About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 101
|
|
Ndima v Minister of Police (16852/2013) [2015] ZAGPJHC 101 (5 June 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 16852/2013
DATE: 05 JUNE 2015
In the matter between:
NDIMA GIFT
THEMBA
.............................................................................................................
Plaintiff
And
MINISTER OF
POLICE
.........................................................................................................
Defendant
J U D G M E N T
MAKUME, J:
[1] The Plaintiff issued summons
against the Defendant claiming damages under various heads.
[2] It is common cause that on or about
the 10th day of June 2011 and at or near Bez Valley in Johannesburg
the Plaintiff sustained
injuries on his right leg when he was shot
with a firearm by a member of the South African Police Services who
was acting within
the course and scope of his employment with the
Defendant.
[3] On his discharge from hospital
after 30 days the Plaintiff who was under arrest was detained at
Johannesburg Prison until released
on bail. On the 29th February
2013 he was acquitted in the Magistrate’s Court of all charges
preferred against him.
[4] The Plaintiff alleges that the
shooting, arrest and subsequent detention were wrongful and unlawful.
[5] The Defendant’s plea dated
the 16th April 2014 is a bare denial. However, at the commencement
of the trial on the 20th
February 2015 counsel for the Defendant in
his opening address moved an oral amendment to the plea and informed
the court that
the Defendant admits that the Plaintiff was shot and
injured by a member of the South African Police Force. He told the
court
that the police witnesses will testify that they shot at the
Plaintiff to prevent the commission of a crime. He told the court
further that the shooting as well as the subsequent arrest and
detention were lawful.
[6] Counsel informed the court further
that the reason why these admissions were not brought earlier than
today is because the
policemen who were involved in the shooting as
well as the arrest of the Plaintiff could not be traced until fairly
recent.
[7] I granted the application amending
the plea which is in keeping with that appears on paragraph 1.3 of
the Common Cause Facts
document dated the 20th February 2015 which
was signed by both parties and handed up to court.
[8] Paragraph 1.3 of that document
reads as follows:
“The incident that gave rise to
the action and/or claim took place on June 10, 2011. The incident
entailed the shooting of
the person of the Plaintiff by a Police
Officer and the Plaintiff’s subsequent arrest and detention:
first at Charlotte
Maxeke Hospital under Police Guard. Thereafter the
Plaintiff was detained at Sun City Prison.”
[9] The parties agreed on separation of
merits and quantum. This judgment relates only to the liability of
the Minister of Police.
I accordingly made an order in terms of Rule
33(4) separating merits and quantum.
EVIDENCE
[10] The Plaintiff Mr Themba Gift Ndima
testified that he is 44 years old and was 41 years old when the
shooting incident happened
on the 10th June 2011. He is a married
man and is the father of three children.
[11] At the time of the incident he was
employed at a Construction Company as a site foreman. Since the
shooting incident he is
now unemployed. He lives at Number 22 Corner
1st Street and 7th Avenue in Bez Valley, Johannesburg.
[12] On the morning of the 10th June
2011 he did not go to work as he was not feeling well. He went to
consult a doctor at a Clinic
in Esselen Street, Hillbrow near the new
General Hospital. The doctor gave him tablets and at 10h00 he
boarded a meter taxi along
Pretoria Street heading back home. He was
feeling dizzy.
[13] The taxi that he boarded was a
Toyota Cressida dark grey in colour. He was the only passenger in
the taxi and sat in the front
passenger seat. He was seeing the
driver of the taxi for the first time on that day.
[14] It was a cold cloudy day and
drizzling as a result visibility was limited through the windows
because of the mist inside the
taxi. He estimated that any person
standing 3 meters outside the taxi could not see inside the taxi. He
even asked the taxi driver
to put on the air-conditioner so that the
mist on the window should be cleared. The windows were also tinted.
[15] When the taxi reached 1st Street
he alighted and crossed the street in order to get to his home. He
alighted from the taxi
at the corner of 1st Street and 7th Avenue in
Bez Valley. The taxi stopped along 1st Street facing South in the
direction of Yeoville.
[16] A document marked Exhibit “A2”
was handed up in court which is a sketch plan showing the area around
where the
taxi stopped. The Plaintiff indicated that his home is
along 7th Avenue. When he alighted from the taxi he had to cross
over
1st Street in order to get to his home.
[17] He testified that the taxi turned
into 1st Street from 8th Avenue. Point “O” on the sketch
plan is where the taxi
stopped. He told the court that he could not
direct the taxi to drive into 7th Avenue as it is a one way street
and from where
they came they were going to drive in the face of
oncoming traffic had they turned right into 7th Avenue. He testified
further
that as he was walking facing the direction of his home he
heard a gun shot he was hit and he fell on the ground. He was walking
when he was shot. The bullet had struck him on his right leg from
behind. He did not see who shot at him and where that person
who shot
him was at that time. His leg was broken. The bullet entered at the
back and exited on the knee.
