Thinandavha Gerson Raliphaswa v Tshammbengwa Thomas Mugivhi

On 28 April 2003, the appellant, a sheriff of the magistrate's court and chairman of the Community Police Forum in Itsani, was driving with Mr Khakhu when they stopped at an informal market to discuss traffic-calming humps with traders. The first and second respondents, members of the South African Police Service (SAPS), arrived and allegedly addressed the appellant as 'tsotsi' (dishonest person/criminal) in public. They then subjected him to a search without reasonable grounds, consent, or a search warrant. During the search, the respondents lifted the appellant by his belt and touched his private parts in a humiliating manner. A police reservist present reportedly berated the respondents for their conduct. The appellant immediately laid a charge at the police station, but no prosecution followed. The appellant sued for damages for defamation and indecent assault. The Thohoyandou High Court dismissed his claim and ordered him to pay costs on an attorney and client scale.

• Whether the respondents defamed the appellant by calling him 'tsotsi'
• Whether the respondents committed iniuria by conducting an invasive and humiliating search
• Whether the search was conducted lawfully under section 22(b) of the Criminal Procedure Act 51 of 1977
• Whether an adverse inference should be drawn against the appellant for failing to call the police reservist as a witness
• Whether the appellant was entitled to damages and the quantum thereof
• Whether the high court was justified in ordering costs on an attorney and client scale

The appeal succeeded with costs. The order of the court below was set aside and replaced with an order that the respondents pay the appellant jointly and severally: (a) R25,000; (b) interest at 15.5% from date of judgment to final payment; (c) costs of suit.

The binding legal principles established are: (1) An adverse inference for failure to call a witness is not justified when the witness is not equally available to both parties and one party has been denied access to the witness's identity; (2) An adverse inference does not operate to destroy a case otherwise proved on the evidence; (3) Police officers may only search individuals without consent or warrant when they have reasonable grounds to believe a warrant would be issued if applied for and delay would defeat the search, as required by section 22(b) of the Criminal Procedure Act 51 of 1977; (4) Mere suspicion, unusual parking, or a person's loud reaction to confrontation do not constitute reasonable grounds for a warrantless search; (5) Once defamatory words are proved to have been published, they are presumed to have been uttered intentionally and unlawfully, placing an evidentiary burden on the defendant to establish lawful justification or excuse; (6) Any search conducted by police, even when justified, must be conducted with strict regard to decency and order as required by section 29 of the CPA; (7) An invasive, humiliating search without legal justification constitutes iniuria for which damages are recoverable.

The court made several non-binding observations: (1) The appellant took a grave risk in alleging that a police reservist berated the respondents, as they were colleagues who could easily have contradicted him, raising the question why the respondents did not call this witness; (2) Although the award of R25,000 fell within magistrate's court jurisdiction, the appellant as an officer of the court was entitled to approach the high court; (3) The trial court's order for costs on an attorney and client scale gave rise to concern, as the judge made no effort to support this award with reasons and the record was entirely bare of justification for it; (4) The provisions of section 22(b) of the CPA were designed to protect rights to privacy against abuse of power by members of SAPS; (5) Awards of damages involve an assessment of just and fair compensation in the circumstances to assuage the plaintiff's wounded reputation and feelings, and while past awards may be consulted, no two cases are ever the same.

This case is significant in South African law for several reasons: (1) It clarifies the circumstances in which an adverse inference may be drawn from failure to call a witness, particularly where the witness is not equally available to both parties; (2) It reaffirms the constitutional protection of dignity and privacy against unlawful searches by police officers; (3) It emphasizes that police searches without consent or warrant require compliance with section 22(b) of the Criminal Procedure Act, namely reasonable belief that a warrant would be issued and that delay would defeat the search; (4) It demonstrates that mere suspicion, noise, or unusual parking do not constitute reasonable grounds for a search; (5) It provides guidance on quantum of damages for combined defamation and iniuria, particularly where the victim is a prominent community member; (6) It reinforces that defamation is presumed intentional and unlawful once proved, placing the burden on defendants to establish justification; (7) It condemns abuse of police powers and protects citizens' dignity against invasive, humiliating searches conducted without legal authority.