This delict is committed when a person unlawfully and intentionally applies force to the person of another or has threatened to do so in a manner that inspires a reasonable fear of immediate danger in the mind of the person threatened.
Damages are awarded under this action both for patrimonial loss (e.g. hospital expenses) and for injury to feelings (e.g. humiliation and degradation).
As regards assaults and torture perpetrated upon persons in police custody, in Nyandoro v Minister of Home Affairs & Anor HH-196-10 P claimed damages for an assault by members of the police force. He had been involved in a peaceful demonstration organised by a non-government organization. The police had broken up the demonstration. P was caught and assaulted by about 10 to 12 policemen. P was further assaulted at the police station. The injuries he received resulted in hospitalization and surgery. The court held that the assaults upon P’s physical integrity were unlawful in that they were perpetrated without lawful authority. They were also patently wrongful as being demonstrably incompatible with boni mores and the legal convictions of the community concerning the exercise of police powers. It is necessary to take into account the public and private embarrassment suffered by P as a result of the wrongful conduct. P was initially assaulted in a public place in full view of his colleagues and passers-by. The photograph of the assault was also published for all of the newspaper’s readers to see. The assault was aggravated by the fact that it was committed by members of the police who are State servants paid from public funds. P was consequently humiliated and embarrassed and must therefore be entitled to appreciable damages for contumelia.
In Vellah v Moyo & Anor HB-101-10 an elderly pastor was assaulted by being severely beaten on his buttocks after being accused by members of a political party of belonging to the MDC party. He was awarded substantial damages.
Manuel v Holland 1972 (2) RLR 18 (GB) D struck P with such force that he fell to the ground and broke his leg. D was liable as causation had been established.
Mapuranga v Mungate 1997 (1) ZLR 64 (H) The court awarded damages to P for unlawful imprisonment. There had been an incident at D’s house, where D accused P of having committed adultery with D’s wife. When P denied the allegation, he was assaulted by D & Ors, including D’s brother, then prevented from leaving D’s house before being forced into D’s car and taken against his will to a traditional healer, where he was forced to drink a herbal concoction which caused him to lose consciousness. The court held that it is an actionable wrong to administer a deleterious herbal concoction to an unwilling victim, but P does not have to show that the substance was poisonous. It need not be poisonous; forcing someone to drink any substance could constitute an assault. Procuring another person to administer a concoction renders the procurer as liable as the person who administered it.
In Robinson v Fitzgerald 1980 ZLR 508(GS) there had been a vicious unprovoked assault on a man in the presence of his wife and employer. He was awarded damages for assault including damages for humiliation.
In Ndeweni v Cloete HB-71-13 the court said that when a party starts a fight with another and risks injury to himself. Therefore the court cannot determine liability by comparing injuries and awarding damages to one who suffered worse injury than the other.
Joseph v Dennison GS-137-75 damages.
M v N 1981 (1) SA 136 (Tk) damages for rape.
Defences to action for assault
The main defences that can be raised to this action are:
- The harm was inflicted when D was acting under some lawful authority e.g. a policeman effecting a lawful arrest or a parent moderately chastising his child for disciplinary purposes;
- Defence of person or property;
- Consent (such as where a doctor obtains the consent of the patient to operate for therapeutic purposes);
- Provocation. (In Zimbabwe, there is case law which lays down that provocation may sometimes justify an assault, whereas in South Africa the cases maintain that provocation never justifies an assault, but may sometimes deprive P of his right of recovery.)