search warrant issued –
(a)by a magistrate or justice, if it appears to such magistrate or justice from information on
oath that there are reasonable grounds for believing that any such article is in the possession
or under the control of or upon any person or upon or at any premises within his area of
jurisdiction;’.
These provisions should further be read with s 13(1) of the South African Police Service Act
68 of 1995 which provides:  ‘Subject to the Constitution and with due regard to the
fundamental rights of every person, a member may exercise such powers and shall perform
such duties and functions as are by law conferred on or assigned to a police official.”

shall, in terms of s 29 of the CPA ‘be conducted with strict regard to decency
and order’.

[20] The appellant is the sheriff of the magistrate’s court for the district of
Thohoyandou and as such is a prominent and respected member of the local
community.  He has held this position since 2000.  He has also been the
elected chairman of the Community Police Forum8 of Itsani since 1996.
During 1996 he was a member of the executive of the local Civic Association
and since then has remained involved in an advisory capacity.  He is a
member of the International Pentecostal Church.  From 1990 until 2000 he
was a politician.  During that time he held the position of coordinator of the
National Party for the Limpopo Province.  Prior to 1990 he was a clerk
employed by the former Department of Works.  He is a qualified teacher and
had occasion to practise that profession earlier in his career.

[21] An award of damages involves an assessment of a just and fair
compensation in the circumstances to assuage the appellant’s wounded
reputation and feelings.  In making that assessment I have consulted past
awards, though mindful that no two cases are ever the same.9  The appellant
is a man of standing in the community.  Although he was defamed there is no
evidence to suggest a vast impact on his reputation.  No apology was ever
forthcoming.  The two incidents, the defamation and the iniuria, occurred at
the same time. He was humiliated in public.  Without underestimating what
the appellant had suffered, it is not one of the more serious cases of injuria.
In the circumstances a just and fair award for both the defamation and the
indecent search would be the amount of R25 000,00.

[22] This award falls within the ambit of the magistrate’s court jurisdiction.
Bearing in mind that the appellant is an officer of the court, he was entitled to
approach the high court.  I should add that the high court’s order that the

8 Established by the South African Police Service Act 68 of 1995.
9 Some of the cases considered in making an appropriate award are:  Raubenheimer v Greeff
1975 (3) SA 237 (C);  Udwin v May 1978 (4) SA 967 (C);  De Flamingh v Pakendorf; De
Flamingh v Lake 1979 (3) SA 676 (T);  SA Associated Newspapers Ltd v Samuels 1980 (1)
SA 25 (A);  Kritzinger v Perskorporasie van Suid-Afrika (Edms) Bpk 1981 (2) SA 373 (O);
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 (2) SA 242 (SCA).

appellant should pay the costs on an attorney and client scale gives rise to
concern.  Not only did the Judge make no effort to support this award with any
reasons, the record itself was entirely bare of justification for it.

[23] I grant the following order:

(1)
The appeal succeeds with costs

(2)
The order of the court below is replaced by the following order:
‘The respondents are ordered, jointly and severally, to pay to the
appellant:

(a)
the amount of R25 000;
(b)
interest on the amount of R25 000 at the rate of 15,5%

from date of judgment to date of final payment;
(c)
costs of suit.’

______________________
S SNYDERS
ACTING JUDGE OF APPEAL

AGREE:
CAMERON JA
COMBRINCK JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  27 MARCH 2008
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

T G RALIPHASWA v T T MUGIVHI
The Supreme Court of Appeal today awarded R25 000 damages to Mr Thinandavha Raliphaswa, the sheriff
of the Magistrate’s Court of Thohoyandou, and confirmed that he was the victim of police abuse.

Mr Raliphaswa was talking to some traders at a local market in Thohoyandou in April 2003 when he was
approached by two senior police officers on search and patrol duties. The police wanted to search him and
summoned him, calling him a ‘tsotsi’.  He did not oblige them. They then approached him and called him a
‘tsotsi’ again and proceeded to search him. While doing so they held onto his private parts, all in full view and
within earshot of the local traders, their customers and passers-by.

Raliphaswa sued the policemen for damages in the Thohoyandou High Court which dismissed the claim and
ordered him to pay the police’s costs of the trial on a punitive scale.

In its review of the facts, the Supreme Court of Appeal found that the police did call Raliphaswa a ‘tsotsi’, did
search him without having had probable cause to do so, and did hold him by his private parts in the process
of the search.  Raliphaswa was awarded R25 000 in damages for both defamation and the invasive,
humiliating and unauthorised search to which he was subjected.  The punitive costs order was also reversed
and the police were ordered to pay Raliphaswa’s costs of the appeal and the trial.

---ends---