i m > •(,> ;u i

CO M BIN ED ;

SUMMONSCase No.: 92/26570

In the Supreme Court of South AfricaWITWATERSRAND LOCAL DIVISION)

In the matter between:

THEMBA WESLEY DADA Plaintiff.

and

THE MINISTER OF DEFENCE Defendant.

To the sheriff or his deputy:INFORM

THE MINISTER OF DEFENCE, cited herein in h is o f f ic ia l f > capacity as being the person le g a lly responsible forth e conduct o f members o f the South African Defence

Force, c /o the C hief o f th e South African Defence Force, £Finance D iv is io n ), South African Defence Force, Headquarters Dequar Road, Pretoria.

(hereinafter called the Defendant(s) ) thatTHEMBA WESLEY DADA, an adult male receiv in g c lerk , whose date o f b irth i s 31 October 1955, resident at F182 Phola Park, TOKOZA.

(hereinafter called the Plaintiff(s) ), hereby institutes action against HIMin which action the Plaintiff(s) claim the relief and on the grounds set out in the particularsannexed hereto.

INFORM the Defendant(s) further that if Defendant(s) disputes/dispute the claim and wishes/wish to defend the action, the Defendant(s) shall -

(i) Within 1 month Suva: of the service upon the Defendant(s) of this summons,file with the registrar of this Court at Room 007, Supreme Court Buildine Pritchard S tr e e t , JOHANNESBURG.Notice of Defendant(s) intention to defend and serve a copy thereof on the Attorneys of the the Plaintiff(s), which notice shall give an address (not being a post office or poste restante) referred to in rule 19 (3) for the service upon the Defendant(s) of all notices and documents in the action.

(ii) Thereafter and within twenty days after filing and serving notice of intention to defend as aforesaid, file with the registrar and serve upon the Plaintiff(s) a Plea, Exception, Notice to strike out, with or without a Counter-claim.

INFORM the Defendant(s) further that if the Defendant(s) fails/fail to file and serve notice as aforesaid, Judgment as claimed may be given against the Defendant(s) without further notice to the Defendant(s), or if having filed and served such notice, the Defendant(s) fails/fail to plead, except, make application to strike out or counter-claim, Judgment may be given against the Defendant(s)

AND immediately thereafter serve on the Defendant(s) a copy of this Summons and return the same to the Registrar with whatsoever you have done thereupon.

DATED at JOHANNESBURG this 30th day of SEPTEMBER 19 92.

NICHOLLS, CAMBANIS & SUDANO Attorneys of Plaintiff(s),23rd F loor, Kine Centre 1 1 Commissioner S treet JOHANNESBURG Ref. Ms C H N ich o lls

C A R e g i S t r a r ° f t h e S u p r e m e C o U r t

ANNEXURE "A"

PARTICULARS OF CLAIM

Plaintiff is THEMBA WESLEY DADA, an adult male receiving clerk, whose date of birth is 31 October 1955, resident at F182 Phola Park, Tokoza.

Defendant is the MINISTER OF DEFENCE, cited herein in his official capacity, as being the person legally responsible for the conduct of members of the South African Defence Force, c/o the Chief of the South African Defence Force, (Finance Division), South African Defence Force Headquarters, Dequar Road, Pretoria.

On or about 8 April 1992, and at Phola Park, Tokoza, the Plaintiff was unlawfully assaulted, by a member, or members, of the South African Defence Force, acting within the course and scope of their employment with the Defendant.

As a consequence of this assault, Plaintiff sustained injury as follows

4.1 a broken left arm;

4.2 a severely swollen right arm.

The disabilities suffered by plaintiff as a result of the injuries are as follows

5.1 temporary disability in that Plaintiff was unable to use his left arm, which was in a plaster cast, for about two months.

5.2 temporary disability in that Plaintiff was unable to use his right arm, for about one m o n t h .

Page 2

6. As a result of the bodily injuries sustained, Plaintiff has suffered damages in the amount of R32 000,00.

7. Such damages are computed as follows

LOSS OF PAST EARNINGS

7.1 Plaintiff is employed as a receiving clerk, and earns R1000,00 per month; he was rendered unable to work for a period of two months, depriving him of R2000,00 wages.

