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[2017] ZAWCHC 98
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Mdiko v Minister of Police (17042/2009) [2017] ZAWCHC 98 (13 September 2017)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17042/2009
Before
the Hon. Mr Justice Bozalek
Hearing:
7- 10; 21; 22 & 24 August 2017
Judgment
Delivered: 19 September 2017
In
the matter between:
NTOMBIZAKE
MDIKO
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
BOZALEK
J
[1]
The
plaintiff brought an action for damages against the defendant, the
Minister of Police, arising out of the alleged wrongful killing
of
her late husband, Mr Lunga Mdiko (‘the deceased’), by a
police officer, (now) Sergeant Vuyolwethu Mantashe (‘Mantashe’).
The issue before the Court was the determination of the merits of the
claim. In short the plaintiff pleaded that on 31 May 2008
her husband
was unlawfully and wrongfully shot and killed by Mantashe acting
within the course and scope of his employment with
the defendant. The
defendant admitted that Mantashe shot and killed the deceased and in
doing so was acting within the course and
scope of his employment. He
pleaded however that Mantashe had acted lawfully and reasonably in
that the deceased had unlawfully
and without provocation launched an
unlawful attack upon Mantashe who had reasonable grounds for
believing, and did believe, that
he was in grave physical danger;
further that Mantashe’s use of force was necessary in the
circumstances to repel the unlawful
attack.
[2]
The
parties correctly accepted that the onus of proving self-defence lay
on the defendant
[1]
as a result
of which the defendant led the evidence of its two witnesses,
Mantashe and a police photographer, first. The plaintiff
called the
evidence of only one witness a Mr Basil Zamuxolo Daba (‘Daba’)
before closing its case.
[3]
Although
both eyewitnesses purported to be describing the same events and
there were many aspects common to their evidence, there
were also
critical differences. In order to establish the facts it is necessary
to set out the evidence of both eyewitnesses in
some detail and
evaluate same.
THE
EVIDENCE
Sergeant
V Mantashe
[4]
Mantashe
testified that on 31 May 2008 he was driving a white Mazda on Mew Way
when a white Ford came driving towards him. At that
stage he was a
detective with four years’ experience and was 28 years of age.
It is common cause that the Mazda was unmarked
and that Mantashe was
dressed in civilian clothing. He testified that he had his police
firearm, a pistol, in a holster clipped
to his belt and tucked into
the waist band of his trousers under his leather jacket.
[5]
The
Ford was being driven recklessly over the barrier line so Mantashe
flicked his lights and hooted to warn the driver of the Ford
who
turned out to be the deceased. Mantashe was scared that his vehicle
and the Ford would collide and in fact he had to slow almost
to a
halt to avoid a collision. Immediately afterwards the Ford continued
without stopping so Mantashe made a U-turn in Mew Way
and followed
the Ford, again flicking his lights and hooting, trying to get the
vehicle to stop. At one stage he was able to drive
alongside the Ford
and while doing so held up his left hand which contained his police
identification and a large police badge
(Exhibit G) to show the
deceased that he was a policeman.
[6]
The
two vehicles reached the intersection of Mew Way and Spine Road where
the deceased did not stop but continued through the intersection
and
came to a stop on the other side in the lay by. Mantashe brought his
vehicle to a stop a few meters ahead of the Ford, also
in the lay by.
Before he could step out of his vehicle the deceased and two of the
three male passengers were next to the open
window on Mantashe’s
side of the Mazda. One passenger had dreadlocks and was wearing a red
T-shirt. A fourth man also got
out of the Ford but stood with his
arms folded next to it. Mantashe testified that the deceased was
aggressive, his eyes were red
and his breath smelt heavily of
alcohol. It is common cause that a blood sample later taken from the
deceased showed that the concentration
of the alcohol in the specimen
was 0.19grams per millilitre. Speaking in isiXhosa and with an angry
tone the deceased asked whether
Mantashe was a policeman. Mantashe
answered that he was and the deceased then asked for Mantashe’s
authority. Mantashe referred
again to his police identification,
saying the deceased had already seen it.