[18] Whilst he was lying on the ground
a policeman who was carrying a firearm approached him. He asked him
why he shot at him and
received no answer. A second police officer
came and that one searched him and took his two cellphones as well as
a small bag that
he had fastened to his waist in which were his
tablets and medicine. Later on other police officials arrived and an
ambulance
came that took him to hospital.
[19] He was under police guard at the
hospital for 1 month and 3 weeks and on his discharge from hospital
he was taken to Jeppe
Police Station and locked up in the cells for 1
week. No one told him why he was being locked up. After 7 days he
was taken to
court but remained in the cells as he could not walk. He
was on a wheelchair. He remained in custody and only after 3 months
he was released on bail.
[20] After six days in hospital the
police did tell him that he was to be charged with the offence of
possession of a firearm without
a licence. His trial commenced. He
pleaded not guilty and was discharged at the close of the state case
in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
.
[21] He testified that on the 10th June
2011 he did nothing wrong that could justify the police officer
shooting him and then placing
him under arrest. He denies that he
was in possession of a firearm.
[22] Cross-examination of the Plaintiff
was lengthy lasting over 2 days, during which cross-examining the
version of the police
officer who shot him was put to him. That
version is that the police stopped the taxi by putting on the siren
and the blue light
and when the taxi stopped that he the Plaintiff
jumped out of the front seat, ran across the street and when the
police fired a
warning shot asking him to stop he turned and pointed
a gun at the police. At that time Constable Mathekga shot him. The
Plaintiff
denied this and stuck to his version as in the
evidence-in-chief.
[23] It was further put to him that
Constable Mathekga shot him “in order to stop you from
threatening his life and that of
his colleague”. The Plaintiff
denied this. The Plaintiff admitted that the police did search him
after he fell but denies
that they found any firearm in his person.
[24] The rest of the cross-examination
dealt with the time when Plaintiff said he left home and arrived at
the doctor and further
about the condition in the taxi in respect of
visibility. At some point the witness was challenged to say if he
knows that to drive
a motor vehicle with tinted windows was illegal.
Whilst I could not follow the relevancy of that questioning I let it
pass even
though I hold the view that it was irrelevant and did not
deal with the real issue before me.
[25] All in all the cross-examination
did not damage the Plaintiff’s credibility nor did it raise any
serious concerns about
the reliability of his evidence. He reiterated
his version of the events of that day. The Plaintiff closed his case
thereafter.
The Defendant opened his case and called Mr Kossam
Mathuthu. I need to mention also that Mr Mathuthu’s statement
to the
police had been handed in as Exhibit “A3” during
the cross-examination of the Plaintiff without any reference being
made to it during such cross-examination.
[26] Mr Mathuthu’s evidence in
court was in many crucial respects in conflict with what appears in
his statements to the police.
He admitted his signature on Exhibit
“A3” and proceeded to tell the court that the statement
was never read to him
by the police officer before he signed it.
[27] His evidence in court was that
after the Plaintiff had shown him where to stop in order to allow him
to get off he then saw
the police vehicle stop behind him. The
Plaintiff got off and walked across the road. He saw the one police
officer following the
Plaintiff but did not know why. At first he
told the court that the Plaintiff was running across the street.
Later he changed and
denied that Plaintiff was running. He said
Plaintiff was walking normally.
[28] He says he followed the police to
see why they were going after the Plaintiff but turned back to drive
further on when he was
stopped by the police and he himself was
arrested, handcuffed and taken to a place where he saw the Plaintiff
lying down injured.
The police accused him or told him that he knew
the Plaintiff. He was later called to court to testify in the case
against the
Plaintiff and does not know what eventually happened.
[29] There is nowhere in his statement
to the police nor in his evidence in court where he says that he saw
the Plaintiff point
the police with a firearm nor does he say that
after he was handcuffed and taken to where the Plaintiff was that he
saw a firearm.
The witness denied that the Plaintiff was running when
he got off the taxi.
[30] He told the court further that
when he arrived at the police station they asked him where does he
stay and where he comes from
and if he knew the Plaintiff. He gave
the police his personal particulars and told them that he does not
know the Plaintiff and
that he was seeing him for the first time on
that day.
[31] Having been arrested, handcuffed
and then put inside the police van when he arrived at the police
station he was given a document
to sign which had already been
written. The statement was never read to him. On a crucial aspect of
the case the witness Mr Mathuthu
did not corroborate the version of
the Defendant. Instead his evidence is more in line with what the
Plaintiff testified about.
[32] Constable Mmereki Welcome Mathekga
testified that he joined the South African Police Services in 2009
after he had received
basic training. He is presently based at Jeppe
Police Station. This was the position at the date of the incident.
[33] He testified that on the 10th June
2011 at about 10h00 he and a colleague Ludwick Matodzi Thovakale were
on patrol duty in
Bez Valley, Johannesburg. They were in a marked
police vehicle and both of them wore the official Police Force
Uniform.
[34] As regards the weather condition
he said it was cloudy and cold but was not raining. They noticed a
silver grey Cressida motor
vehicle driving ahead of them. There were
two persons in it being the driver and a passenger. He could see
clearly through the
back window. He noticed that the passenger in
the Cressida was not at ease as he kept on looking behind.