PAIN AND SUFFERING AND CONTUMELIA

7.1 For pain and suffering and contumelia, damages in the amount of R3 0 000,00.

8. In the premises Defendant is liable to Plaintiff in the amount of R32 000,00

9. Despite demand, Defendant fails or refuses to pay the above amount of any portion thereof.

WHEREFORE PLAINTIFF CLAIMS

i) the amount of R32 000,00.

ii) interest on the above amount at the rate of 18.5% per annum as from 14 days of date of judgment to date of payment.

iii) costs of suit;

Page 3

iv) further and/or alternative relief

DATED AT JOHANNESBURG THIS //* DAY OF SEPTEMBER 1992

D J M PITMAN COUNSEL FOR PLAINTIFF

NICHOLLS AND CAMBANIS PLAINTIFF'S ATTORNEYS 23RD FLOOR, KINE CENTRE COMMISSIONER STREET JOHANNESBURG REF: VS/PP/22

C

IN THE SUPREME COURT OF SOUTH AFRICA

(tflTWATERSRAND LOCAL DIVISIONCASE NO: 92/26570 P/H 308

In the matter between

PAPA THEMBA WESLEY Plaintiff

and

THE MINISTER OF DEFENCE Defendant

r

e>,

NOTICE OF INTENTION TO DEFEND

BE PLEASED TO TAKE NOTICE THAT the abovenamed Defendant intends to

defend this action and has appointed the following address as the

address for the service upon him of all notices and documents in the

action

STATE ATTORNEY888 ROYAL ST. MARY'S BUILDING 85 ELOFF STREET PRIVATE BAG X9 J O H A N N E S B U R G

BUSINESS ADDRESS: S.A. DEFENCE FORCE HEADQUARTERS, DEQUAR ROAD, P R E T O R I A .

DATED at JOHANNESBURG on this the daY of OCTOBER 1992.

defendant •‘s ^attorneySTATE ATTORNEY888 ROYAL ST. MARY'S BUILDING 85 ELOFF STREET

PRIVATE BAG X9 J O H A N N E S B U R G ___ /2

REFER TO: G. BOWEN REFER NO: 6682/92/P5/JC TEL NO: 29 2961

The Registrar of the above Honourable Court J O H A N N E S B U R G

mAND TO:

PLAINTIFF’S ATTORNEYNICHOLLS, CAMBANIS, & SUDANO 23rd FLOOR, KINE CENTRE 141 COMMISSIONER STREET J O H A N N E S B U R G

REF: Ms C.H. NICHOLLS

COPY HEREOF RECEIVED ON THIS

THE 3 r j DAY OF OCTOBER 1992

r

For/PLAINTIFF'S ATTORNEY

IN THE SUPREME COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case Number ; 92/26570

In the matter between:

PAPA. Themba Wesley Plaintiff

and

MINISTER OF LAW AND ORPER Defendant

DEFENDANT’S PLEA TO PLAINTIFF'S PARTICULARS OF CLAIM

1. AD PARAGRAPH 1 :

Save to admit that Plaintiff is Themba Wesley Dada,

Defendant has no knowledge of the remaining allegations contained in this paragraph, accordingly denies same and

puts Plaintiff to the proof thereof.

2. AD PARAGRAPH 2:

Defendant admits the contents of this paragraph.

Page 2

3. AD PARAGRAPH 3 :

Defendant denies the contents of this paragraph and puts

Plaintiff to the proof thereof.

4. AD PARAGRAPHS 4. 5. 6. 7 and 8 :

Defendant denies the contents of these paragraphs and puts

Plaintiff to the proof thereof.

5. AD PARAGRAPH 9 :

Defendant admits a demand and a failure or refusal to pay,

but pleads that Defendant is not legally liable to pay the

amount claimed or any portion thereof.

WHEREFORE Defendant prays that Plaintiff’s claim be dismissed

with costs.

DATED AT JOHANNESBURG ON THIS 2nd DAY OF DECEMBER 1992.

Page 3

TO:

AND

B ROUXDefendant's Counsel

Defendant's Attorneys 888 Royal St. Mary's Bldg 85 Eloff Street JOHANNESBURG Ref: Mr Bowen/

6682/92/P5 Tel: 29-2961

THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG

TO: NICHOLLS ft CAMBANISPlaintiff's Attorneys 23rd Floor Kine Centre Commissioner Street JOHANNESBURG Ref: VS/PP/22

Received copy hereof on the day of December 1992.

for: Plaintiff's Attorneys

IN THE SUPREME COURT OF SOUTH AFRICA

(VITWATERSRAND LOCAL DIVISION)

CASE WO; 92/26570

In the matter between

PAPA THEMBA WESLEY Plaintiff

and

THE MINISTER OF DEFENCE Defendant

DEFENDANT’S NOTICE IN TERMS OF RULE 36 (4)

BE PLEASED TO TAKE NOTICE that the Defendant requires the Plaintiff in

so far as he is able to do so to make available within 10 (ten) days

after service hereof to the former any medical reports, hospital

records, X-ray photographs or other documentary information of a like

nature relevant to the assessment of the damages of compensation in

respect of bodily injury alleged to have been suffered by the Plaintiff.