[7]
The
deceased then asked whether the Mazda was a police car and started
arguing even when Mantashe answered that it was. The dreadlocked
man
advised the deceased to leave Mantashe alone. The deceased maintained
however that the Mazda was not a police car even though
Mantashe
pulled the mouthpiece of his police radio out to show the deceased.
The deceased then reached into the Mazda and grabbed
Mantashe by his
jacket round the chest area with both hands. The door of the Mazda
was then opened and Mantashe was dragged out
by one of the men but he
was not able to say which one. At this stage the deceased and
Mantashe were facing each other with the
other two men leaning on
Mantashe but doing nothing else. The deceased still had both hands on
Mantashe pulling him hard and a
wrestling match commenced between the
two men.
[8]
Quite
early in the struggle on the deceased spun him around and Mantashe
ended up facing in the direction the vehicles were facing
but being
firmly gripped by the deceased from behind. According to Mantashe the
deceased, who was taller, larger and more muscular,
also began
feeling over Mantashe’s body as he held him in this grip.
Mantashe concluded that the deceased was searching for
his firearm
and when the deceased found it Mantashe brought his hand down so that
both his and the deceased’s hands were
on the firearm. The
deceased and Mantashe then started to struggle over the firearm and
Mantashe called on the dreadlocked man
to stop the deceased from
attacking him but no assistance was forthcoming.
[9]
The
deceased pulled Mantashe from side to side, all the while gripping
him in the manner described. Mantashe continuously tried
to reason
with the deceased asking him to stop and calling him ‘
bhuti’
.
The deceased did not answer however only breathing heavily. Mantashe
kept trying to pull away from the other two men, moving away
from the
vehicles in the direction in which they were facing. On two occasions
during the struggle the dreadlocked man stopped
passing taxis and
unsuccessfully urged the drivers to shoot Mantashe. At some point a
shot went off from Mantashe’s firearm
and the two passengers
hung further back. The deceased and Mantashe continued to struggle,
moving down Mew Way. At different times
the firearm was pointing in
different directions as the two men struggled over it.
[10]
More
shots went off. The deceased and Mantashe fell to the ground with the
deceased on top of Mantashe. They both stood up again,
with the
deceased still behind Mantashe reaching around him and gripping him.
At one point during the prolonged struggle Mantashe
bit the
deceased’s left hand and the deceased bit Mantashe on his back.
The deceased kept trying to point the firearm at
Mantashe who at one
stage allowed the deceased to bend his wrists and point the gun in
his (Mantashe’s) direction while both
the deceased and
Mantashe’s hands were on the trigger. Mantashe then allowed the
trigger to be pulled as he moved and a shot
went off with the bullet
going through Mantashe’s jacket under his armpit and, he
presumed, hitting the deceased because
he felt the latter’s
body jerk behind him.
[11]
This,
however, only made the deceased ‘
angrier’
.
Once again Mantashe allowed the deceased to point the firearm back at
him (Mantashe), but towards his lower face, throat and chest.
Mantashe then moved his upper body to the right and pulled the
trigger with the result that the shot struck the deceased. Mantashe
felt the deceased’s body sliding off him to the ground,
bringing to an end the struggle which, he estimated, had lasted about
three minutes. Mantashe then ran back to his Mazda to call for police
reinforcement using his police radio. He testified of his
belief that
when the deceased realised he was a policeman and knew that he was
alone he must have decided to rob him of his firearm
and that he,
Mantashe, had believed that if the deceased had got hold of his
firearm he would have shot him with it.
[12]
A
prosecution was commenced against Mantashe for murder which carried
on for many years until it was struck off the court roll as
a result
of the unavailability of state witnesses. Mantashe testified that he
pleaded not guilty but no evidence was led against
him. Internal
disciplinary steps were also taken against him and he appeared before
a police tribunal facing four charges of breaching
the police code of
conduct. According to discovered documents in the trial bundle
Mantashe was found guilty of two charges but
in my view of the
lack of any direct evidence on these aspects and the lack of
relevance of these ‘
convictions’
I shall disregard all but the fact of the criminal and disciplinary
proceedings.
