Raliphaswa v Mugivhi and Other (236/2007) [2008] ZASCA 17; [2008] 3 All SA 92 (SCA); 2008 (4) SA 154 (SCA) (27 March 2008)

Raliphaswa v Mugivhi and Other (236/2007) [2008] ZASCA 17; [2008] 3 All SA 92 (SCA); 2008 (4) SA 154 (SCA) (27 March 2008)

The Supreme Court of Appeal found that the respondents, members of the SAPS, did defame the appellant by calling him a 'tsotsi' in public and subjected him to an invasive and humiliating search without probable cause, consent, or a warrant. The respondents' denial was undermined by contradictions and belated disclosures in their evidence. The appellant's version was corroborated by a witness and supported by probabilities. The adverse inference drawn by the trial court for failure to call the reservist witness was unjustified, as the appellant did not have equal opportunity to call him. The court held that the defamation and iniuria were established, and the respondents failed to rebut...

Citation
[2008] ZASCA 17
Parties
Appellant: Thinandavha Gerson Raliphaswa; Respondent: Tshammbengwa Thomas Mugivhi; Respondent: M M Chibambu; Respondent: Minister of Safety and Security
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 2008
Case Number
236/2007
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal upheld; damages awarded to appellant for defamation and iniuria.
Judges
Cameron, Combrinck, Snyders
Legal Topics
Defamation, Iniuria, Indecent Search, Damages Assessment, Adverse Inference, Vicarious Liability
Delict Civil Procedure Defamation Iniuria Indecent Search Damages Assessment Adverse Inference Vicarious Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Thinandavha Gerson Raliphaswa

Appellant

Tshammbengwa Thomas Mugivhi

Respondent

M M Chibambu

Respondent

Minister of Safety and Security

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the respondents defamed the appellant by calling him a 'tsotsi'.
  2. 2 Whether the respondents unlawfully and indecently assaulted the appellant during a search.
  3. 3 Whether the adverse inference for failure to call a witness was justified.

Ratio Decidendi

The Supreme Court of Appeal found that the respondents, members of the SAPS, did defame the appellant by calling him a 'tsotsi' in public and subjected him to an invasive and humiliating search without probable cause, consent, or a warrant. The respondents' denial was undermined by contradictions and belated disclosures in their evidence. The appellant's version was corroborated by a witness and supported by probabilities. The adverse inference drawn by the trial court for failure to call the reservist witness was unjustified, as the appellant did not have equal opportunity to call him. The court held that the defamation and iniuria were established, and the respondents failed to rebut...

Court Disposition

Appeal upheld; damages awarded to appellant for defamation and iniuria.

Orders

  • The appeal succeeds with costs.
  • The order of the court below is replaced: Respondents are ordered, jointly and severally, to pay the appellant R25,000.