TAKE NOTICE FURTHER that the Defendant requires from the Plaintiff a

consent to inspect all hospital records relating to the latter and that

such consent should mention the hospitals' reference numbers as well as the dates on which the Plaintiff was treated.

-2 -

DATED at JOHANNESBURG on this the day of NOVEMBER 1992tr

DEFENDANT'S ATTORNEYSTATE ATTORNEY888 ROYAL ST. MARY'S BUILDING 85 ELOFF STREET

PRIVATE BAG X9 J O H A N N E S B U R G

r

TO:

AND TO:

THE REGISTRAR OF THE ABOVE HONOURABLE COURT J O H A N N E S B U R G

PLAINTIFF'S ATTORNEYSNICHOLLS AND CANBANIS 23rd FLOOR, KINE CENTRE COMMISSIONER STREET J O H A N N E S B U R GREF: Ms C H NOCHOLLS

REFER TO REFER NO TEL NO

G. BOWEN 6682/92/P5/JC 29 2961

COPY HEREOF RECEIVED THIS THE

// DAY OF NOVEMBER 1992

WITHOUT PREJUDICE TO RIGHTS

PH ^66IN TH E S UPREME COURT OF SOUTH AFRICA( WITHATER5RAND LOCftL D IV IS IO N ) CASE NO i 95/56570

I n th e m a tte r b e tw e e n t —

PADft, Themba W e sle v P l a i n t i f f

AND

THE B IN IS T E R OF LAM AND ORDER D e fe n d a n t

REPLY TO N O TIC E IN TERMS OF RULE 36<<♦>

BE PLEASED TO TAKE N O TIC E that the Plaintiff hereby attaches relevant medical records as requested by the Defendant.

DATED at JOHANNESBURG on this the day of DECEMBER 1992,

NICHOLLS, CAMBANIS & SUDANOPLAINTIFFS’ ATTORNEYS 23RD FLOOR, KINE CENTRE 141 COMMISSIONER STREET JOHANNESBURG REF : VS/PP/22

TO : THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG

AND TO : STATE ATTORNEYDEFENDANT’S ATTORNEYSBTH FLOOR, ROYAL ST.MARY’S BLDGB5 ELOFF STREETJOHANNESBURGM R .BOWEN/6682/92/P5

Received copy hereof on this the jyV'cjay f\_DECEMBER 1992.

FOR : DEFENDANT’S ATTORNEYS

* O.p .-s 6*2-oie2 T.P .H . 25B

BUITEPASIENTE EN/OF ONGEVALLE AFD. • OUTPATIENT AND/OR CASUALTY DEPT.

.HOSPITAAL • HOSPITAL PASlfNT • PATIENT No............ ®

Naam voluit Nam e in full.'»Huisedres Residential address

HuwelikstaatMarital state.......................

Naam van persoon verantwcordelik vir betaling van rekening Name ol person responsible tor payment of account

Sy/Haar adres • His/Her address................

Naam van werkgewer • Name of employer

Adres van werkgewer • A d d r ^ of employer

.aam van siekefonds Jame of sick fund.................I I'

......... ........................................................................................................

£ /<%£*........ •..............r/ g-- _ ...

^2.5rr.______...........................

& ./krr........ & ..Beroep Geboortedatum 14 *<", As/.Occupation................................................................................ Date of birth........

................................................................................

_________________ ................................ ........ if no.4 & £ Z l'i2L•Jaarlikse gesinsinkomsie • Annual family income Ifa /•£<2''4s 2 / ^ 0 ,

Uit alle bronne From all sources / fyj ^

Sr&

Broodwinner • Breadwinner.......................................................................Z.LJU3JLT..TT........ ................. R

Vrou • W ife........................ ....................................................... ........................................................_ ............... R

Ander afhanklikes • Other dependants......................................................................................................... R

Totaal • Total R >*Getal persone in gesin (broodwinner ingesiuit)Number of persons in household (including breadw inner).............................................................................................

------------------------------ . ---------

Meld ouderdomme van afhanklikesState ages of dependants.........................................................................................................................................................

Rede vir afhanklikheid •R easonfordependence....................................... ........................................................

• (Minderjariges van 16 jaar en ouer wat seltonderhoudend is, moe! uitgesluit word)• (Minor children of 16 yea-s and older who/are sel^-suppoting must be excluded)

. y ? _

uatum van ongeluktoesering S ' / j r . / * Plek y-, , j Date of accident/injury........................ ,\S !..../ ........... .......... Place................................................v ...../ z = r . ..............Persoon wat beseerde ingebrina het / ’ ~Person who brought in the injured.........../................................................. / . . I ......................................................................

Sy/Haar adres His/Her address.

Sy/Haar handtekening His/Her signature....... / / i

W as beseerde:W as injured:

Ven voertuig No. and vehicle No.