Mr
B Z Daba
[13]
At
the time of giving evidence Daba was 60 years of age and employed as
a machine operator. He testified that on the day in question
he was
driving down Spine Road and noticed Mantashe’s Mazda about 12
meters ahead of him and ahead of that the deceased’s
Ford. Both
vehicles were driving normally but the driver of the Mazda had his
right hand out of his window and was making hand
gestures to the Ford
driver to stop. When the vehicles reached the intersection of Spine
Road and Mew Way the Ford turned right
and stopped in the nearby
layby. The Mazda followed and stopped in front of the Ford. Daba
thought the two vehicle owners were
friends and that they were
driving together and he initially proceeded on his way down Spine
Road. He soon made a U-turn however
when he realised that he wanted
to visit a friend who lived in the opposite direction. As he
approached the self-same intersection
he became aware of a commotion
emanating from the drivers of the Ford and the Mazda. The deceased
was standing alongside the Ford
and Mantashe was standing between the
two vehicles. Their voices were loud with Mantashe demanding the
deceased’s driver’s
licence and the deceased demanding
Mantashe’s police authority.
[14]
Daba
was then approached by someone asking what was going on and he
answered him. When he turned back to the two men he saw that
the
deceased was holding Mantashe from behind. The deceased’s hands
were clasped together over Mantashe’s chest pinning
Mantashe’s
right hand which was holding a firearm against the latter’s
chest with the firearm pointing to his left.
Daba could not see where
Mantashe’s left hand was. Prior to this Daba had not seen any
firearm in the possession of either
man. The two men remained in this
position throughout the struggle that ensued.
[15]
Daba
remained standing alongside his vehicle which was parked on the
opposite side of the road to the Mazda and the Ford, watching
the men
wrestle along the pavement. They fell down and got up again but held
the same position throughout. Mantashe was repeatedly
asking the
deceased to let go of him whilst the deceased was repeatedly asking
Mantashe why he (Mantashe) wanted to shoot him.
A shot then went off
but Daba was not able to say where it went. It shocked him however
and he climbed into his vehicle and reversed
back down Mew Way in
order to take himself out of danger. After reversing his car down way
for some distance Daba again alighted
from his vehicle and witnessed
the two men slowly making their way down Mew Way towards him,
struggling all the while still with
the deceased gripping Mantashe
from behind thereby pinning Mantashe’s arm holding the firearm
to his chest.
[16]
Daba
testified that the deceased appeared to get tired and eventually
released Mantashe from his grasp at the same time lifting
both his
hands into the air in the classic gesture of surrender. As he did so
the deceased said in isiXhosa ‘
uxolo
bhuti’ – ‘sorry boetie’
.
Having been released Mantashe was able to turn around which he did
and at a very close distance to the deceased he shot him in
the upper
part of his body, possibly the head. As he did this Daba called out
‘
no
my brother’
or words to that effect in isiXhosa to restrain Mantashe from
shooting the deceased but it was too late. The deceased immediately
fell to the ground. Mantashe then went back to his vehicle in Mew Way
further up the road and called the police. Within some ten
minutes
police reinforcements arrived.
[17]
Daba
testified that he watched the struggle between the two men throughout
but he was not able to explain hearing only two shots
i.e. the one
that caused him to reverse his vehicle taking himself out of harm’s
way and the second, apparently fatal, shot
after the deceased had
surrendered.
Other
evidence
[18]
Further
evidence was put before the court by way of formal admissions, a
post-mortem report, a ballistics report, photographs taken
at the
scene, a sketch plan (not to scale) of the scene and photographs of
Mantashe taken after the shooting.
[19]
As
far as admissions are concerned it was admitted on behalf of the
defendant that after the shooting a firearm with one magazine
and
three live 9mm rounds were confiscated from Mantashe, that the police
collected five cartridge cases, one cartridge i.e. an
unfired round
and one bullet (i.e. the bullet tip) from the scene of the shooting.
The accuracy of the post mortem report and the
blood sample taken
from the deceased were similarly admitted.
