Merryweather v Scholtz and Another (Meer J) [2019] ZAWCHC 161; 2020 (3) SA 230 (WCC) (6 November 2019)

Merryweather v Scholtz and Another (Meer J) [2019] ZAWCHC 161; 2020 (3) SA 230 (WCC) (6 November 2019)

The court found that the Third Defendant's plea, which admits to pushing the First Plaintiff in self-defence, constitutes an admission of assault, even if it does not match the precise form of assault alleged in the particulars of claim. The act of pushing is an application of force and thus meets the definition of...

Source-derived case information.

Citation
[2019] ZAWCHC 161
Parties
Plaintiff: Andrew Merryweather; Defendant: Oliver Scholtz; Defendant: Gerard David Peter Scholtz
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 November 2019
Case Number
7965/2009
Procedural Posture
Civil Trial / Pre Trial Ruling on Onus and Duty to Begin
Outcome
The Third Defendant bears the onus of proof and duty to begin in terms of Rule 39(11).
Judges
Y S Meer
Legal Topics
Onus of Proof, Confession and Avoidance, Self Defence, Intentional Assault
Delict Onus of Proof Confession and Avoidance Self Defence Intentional Assault

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Summary, issues, holding and outcome

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Parties

Andrew Merryweather

Plaintiff

Oliver Scholtz

Defendant

Gerard David Peter Scholtz

Defendant

Procedural Posture

Civil Trial / Pre Trial Ruling on Onus and Duty to Begin

Legal Issues

  1. 1 Whether the Third Defendant's plea constitutes confession and avoidance, thereby attracting the onus of proof and duty to begin.
  2. 2 Whether the admission of a push by the Third Defendant amounts to an admission of assault.
  3. 3 Whether factual disputes regarding the nature of the assault affect the application of the Mabaso principle.

Ratio Decidendi

The court found that the Third Defendant's plea, which admits to pushing the First Plaintiff in self-defence, constitutes an admission of assault, even if it does not match the precise form of assault alleged in the particulars of claim. The act of pushing is an application of force and thus meets the definition of assault. The invocation of self-defence in the plea brings the matter within the principle established in Mabaso v Felix, which holds that in cases of confession and avoidance, the defendant bears the onus of proving justification. The court rejected the argument that factual disputes regarding the nature of the assault preclude the application of the Mabaso principle, holding...

Court Disposition

The Third Defendant bears the onus of proof and duty to begin in terms of Rule 39(11).

Orders

  • In terms of Rule 39(11), the Third Defendant bears the onus of proof and duty to begin.