(i) Onder die invloed van drank? Under the influence of l.quor?..„

(ii) By sy/haar bewussyn? Conscious?...................................

& Y % cGeteken: Opnemingsbeampte ^ ------------Signed: Admitting officer.................... ...................................................,c£i

Die aard van die pasiSnt se siekte mag vir rekeningdoeleindes vrygestel word Th e nature of the patient's illness may be disclosed for accounting purposes.

Getuie W itness.

Datum Date____

GetekenSigned....

KlagteComplaint....................................................................................................... .......

Huidige siekte Present illness

SLEGS VIR AFSKEURSTROKIES FOR COUNTERFOILS ONLY

T.P.H. 25B

ONDERSOEK/BEHANDELING/VORDERINGEXAMINATION/TREATMENT/PROGRESS

T.P.H. 253

Datum • Date

VV

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T"v (ZK

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r* t/E~TcP> 17.

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T.P.H 25SONDERSOEK/BEHANDELING/VORDERINGEXAMINATION/TREATMENT/PROGRESS

r . _ __ IM J rr^ s ^ X j J i & l i (M ia i U i i 6p iM — a * ^ a ® *

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•

VOORSKRIF . PRESCRIPTION■>»

-H O S P ITA A L A FD ELIK 'G W A R D ...........

7PH172

Pesiini • Patient Pas^ntno-nmer Patent's Number

3 3 2 2 0

/

OuderdOTiAge

InoelngCt£rS,'lC£‘.T 'l

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1 * -------------- 1glt-n 1

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£•' £ C L. ’ »'£ *':!

. o' ew ivaieni

or equivalent

of CKwivalertt

or equivalent

of ekwivalent

or eqjivetent

A i h-erc'-t v,o?rde ''ofekv.’i;,a ie'ii" rve deur cie ••■csrsi. .v.er je s i.'c tp v.c-rd r.>e d j: oi* c£ r. cat c :e ocedce>.ejroe generiese €*<r.;va!eT tvtgere* rr,£; wore.

If the w c-’QE " o r eojivalent" a>e no! deleted by the pre s^.te ; t*s v..i! ,r.z-zi.'.i that the approved generic equivalent may be s^pp.'lec.

TO s THE SUPERINTENDENTN A TA LSP R U IT H O S P ITA L

CONSENT TO SUPPLY C O N FID EN TIA L MEDICAL REPORT

NAME OF P A T IE N T j Tl+eWlfeft ^

H 0 5 P ITA L REFERENCE NO : /&) ~2-DATE OF TREATM ENT s

I» the undertionedi

__ __V y < ^ - Br W___ b/V b A

do hereby request and authorize you to give a medical report on the injuries sustained and treatment received by me, and to supply copies of all medical records, x-rays and records of any other form of treatment to : -

THE S TA TE ATTORNEY . . . .8B8 ROYAL S T.M A R Y ’ S B U ILD IN G

85 ELOFF S TR EET P R IV A TE BAG X9

JOHANNESBURG

as a matter of urgency.

I have fully considered the implications of my actions and authorize you to give all my medical records to my legal representatives or any private doctor they may advise me to see.

SIGNED at g<£^pn this the ‘fa"tlay of

AS W ITNESSES * -

ecJZtPPL'i<^

SI GNA TJrI o’/^OnSei^TeI^’ OR RIG H T HAND THUMB

PH 466IN THE SUPREME COURT OF SOUTH AFRICA (HITWATERSRAND LOCAL D IV IS IO N ) CASE NO * 95/56570

In th e m a tte r betw een tDADA. Themba W esley

and

THE M IN ISTER OF LAW AND ORDER

N O TIC E IN TERMS OF RULE 37

KINDLY TAKE NOTICE that Pleadings in this matter having closed, the Defendant is hereby requested to attend a conference at a mutually convenient time and place with the object of reaching a agreement of possible ways of curtailing the duration of the Trial in this action and in particular as to all or any of the matters mentioned in Rule 37(1)(a ) of the rules of the Above Honourable Court.

DATED at JOHANNESBURG on this the 5 day of JANUARY 1993.

NICHOLLS, CAMBANIS,AND SUDANOATTORNEYS FOR PLAINTIFF S3RD FLOOR, KINE CENTRE 141 COMMISSIONER STREET JOHANNESBURG REF : VS/PP/EE

TO : THE REGISTRAR OF THE ABOVE HONOURABLE COURT

- E -

AND TO : THE STATE ATTORNEYDEFENDANTS ATTORNEYS 888 ROYAL ST.MARY’S BUILDING 85 ELOFF STREET JOHANNESBURGREF : M r .Bowen/668£/9£/P5

Received c o d v hereof on t h i s

FOR : DEFENDANT’S ATTORNEYS

IN THE SUPREME COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISIONS

Case Number : 92/26570

In the matter between:

PAPA. Themba Wesley Plaintiff

and

MINISTER OF PEFENCE Defendant

NOTICE OF INTENTION TO AMENP PEFENPANT’S PLEA

BE PLEASED TO TAKE NOTICE that Defendant intends to amend his Plea as follows:

1. By deleting the citation of the Defendant as "Minister of Law and Order" and by substituting it with "Minister of Defence".