[20]
Photographs
of the scene of the shooting were put before court, showing the
position of the Ford and the Mazda vehicle in Mew Way
with the
deceased’s body lying approximately 40 – 60 meters
further down the road. On the opposite side of the road
to the
deceased’s body was a vehicle identified by Daba as his. The
same scene is depicted in another photograph from the
opposite angle
but there the vehicle identified by Daba as his appears to be absent.
Explaining the absence of his vehicle in the
second photograph Daba
testified that at a certain point the police had asked him to move
his vehicle.
[21]
Photographs
of Mantashe taken some hours after the scene show at least two bite
marks on his left upper back. A photograph of the
white leather
jacket he was wearing shows blood stains on the left front together
with a hole in the left upper front a few inches
below the armpit.
The
post-mortem report
[22]
The
post-mortem’s chief findings were that the deceased’s
body had two entry gunshot wounds to the chest as well as
one to the
abdominal wall and one to the right upper leg i.e. four in all. The
track of the gunshot wound to the chest perforated
the deceased’s
aorta, the right main bronchus and the right lung. The cause of death
was gunshot wounds to the body. In laymen’s
terms the deceased
was shot in his right upper inner leg, the bullet exiting nearby. He
was shot in his left upper waist area,
the bullet exiting through his
buttock. He was shot in his left upper chest, near the armpit, the
bullet exiting nearby. He was
then shot through his upper midchest
the bullet exiting from his back, lower down. It was this last bullet
which perforated the
pericardium, the aorta and the bronchus. The
bullet wound to the leg and to the left chest area only passed
through soft tissue
inflicting no serious vascular injuries.
Analysis
of the evidence and an evaluation of the witnesses
[23]
In
a comprehensive and well prepared argument the defendant’s
counsel, Ms Erasmus, urged the court to accept the evidence
of
Mantashe and reject that of Daba. Her main criticism of the latter’s
evidence was that despite having claimed to have
viewed the entire
incident Daba could give no explanation for hearing any more than two
shots when at least three more must have
been fired during the
struggle. Counsel also sought to cast doubt on Daba’s evidence
by reason of the absence of his vehicle
in one of the photographs
taken at the scene of the shooting. She submitted further that Daba
may only have had a passing, partial
view of the incident inasmuch as
Mantashe testified that during the struggle a sedan vehicle had
driven passed slowly at some point.
This, it was suggested, must have
been Daba’s vehicle.
[24]
When
regard is had to the evidence of Mantashe and Daba there are many
similarities but also striking divergent aspects.
[25]
Firstly,
the differences. Mantashe testified that the vehicles were in Mew Way
from the beginning of the incident i.e. from when
the Mazda was
allegedly recklessly driven right to the end of the incident. Daba,
on the other hand, testified that the vehicles
had initially been
proceeding down Spine Road and turned right into Mew Way before
stopping in the lay by. Secondly, Mantashe testified
that before he
could alight from his vehicle he had been cornered and confronted so
to speak whilst still in his vehicle. He testified
that two of the
deceased’s passengers had played a threatening role in the
early part of the confrontation. According to
Daba when he first saw
the deceased and Mantashe at the layby both were out of their
vehicles and not struggling; furthermore,
the three passengers in the
Mazda had remained in the vehicle throughout, only emerging after the
deceased was fatally shot.
[26]
Thirdly,
Mantashe testified that he never drew his firearm and that it was
pulled from his holster during the struggle by the deceased.
Daba did
not testify precisely how the firearm was first produced but the most
likely inference to be drawn from his evidence is
that Mantashe must
have drawn his firearm early on before the struggle between the two
men commenced. Fourthly, Mantashe testified
that during the struggle
the dreadlocked man twice dropped stopped passing taxis and
unsuccessfully urged the drivers to kill Mantashe.
Finally, and most
importantly, Daba testified that Mantashe shot the deceased when the
latter had his arms in the air in a gesture
of surrender and was
apologizing to Mantashe. On the other hand, Mantashe testified that
the last and presumably fatal shot had
been fired by him when the
firearm was pointing back at him but that he had moved to the side at
the last second, this being the
only way that he could shoot the
deceased and ward off his unlawful attack.
