With the number of videos being leaked on social media, regarding situations of assault, defamation and hate speech, it becomes that much easier for the defendant to be found guilty of such a crime as the proof is right there. The challenge comes with hearsay of contradictory statements, and the judge will then have to reach a decision based on probabilities of both the plaintiff and the defendant.
Bota v Minister of Police (3910/2015)  ZAECGHC 122 (16 November 2017)
In this case law, the plaintiff instituted an action for damages against the defendant, Minister of Police, for injuries sustained when he was allegedly assaulted by members of the South African Police Service (SAPS). He testified that the SAPS employees held him and assaulted him with fists and open hands. Upon trying to cover his face, he was accused of resisting arrest and was tackled to the ground. His bodily injuries were: a fracture of the right leg, various other soft tissue injuries, bruises and abrasions.
The assault was denied by the defendant, indicating that it was, in fact, the plaintiff, allegedly inebriated at the time, who assaulted the SAPS employees. When the plaintiff called out a police officer’s name, and the officer he thought he was calling did not respond, he began swearing at the officers who were sitting in a Kombi. The defendant also pleads that the injuries sustained by the plaintiff were caused by his fall while running away from the employees after he swore at them.
In the court, three witnesses testified in support of the plaintiff, and two testifies on behalf of the defendant. One of the plaintiff’s witnesses failed to add to their statement that the plaintiff was tackled to the ground, and the omission of such an action raised inconsistency in the said witness’ testimony.
Reaching a conclusion
To come to a conclusion on the disputed issues, a court must make findings on:
The Court will weigh up and test the plaintiff’s allegations against the general probabilities to determine whether the evidence is true or not. If the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true.
The main question is, what are the probabilities of the plaintiff and his witness omitting to mention the tackling in their statements to the police if this had occurred? The judge came to the conclusion that the defendant’s version is the most probable, and the plaintiff’s claim against the defendant is dismissed with costs.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)