2. By the addition of the following alternative to paragraph 3 of Defendant’s Plea (ad paragraph 3 of Plaintiffs Particulars of Claim):

"3.2 Alternath’ely and in the e\’ent of it being found that the Plaintiffwas assaulted/that any physical act/s was/were committed against

Page 2

the Plaintiff, as alleged or at all, by a member or members cf the South African Defence Force, then the Defendant pleads as follows:

3.2.1 In terms of Government Notice No. 13519, Proclamation No. R2242 cf 9 September 1991, the Minister cf Law and Order in terms of Section 5A(1) cf the Public Safety Act, No. 3 of 1953, declared that public disturbance, disorder, riot and public violence were occurring or threatening in inter alia the Tokoza area, as demarcated and described in Government Notice No. 511 cf 10 April 1959, as amended, as from 9 September 1991. In terms cf Proclamation No. R2243,1991, cf 9 September 1991, the Minister of Law and Order in terms cf Section 5A cf the Public Safety Act proclaimed certain regulatiom ("the

Regulations"). Proclamations R2242 and R2243were valid and in force on 8 April 1992.

3.2.2 Regulation 12( 1) cf the Regulations provides that no civil proceeding shall be instituted against any member cf the Cabinet cf the Republic cf South Africa or any member cf a Security Force by reason cf any act in good faith advised, commanded, ordered, directed or perf ormed by any person in the canying out cf his duties or the exercise cf his powers, or the performance cf his functions in terms cf the Regulations as therein more fully provided, with the intent to combat or to prevent public disturbance, disorder, riot or public violence or to maintain or to restore public order or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result cf such public distui bance, disorder, riot or public violence or the combating or prevention thereof.

Page 3

3.2.3 The Defenda?ti is a member of the Cabinet cf the Republic cf South Africa.

3.2.4 The member or members of the South African Defence Force, as alleged by the Plaintiff to have assaulted Plaintiff/committed physical acts against the Plaintiff, was a member/were members of a Security Force, as provided for in the Regulations.

3.2.5 The place at Phola Peak, Tokoza, where the assault/ physical acts allegedly took place, is a place where the said Proclamations were valid and binding as at 8 April 1992.

3.2.6 The assault of/physical acts against Plaintiff was an act/were acts in good faith advised, commanded, ordered, directed or performed by a person or persons in the carrying out of his/their duties or the exercise cf his/ their powers or the peiformance of his/their functions in terms cf the Regulations, as more fully provided in Regulation 12(1).

3.2.7 In the premises the Plaintiff has no cause cf action as alleged and is not entitled to institute the said action."

The Defendant tenders the wasted costs (if any) occasioned by the proposed amendment and subsequent amendment, save for the costs of opposition thereof.

BE PLEASED TO TAKE FURTHER NOTICE that unless objection in writing is made to the proposed amendment within ten (10) days, the Defendant will amend the pleading in question accordingly.

TAKE NOTICE FURTHER that if no objection in writing be so made, the Plaintiff shall be deemed to have agreed to the amendment.

.. Page 4

If objection be made within the said period in terms of Rule 28(4) of the Rules of Court, the Defendant shall within ten (10) days of the receipt of such objection, apply to Court on notice for leave to amend and shall set the matter down for hearing. _

DATED AT JOHANNESBURG ON THIS 5th DAY OF MARCH 1993.

STATE ATTORNEYDefendant’s Attorneys 888 Royal St. Maiy’s Bldg 85 El off Street JOHANNESBURG Ref: Mr Bowen/ 6682/92/P5 Tel: 29-2961

Page 5

TO: THE REGISTRAR OF THE ABOVEHONOURABLE COURT JOHANNESBURG

AND TO: NICHOLLS & CAMBANISPlaintiffs Attorneys 23rd Floor Kine Centre Commissioner Street JOHANNESBURG Ref: VS/PP/22

Received copy hereof on this the .JJl. day of March 1993.

