Raliphaswa v Mugivhi and Others

The appellant, a respected community leader and sheriff of the magistrate’s court, was stopped by two SAPS members while speaking to traders near an informal market. He alleged that the police officers called him a 'tsotsi' (criminal), searched him without consent or warrant, and indecently assaulted him by touching his private parts during the search. The incident occurred in public. The respondents denied calling him a tsotsi or searching him, but admitted to a confrontation. The appellant laid a criminal charge, which was not prosecuted, and later instituted a civil claim for damages based on defamation and iniuria. The High Court dismissed his claim and ordered him to pay punitive costs, prompting the appeal.

The appeal succeeded with costs. The High Court’s order was set aside and replaced with an order that the respondents, jointly and severally, pay the appellant R25 000 in damages, interest at 15.5% from date of judgment, and the costs of suit.

The case reaffirms important principles relating to defamation and iniuria, particularly in the context of police conduct. It underscores that calling a person a criminal term such as 'tsotsi' is prima facie defamatory, that unlawful and indecent searches violate dignity and privacy, and that police searches without warrant or consent must strictly comply with statutory requirements. It also clarifies when adverse inferences may be drawn from failure to call a witness.