[27]
It
was common cause in the evidence of the two witnesses was that there
was an initial argument between the two men with the deceased
demanding proof of Mantashe’s authority as a police officer;
further that there had been a prolonged struggle during which
the
deceased had gripped Mantashe from behind, clasping his arms –
in effect a struggle for control of Mantashe’s firearm.
[28]
Mantashe
gave his evidence with considerable confidence and articulacy. He is
clearly an intelligent person but this manifested
often in
argumentative and, at times, arrogant replies to questions put to him
in cross examination. He also impressed as an emotional
witness who,
at times during his evidence, gave highly animated descriptions and
explanations of events of the fateful day. Although
he fared quite
well under cross-examination there were, however, several important
aspects of his evidence which appeared to be
improbable.
[29]
The
first is the unlikelihood of Mantashe, as a trained police officer,
being unable to alight from his vehicle after pulling up
a few meters
in front of the Mazda with the result that in effect it was the
deceased and his passengers who were confronting him.
His evidence in
this regard was at odds with that of Daba. The impression left by
Mantashe’s evidence in this regard is that
he was pulled over
by the deceased rather than vice versa.
[30]
A
second aspect is the contrast between Mantashe’s evidence that
he identified himself as a policeman early on even before
the
vehicles stopped by showing his police identification and his further
evidence that the dispute which marked the early part
of the
confrontation was characterised by the deceased trying to establish
whether Mantashe was a policeman or not. If, as Mantashe
testified,
he successfully showed his police identification to the deceased
while both were still driving – incidentally
something not
mentioned in Mantashe’s statement – why would the
deceased persist in demanding such identification after
the vehicles
had stopped?
[31]
A
further improbable aspect was Mantashe’s evidence that during
the struggle the dreadlocked man several times called upon
passing
taxi drivers to shoot Mantashe. This evidence, which also was flatly
contradicted by that of Daba’s, is simply improbable
on its own
terms. Further, there is the remarkable, and critical, improbability
of Mantashe being able to fire the last and fatal
shot into the
deceased’s chest, backwards to so speak i.e. while still being
gripped by the deceased from behind, an issue
to which I shall
return.
[32]
A
further troubling aspect of Mantashe’s evidence, although it is
unrelated to the probabilities, was the fact that notwithstanding
that he was criminally charged with murder arising out of the
incident and faced internal police disciplinary action, Mantashe
only
made a statement regarding the circumstances of the shooting some two
years after the incident and very shortly before the
disciplinary
proceedings commenced. In this regard he sought to explain that he
viewed the investigating officer as biased but
as a detective himself
he must have realised that the sooner he gave his exculpatory version
the less likely he was to face criminal
prosecution and/or internal
disciplinary proceedings.
[33]
Yet
another puzzling factor was the contrast between Mantashe’s
portrayal of the deceased’s two passengers as forming
part of
the initial attack upon him only for them to stand passively by
during the prolonged struggle between himself and the deceased
thereby leaving the latter to his fate. As plaintiff’s counsel
submitted, if two of the deceased’s passengers were
initially
so threatening to Mantashe, it is difficult to understand why they
stood passively by while the deceased fought a prolonged
and losing
battle for possession of the firearm. I do not find convincing
Mantashe’s explanation that he was pulling the
deceased away
from the deceased’s passengers and that the shots which were
fired may have deterred them. Unhindered, the
two men could have
reached the struggling men in seconds, and, as I understand the
evidence, the shots were only fired some time
into the struggle.
[34]
Daba
made a favourable impression as a witness, and his version of events
contained no conspicuous improbabilities save for how
the struggle
ended, a further critical issue to which I shall return. He testified
in Xhosa and it was clear from his answers that
he was not a
sophisticated person. He was not argumentative, answering all
questions forthrightly. He did not embroider his evidence,
was not
shaken in cross examination and stuck to his version of events. On
the day of the incident Daba gave a statement to the
police which in
all material respects reflected the version to which he testified in
the witness box. Certain discrepancies were
identified but the
witness testified, without being contradicted, that he gave his
statement through a Xhosa interpreter and that
his statement was not
read back to him before he was required to sign it. In the
circumstances I do not consider that these discrepancies
materially
affect the quality of Daba’s evidence.