$Lpj 'for: Plaintiffs Attorneys

WITHOUT PREJUDICETQ RIGHTS

LN THE SUPREME COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case Number : 92/26570

In the matter between:

PAPA. Themba Weslev Plaintiff

and

MINISTER OF PEFENCE Defendant

NOTICE IN TERMS OF RULE 28(5)

TAKE NOTICE THAT:

(a) as the Defendant filed a Notice of Intention to Amend its Plea on 9 March

1993; and

(b) as no objection was made in writing to this said notice of amendment;

the Defendant hereby files the amended pages to its Particulars of Claim.

DATED AT JOHANNESBURG ON THIS 1st DAY OF APRIL 1993.

S T A i f e m N E YDefendant’s Attorneys 888 Royal St. Mary’s Bldg 85 Elon Street JOHANNESBURG Ref: Mr Bowen/

6682/92/P5 Tel: 29-2961

TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG

AND TO: NICHOLLS & CAMBANISPlaintiffs Attorneys 23rd Floor Kine Centre Commissioner Street JOHANNESBURG Ref: VS/PP/22

Received copy hereof on this the ...f?... day of April 1993.

for: Plaintiffs Attorneys

WlTH°UTPf*,r° eights,0ic*

IN. THE SUPREME COURT QF SOUTH AFRICA

(W IJWATERSRAND LOCAL DIVISION)

Case Number : 92/26570

In the matter between:

PAPA. Themha Weslev Plaintiff

and

MINISTER OF PEFENCE Defendant

PEFENPANT’S A M EN PEP PLEA TO PLAINTIFFS PARTICULARS OF CLAIM

1. A P PARAGRAPH 1:

Save to admit that Plaintiff is Themba Wesley Pada, Defendant has no

knowledge of the remaining allegations contained in this paragraph, accordingly

denies same and puts Plaintiff to the proof thereof.

2. A P PARAGRAPH 2:

Defendant admits the contents of this paragraph.

Page 2

3. AD PARAGRAPH 3 :

Defendant denies the contents of this paragraph and puts Plaintiff to the proof

thereof.

32 Alternatively and in the event of it being found that the Plaintiff

was assaulted/that any physical act/s was/were committed against

the Plaintiff, as alleged or at all, by a member or members of

the South African Defence Force, then the Defendant pleads as

follows:

3.2.1 In terms of Government Notice No. 13519, Proclamation

No. R2242 of 9 September 1991, the Minister of Law

and Order in terms of Section 5A(1) of the Public Safety.

Act, No. 3 of 1953, declared that public disturbance,

disorder, riot and public violence were occurring or

threatening in inter alia the Tokoza area, as

demarcated and described in Government Notice No.

511 of 10 April 1959, as amended, as from 9 September

1991. In terms of Proclamation No. R2243, 1991, of

9 September 1991, the Minister of Law and Order in

terms of Section 5A of the Public Safety Act proclaimed

certain regulations {"the Regulations"). Proclamations

R2242 and R2243 were valid and in force on 8 April

1992.

3 2 2 Regulation 12(1) of the Regulations provides that no

civil proceeding shall be instituted against any member

of the Cabinet of the Republic of South Africa or any

member of a Security Force by reason of any act in good

faith advised, commanded, ordered, directed or

performed by any person in the carrying out of his duties

or the exercise of his powers or the performance of his

functions in terms of the Regulations as therein more

fully provided, with the intent to combat or to prevent

public disturbance, disorder, riot or public violence or

to maintain or to restore public order or for dealing

with any circumstances which in his opinion have arisen

or are likely to arise as a result of such public

disturbance, disorder, riot or public violence or the

combating or prevention thereof.

Page 3

32.3 The Defendant is a member of the Cabinet of the

Republic of South Africa.

32.4 The member or members of the South African

Defence Force, as alleged by the Plaintiff to have

assaulted Plaintiff/committed physical acts against

the Plaintiff, was a member/were members of a Security

Force, as provided for in the Regulations.

3.2.5 The place at Phola Park, Tokoza, where the assault/

physical acts allegedly took place, is a place where the

said Proclamations were valid and binding as at 8 April

1992.

32.6 The assault of/physical acts against Plaintiff was an

act/were acts in good faith advised, commanded,

ordered, directed or performed by a person or persons

in the carrying out of his/their duties or the exercise of

his/ their powers or the performance of his/their

functions in terms of the Regulations, as more fully

provided in Regulation 12(1).

3.2.7 In the premises the Plaintiff has no cause of action

as alleged and is not entitled to institute the said action.

AD PARAGRAPHS 4. 5. 6. 7 and 8 :

Defendant denies the contents of these paragraphs and puts Plaintiff to the

proof thereof.

AD PARAGRAPH 9 :

Page 5

Defendant admits a demand and a failure or refusal to pay, but pleads that

Defendant is not legally liable to pay the amount claimed or any portion

thereof.

