Merryweather v Scholtz and Another

During the early hours of 9 September 2006 a physical altercation occurred between two groups of young men at an Engen service station in Newlands, Cape Town. The appellant, Andrew Merryweather, rushed towards the first respondent, Oliver Scholtz, after an earlier scuffle had subsided. Andrew sustained a severe cervical spine injury resulting in permanent partial paralysis and wheelchair dependence. Andrew alleged that Oliver had wrongfully and intentionally assaulted him by executing a rugby-style "spear tackle" and throwing him against a parked motor vehicle. Oliver denied this and pleaded that he acted in reasonable self-defence by grabbing Andrew, swivelling him away, and pushing him to avert an imminent attack, after which Andrew accidentally lost his footing and fell. Andrew instituted a delictual claim for damages. The trial court found in Andrew’s favour, relying in part on inadmissible evidence from a criminal trial. On appeal, the Full Court set aside the trial court’s judgment and dismissed Andrew’s claim. Andrew sought special leave to appeal to the Supreme Court of Appeal.

The appeal and cross-appeal were struck from the roll with costs.

The judgment reaffirms key principles of South African civil procedure and evidence law, particularly that a plaintiff bears the onus of proving all elements of a delict on admissible evidence. It underscores that reliance on inadmissible hearsay constitutes a material irregularity and that expert evidence carries little weight when not grounded in established facts. The case also restates the stringent threshold for special leave to appeal to the Supreme Court of Appeal against decisions of a Full Court.