[35]
Although
Ms Erasmus submitted that Daba’s evidence that he was present
throughout the incident should be rejected, I do not
consider that
there can be any doubt that he witnessed the incident in the manner
that he testified. This is borne out by his detailed
account of
events, much of which tallies with Mantashe’s evidence, and by
his unchallenged identification of his vehicle
in one of the
photographs in the position to which he said he had reversed it.
[36]
The
major criticism levelled against Daba’s evidence was that he
did not hear three of the five shots fired. In my view, however,
this
is quite explicable by reason of the fact that he temporarily removed
himself from the immediate scene of the two struggling
men early on
in the confrontation, namely after he heard the first shot. At that
point he turned his back on the two men, climbed
into his vehicle and
reversed some 40 – 50 meters down what appears to be a busy
road. He testified that he used his right
rear mirror to do so but
that at the same time kept an eye on the two struggling men. Having
regard to the scene and to the photos
it seems quite possible, if not
likely, that it was during this period that further shots were fired.
These could have been muffled
by Mantashe’s or the deceased’s
bodies or clothing or by the engine noise of Daba’s reversing
vehicle and thus
not heard by him. Furthermore, as was pointed out by
the plaintiff’s counsel, if anything the fact that Daba had no
ready
explanation for not hearing the three shots points to his
credibility as a witness. In other words Daba did not contrive an
explanation
or falsely claim to have heard the other shots which must
have been fired.
[37]
Considering
the evidence as a whole it is clear that there must have been an
incident, probably the one described by Mantashe, which
caused him to
pull the Mazda vehicle over. Thereafter a confrontation developed
between him and the deceased. This is not surprising
since the
deceased must have been strongly under the influence of alcohol. What
also seems clear is that what initially troubled
the deceased was
whether Mantashe was a policeman and whether he had the authority to
stop the deceased. This is evidenced by the
account of both witnesses
that the deceased demanded to know whether Mantashe was a policeman
and to see proof of his authority.
The Mazda vehicle showed no police
markings and Mantashe was dressed in civilian clothes. It was his
evidence that he showed his
police identification to the deceased but
initially this was only fleeting i.e. by holding up his card as he
drove alongside the
deceased. There is no corroboration for
Mantashe’s evidence that he did in this manner effectively
identify himself as a
policeman or that the deceased had properly
observed this. As mentioned earlier if Mantashe had properly
identified himself earlier
in the manner he described it is strange
that the deceased would have kept demanding to see his authority as a
policeman.
[38]
On
Mantashe’s account the deceased was hell-bent on seizing his
firearm with a view to using it against him. This strikes
me as
inherently unlikely. Mantashe had not been singled out as a policeman
or a target by the deceased – quite the opposite,
since it was
Mantashe who decided to stop and confront the deceased. In these
circumstances, even accepting that it eventually
became clear to the
deceased that Mantashe was a policeman, it seems unlikely that he
would conceive of the idea of robbing Mantashe
of his firearm in
broad daylight let alone shooting him. In my view it is far more
likely that soon after alighting from his vehicle
Mantashe drew his
previously concealed firearm whereupon the deceased, whether he knew
that Mantashe was a policeman or not and
very possibly because he was
under the influence of alcohol, began to fear for his life. In these
circumstances his response was
to grab Mantashe so as to prevent him
from using his firearm. This scenario is borne out by Daba’s
evidence that throughout
the struggle Mantashe was shouting out
‘
ndiyeke’,
‘let me go’
while the deceased was repeatedly and pleadingly asking Mantashe why
he wanted to shoot him – ‘
uxolo
bhuti, ufuna ukundidubela ntoni’
meaning ‘
sorry
brother, why do you want to shoot me?’
.
[39]
Another
factor suggesting that it was Mantashe who drew his weapon early on
is the apparent ease with which the deceased was able
to find and lay
his hands on the firearm. On Mantashe’s version it was in a
holster clipped to his belt and tucked inside
his waistband and
covered by his leather jacket. In these circumstances one would not
expect the deceased to have spotted the weapon
or to have laid his
hands on it so easily.