WHEREFORE Defendant prays that Plaintiffs claim be dismissed with costs.

i

tWITWATERSRAND LOCAL DIVISION)

Case Number : 92/26570

In the matter between:

PAPA. Themba Wesley Plaintiff

and

TTTK MINISTER OF DEFENCE Defendant

IN THE SUPREME__COURT QF__ SQUTB AFRICA

DEFENDANT'S REQUEST FOR FURTHER PARTICULARS FOR PURPOSES OF TRIAL, WITH REFERENCE TO PLAINTIFF'S PARTICULARS OF CLAIM

1. AD PARAGRAPH 1:

1.1 A copy of Plaintiff's birth certificate is requested.

1.2 Where was Plaintiff resident at the time of the alleged assault referred to in paragraph 3 of Plaintiff's Particulars of Claim?

1.3 Was Plaintiff employed at the time of the allegedassault and, if so, full details of his employer are required.

Page 2

1.4 Is Plaintiff a South African Citizen?

1.5 If not, does Plaintiff have permanent residencein South Africa or a work permit to work in South Africa and if so, documentary proof of same is required, alternatively full details thereof.

AD PARAGRAPH 3:

2.1 Was Plaintiff assaulted by one or more members of the South African Defence Force?

2.2 If more than one member, how many members assaulted Plaintiff?

2.3 Plaintiff is requested to give a description of each of the members responsible for his assault in order to enable Defendant to identify the said member(s).

2.4 Was/were the member(s) clothed in uniform? If so, a description of the uniform is requested.

2.5 On what basis is it alleged that Plaintiff was

■ U j i l ■lr-»*Pw

%

Page 3

assaulted by a member(s) of the South African Defence Force?

2.6 Where exactly in Phola Park was Plaintiff at the time of the assault?

2.7 When exactly was Plaintiff assaulted, with specific reference to the date and time of the

i assault?

3. AD PARAGRAPH 4 ;

3.1 The x-rays reflecting the fracture to Plaintiff's left arm are reguired.

3.2 Where exactly was the fracture to Plaintiff's left arm?

3.3 What caused Plaintiff's left arm to fracture?

3.4 What was the extent of the swelling to the right arm?

4. AD PARAGRAPH 5 :

Page 4

4.1 Does Plaintiff still suffer from a disability as regards the use of his left arm?

4.2 If so, to what extent is Plaintiff still unable to use his left arm?

AD PARAGRAPH 7.1 (LOSS OF PAST EARNINGS):

5.1 Salary advices or any other acceptable proof of earnings for the six months prior to the incident and six months subseguent to the incident, are reguired.

5.2 Plaintiff is reguested to furnish a consent to inspect these documents at the office of the Receiver of Revenue, together with his reference number at the Receiver of Revenue.

5.3 Proof of employment is reguested. More parti­cularly:

5.3.1 Where was Plaintiff employed at the time of the alleged incident? The full address of his employer is reguested.

Page 5

5.3.2 What is his present salary?

5.4 During which months was Plaintiff unable to work?

AD PARAGRAPH 7.1 (PAIN SUFFERING AND CONTUMELIA):

6.1 Does Plaintiff still suffer from any pain as a result of the alleged assault?

6.2 If so, what is the extent of the pain and suffering?

6.3 If Plaintiff does not suffer from pain any longer, when did the pain and suffering cease?

6.4 Does Plaintiff reguire any further medical treatment as a result of the alleged assault?

6.5 If so, Plaintiff is reguired to furnish full details thereof.

6.6 How is the amount of R30 000,00 calculated?

Page 6

DATED AT JOHANNESBURG ON THIS THE 12th DAY OF JULY 1993.

K. LOWIESDefendant's Counsel

f t

STATO^ATTODefendant7

ATTORNEY1 s Attorney

888 Royal St. Mary's Bldg 85 Eloff Street JOHANNESBURG Ref: Mr Bowen/

6682/92/P5 Tel: 29-2961

TO: THE REGISTRAR OF THE ABOVEHONOURABLE COURT JOHANNESBURG

AND TO: NICHOLLS, CAMBANIS & SUDANO Plaintiff's Attorneys 23rd Floor Kine Centre141 Commissioner Street JOHANNESBURGRef: Ms C H Nicholls Received copy hereof on the

a day of Jvrffy 1993.

jfor: Plaintiff's Attorneys

WITHOUT PREJUDICE

f . > ’— ----------n*iVt<JL.UUI&lt> m HALHULUtZ 'Dt. HVftlEXUNTZ Dr 1SSY JAFFE Dr. RALPH POSNERDr. PAUL SPIRO • Dr. ERROL PAPERT Assisted ByDr. IAN SCHMAMAN Dr. ARNO PRETORIUS Dr. HAROLD BLOCH *Dr. RODNEY MILLER Dr. BRIAN PAPERT Dr. VICTOR GOUWS

i 301 Lister Building / Gebou Jeppe Street / Straat P.O Box ! Posbus 4878 Johannesburg 2000 Tel: 337-5022{ Sandton Clinic / Kllniek. Lyme Pork Momlngside Clinic / Kliniek Kempton Park, Trust Bank Emergency / Noodgevalle