[40]
Having
regard to the evidence as a whole what appears to have played out in
all likelihood was a series of tragic misunderstandings.
The deceased
was sceptical that Mr Mantashe was a police officer and acting in the
course and scope of his employment. When Mantashe
drew his firearm
the deceased probably feared that Mantashe intended to shoot him and
grabbed him from behind to prevent him from
doing so. For his part,
when the deceased grabbed him, Mantashe probably believed that the
deceased was intent upon disarming him
and then turning his own
weapon upon him.
[41]
The
ultimate question of whether the defendant’s plea of
self-defence/justification can succeed turns around what happened
in
the last few seconds of the struggle. The fundamental difference
between the evidence of the two witnesses concerned the circumstances
in which the final and fatal shot was fired. On Mantashe’s
version he allowed the deceased to point the firearm back at him
(Mantashe) but then at the last moment he moved his head or upper
body and pulled the trigger, thereby deliberately firing the
fatal
shot into the deceased’s upper chest. On Daba’s version
when the deceased finally released him from his grip
Mantashe turned
and shot the deceased at close range notwithstanding that the his
hands were in the air in a gesture of surrender.
[42]
Although
Daba’s version of these final seconds appears unlikely, and
indeed shocking, on closer examination of the objective
facts and the
probabilities this impression fades. Mantashe had finally got free of
the deceased in what he appears to have believed
was a life and death
struggle for his firearm. The struggle itself was prolonged and
exhausting. Mantashe had already fired four
or five shots to no
apparent avail. In my view it is not far-fetched that in these
circumstances his immediate, and perhaps instinctive,
reaction was to
fire a further shot to immobilise the deceased. As previously alluded
to, even years later Mantashe came across
as having an emotional if
not a volatile personality. At the time of the shooting he was
relatively young, 28 years, comparatively
inexperienced as a
policeman and probably lacking in the judgment necessary to deal with
the crisis situation in which he found
himself. In this regard even
the act of initially producing his weapon to deal with a road traffic
violation when he was alone
and not in uniform was ill-considered. It
was quite significant that in seeking to justify his decision to
pursue and stop the
vehicle being recklessly driven by the deceased
and not call for back-up, Mantashe testified, several times, that,
as a policeman,
he did not have to ‘
yield’
in the face of crime.
[43]
As
previously indicated, Daba undoubtedly created a more favourable
impression as a witness. His evidence included aspects, such
as the
route taken by the Mazda and Ford vehicles, which if he was
fabricating or embroidering his evidence, would have served
no useful
purpose in discrediting Mantashe’s evidence. As it happens
Daba’s description of the route accords with the
location of
Mantashe’s proposed destination which is not the case with the
route that Mantashe claimed to have used. Daba
impressed as a
measured and objective witness and his testimony was both probable
and in accordance with the established facts.
His account of how the
final shot was fired squares with the forensic evidence relating to
the injuries inflicted by that shot.
[44]
By
contrast Mantashe’s explanation of the circumstances in which
the final shot was fired is somewhat difficult to comprehend
and
unlikely, involving as it does him firing a shot back at himself
whilst being gripped from behind by the deceased and, in effect,
dodging the bullet at the last moment. Daba’s account of the
struggle between the two men is wholly credible and does not
portray
either of them as the aggressor According to him both men spoke or
called out during the struggle. Mantashe’s version,
on the
other hand, was a highly coloured one of him fighting for his life
and pleading with the deceased, a silent aggressor intent
only on
seizing his weapon and who, when an earlier shot struck him, was only
made ‘
angrier’
.
[45]
No
reason was suggested why Daba would fabricate evidence portraying
Mantashe as lying in material aspects of his evidence and as
having
shot someone who seemingly no longer posed any threat to him. Prior
to the incident he knew neither of the men. Finally,
Daba’s
version of the critical events, in contrast to that of Mantashe’s,
was recorded almost immediately. His virtually
contemporaneous
statement contains the key elements of his viva voce evidence, most
notably that Mantashe fired the final shot
just after the deceased
lifted his arms in surrender and was apologising.
[46]
For
all these reasons I prefer and accept the evidence of the witness
Daba where there are material conflicts between his version
and that
of Mantashe’s. In particular I accept Daba’s account of
how the final shot was fired.
Self-defence
[47]
It
remains to consider, based on the established facts, the plea of
self-defence raised by the defendant. The requirements to be
established for the attack and for the defence when seeking to prove
self-defence are listed separately.
[2]
One element of the attack is that it must already have commenced or
be imminently threatening but must not yet have ceased. The
act/s
committed in self-defence must be directed against the aggressor,
must be to protect the threatened right and, crucially,
the act of
defence must not be more harmful than is necessary to ward off the
attack.
[48]
I
am mindful that in determining the reasonableness of Mantashe’s
actions the court must, in the words of Van Winsen J in
Ntanjana’s
case
[3]
, avoid the role of an
‘
armchair
critic wise after the event’
.
In doing so I am prepared to assume that, at the least, during the
prolonged struggle between Mantashe and the deceased and during
which
he was held from behind, Mantashe believed that he was being
subjected to a wrongful attack which threatened his life. I
am
further prepared to assume that all of the shots fired, save for the
final shot, were justified and met the requirements for
self-defence.
[49]
However,
accepting as I have Daba’s evidence relating to the final
seconds of the struggle, the entire scenario changed shortly
prior to
the final shot when the deceased released Mantashe from his grip and
raised his arms in surrender whilst simultaneously
apologising to
him. By this point the deceased had already suffered three gunshot
wounds and, having surrendered, no longer posed
a threat, let alone
an imminent threat, to Mantashe. The final shot subsequently fired by
Mantashe, aimed as it must have been
at the deceased’s chest,
was not necessary to protect Mantashe’s physical integrity
since there was no longer any attack
which Mantashe needed to ward
off. His act of firing the final shot was grossly disproportionate in
the circumstances in which
he found himself. The factors which I have
listed as explaining why I consider that Daba’s account of the
final seconds of
the struggle are not improbable, viz the previous
life and death struggle, Mantashe’s exhaustion and his
inexperience and
personality, in no way serve, either singly or
cumulatively, as lawful justification for his conduct in shooting at
point blank
range a defenceless man who was no longer a threat to
him.
[50]
In
the result I find that the defendant has failed to discharge the onus
he bore to prove that his employee killed the deceased
in
self-defence.
Costs
[51]
This
matter was set down for hearing on 19 April 2016 but did not proceed
on that day inter alia because the defendant’s counsel
was not
available. The parties agreed beforehand that the matter would be
postponed with the defendant to pay the plaintiff’s
wasted
costs occasioned by the postponement. An order to this effect was
made on 20 April 2016. It later transpired, however, that
the matter
was not allocated to a judge and could, in any event, not have
proceeded on the trial day. Principally on this latter
basis the
defendant later applied to rescind that part of the order saddling
him with the plaintiff’s wasted costs. I regard
the rescission
as ill-founded and opportunistic. Since the defendant’s counsel
was not available it had no choice but to
seek a postponement and
tender wasted costs. Having reached an agreement along these
lines it does not behove the defendant
to seek to resile therefrom
because it later appeared that for another reason, not relating to
plaintiff, the trial could not proceed
on the day. In the result the
application for rescission of the order is dismissed with costs.
Order
[52]
For
these reasons it is declared that the defendant is liable to the
plaintiff for such damages as she is able to prove arising
out of the
unlawful killing of her husband, the late Mr Lunga Mdiko, on 31 May
2008. In addition the defendant is ordered to pay
the plaintiff’s
costs in the trial action to date on the party and party scale.
____________________
BOZALEK
J
For
the Plaintiff
: Mr L
Godla
As
Instructed by
: Godla &
Partners
Ref:
GW Mbiza
For
the Defendant
: Adv E
Erasmus
As
Instructed by
: State
Attorneys
Ref:
Mr Ngwenya
[1]
Mabaso v Felix
1981 (3) SA 865 (A).
[2]
See Neethling, Potgieter v
Visser, Law of Delict (7 ed) pages 88 – 97.
[3]
Ntanjana v Vorster and
Minister of Justice
1950
(4) SA 398
(C).