Tel: 706-6166 Hill Road off Rivonla Road Tel: 063-3320 Tel: 975-0121. 975-0191 Autopage Tel: 804*2777

MEDICO LEGAL DOI: Oh /09/93A/A Sffv

DEL.Z^E-385 M o r n i n g s i d e ( G e n e r a l )

MR WESLEY DADA NICHOlLS CAMBAM1E L 3UDANQ— Bl)aJOHANNESBURG 2000 06/09/93i '

DR G OERSF'ELDI

I

rP R A C T I C E NO 38 00452

L E F T HUMERUS, L E F T ELBOW AND L E F T FOREARM

T h e r e i s some f l a r i n g n o t ed i n v o l v i n g t h e d i s t a l l a t e r a l h u m e r a l c o n d y l e . T h i s may tss- r e l a t e d t o an o l d - f r a c t u r e . T h e r e i % , h o w e v e r , n o - a b n o r m a l a n g u l a t i o n o r d e v i a t i o n o f t h e d i s t a l p a r t o f t h e h u m e r u c .I n t h e l a t e r a l v i & w > t h e a l i g n m e n t o f t h e d i s t a l o a r t o f t h e h u m e ru s is e n t i r e l v n o r m a l .

No o t h e r a b n o r m a l i t S e s a r e n o t e c i n r e l a t i o n t o t h e e l b o w j o i n t . T h e r e i s no e v i d e n c e of- an e f f u s i o n .

No d e g e n e r a t i v e c h a n ge s a r e p r e s e n t .

T h e r s i s an o' la u n i t e d f r a c t u r e i n v o l v i n g t h e p r o x i m a l u l n a . T h i s i s s i t u a t e d a p p r o x i m a t e ! v ?cn f r o m t h e p r o x i m a l end of t h e u i n a ,No aanorm =ii a n g u i a t i o n o r d e v i a t i o n o f t h e d i s t a l u l n a r

£'■) f r a g m e n t j n o t e d .

T h e r e a r e no o l d f r a c t u r e s nutesj i n v o l v i n g t h e r a d i u s .T h e r e i s a no r ma l b o n y t r a b e c u l a r p a t t e r n .No bony brlaying is not&d b<“twef»n the? raoiys and ulna.

CONCLUSION

T h e r e i s some f l a r i n g n o t e d i n v o l v i n g t h e d i s t a l l a t e r a l h u m e ra l c o n d y l e . T h i s may be r e l a t e d t o o l d t r a u m a .No o t h e r a b n o rm a l i t i e s o f t h e d i s t a l h: imerus a r e n o t e d . T h e p r o x i m a l hum erus i s n o r m a l i n a p p e a r a n c e .

No a b n o r m a l i t i e s o f t h e e l b o w j o i n t a r e n o t e d .

PA­ TH e r e i s an

n n v i w k u u w 1 9 n/tLf/wirUC

Dr. HtWilE LUNTZ Dr PAUL SPIRO Dr IAN SCHMAMAN Or. RODNEY MILLER

Dr. ISSY JAFFE Dr. gflROL PAPER!Dr. ARNO PHtTORlUS Dr. BRIAN PAPERT

Dr. RALPH POSNER Assisted By:Dr. HAROLD BLOCH Dr. VICTOR GOUWS

301 Lister Building / GebouSandlon Clinic / Kliniek, Lyme Park

Tel; 706*6166

E / -

Jeppe Street / Stiaat P.O. Box / Morningslde Clinic / Kliniek

Hill Road off Rivonia Road Tel: 883-3320

Posbus 4878 Johannesburg 2000 Tel: 337-5022Kempton Park, Trust Bank Emergency / Noodgevslle Tel: 975-0121.975-0191 Autopage Tel: 804-2777

MR W ESLEY PAPA 6-9-1-593

fn e re i s an o l d u n i t e d f r a c t u r e o-f t h e p r o x i m a l t h i r d o f t h e y l n f l . T h e a l i g n m e n t o-f t h e d i s t a l - f ragment i s s a t i s - f a c t o r y „No a b n o r m a l i t i e s o-f t h e r a d i u s art? n o t e d .

C

DR ERROL PAPERTE P / d c c

Collection Number: AK2702 Goldstone Commission of Enquiry into PHOLA PARK Records 1992-1993 PUBLISHER: Publisher:-Historical Papers, University of the Witwatersrand Location:-Johannesburg ©2012

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