[35] He told the court that because of
the suspicious behaviour of the passenger they decided to stop the
Cressida he then put
on the siren and blue light indicating that the
Cressida should stop. Before the Cressida could stop he noticed the
left front
passenger door of the Cressida opening slightly and when
the Cressida came to a stop the passenger got out of the Cressida and
started to run in the direction of 1st Street. When they stopped the
Cressida it was driving in 8th Street.
[36] The witness testified that he also
got off the police vehicle and chased after the passenger
(Plaintiff). As the Plaintiff
was running he kept on tucking
something on his belt as if to prevent something from falling off. He
says he thought that may be
the Plaintiff had a firearm. He then
shouted at him to throw it away. The Plaintiff did not and kept on
running. He then fired
a warning shot. Despite this the Plaintiff
kept on running and turned right into 1st Street. He followed him and
when he the witness
turned into 1st Street he found the Plaintiff
waiting for him around the high wall at the corner of 8th Avenue and
1st Street.
The Plaintiff pointed him with a firearm.
[37] When he noticed that the Plaintiff
was pointing him with a firearm he hid himself behind a tree. The
Plaintiff turned around
and continued to run away. He followed him
when he turned right again into 7th Avenue and as he was running away
he noticed Plaintiff
put away the firearm under his belt. The driver
of the police van Ludwick Thovakale was at that time following in the
car also
chasing after the Plaintiff and when he turned into 7th
Avenue he noticed that Thovokale who was already out of the police
van
was having his back to the Plaintiff.
[38] The Plaintiff was at that stage
between him Mathekga and Thovokale who had his back to the Plaintiff
as he was trying to stop
his vehicle which had started rolling
forward on its own. He testified further that the Plaintiff took out
his firearm again.
He then decided to shoot the Plaintiff on his
right leg.
[39] When he shot the Plaintiff the
Plaintiff was running eastward towards his colleague Thovokale. After
he shot him the Plaintiff
fell into a yard. He ran to him and told
him not to do anything funny. After he shot him the Plaintiff again
put his firearm away
in his waistline. After the Plaintiff fell the
witness took the firearm from the person of the Plaintiff and put it
on the ground
next to where the Plaintiff was lying.
CROSS-EXAMINATION
[40] From the start of the
cross-examination of this witness it became very clear that his
evidence and that of the first defence
witness Mr Mathuthu were in
conflict. Constable Mathekga indicated that when he and his
colleague stopped the Cressida it was
in 8th Avenue when in fact
Mathuthu and the Plaintiff had testified that the Cressida taxi
stopped in 1st Street after turning
in from 8th Avenue. What is
surprising is that this aspect was never placed in dispute by
Defendant’s Counsel when cross-examining
the Plaintiff.
[41] He testified that he fired two
shots but cannot say how many or if any cartridges were found. He
says he left everything to
the people who did the investigation. The
first shot was a warning shot which he fired at the time that the
Plaintiff was still
running in 8th Avenue in the direction of 1st
Street and the second shot he aimed at the Plaintiff when Plaintiff
had already turned
into 7th Avenue. This evidence conflicts with that
of the Plaintiff and Mr Kossam Mathuthu who testified that when the
shot was
fired Plaintiff was already in 7th Avenue. This was never
placed in dispute by the Defendant under cross-examination.
[42] The witness Mathekga could not
explain why is it that only one cartridge was found on the scene and
taken for analysis. It
was put to Mathekga that the only reason why
the second cartridge was not found is because no shot was fired by
him in 8th Avenue.
He insisted that he did fire the warning shot in
8th Avenue. He further gave an explanation that the reason why the
cartridge
was not found is because when you fire a bullet using a R5
gun the cartridge is thrown or falls far from the scene or area where
it was shot. This explanation was not only nonsensical but was
clearly unsubstantiated. There was no evidence that Mathekga is
an
expert in that field and to make matters worse he could not say if
his theory is correct. Why is it that the second cartridge
was found
on the scene? I hasten to say that Constable Mathekga was
disingenuous. He was clearly hiding something and that is
that no
warning shot was ever fired.
[43] Constable Mathekga says after he
shot at the Plaintiff had put back his firearm back under his belt
and the reason he did this
was because he wanted to protect his
colleague who as he says was not aware that Plaintiff was carrying a
firearm. He says because
he was running he the Plaintiff did not
have his firearm in his hand thus it was not visible.
[44] The more the cross-examination
continued the more Constable Mathekga repeated that the reason he
shot at the Plaintiff was
to protect the life of his colleague who
had his back to the gunman.
[45] When he was asked if he did tell
his colleague why he shot at the Plaintiff he says yes he did and his
colleague became scared
and worried.
[46] The witness Constable Mathekga was
referred to his statement made on the 10th June 2011 at the police
station. At paragraph
7 of that statement the witness says the
following:
“When I turned into 7th Avenue,
Bez-Valley he withdrew the gun again and warned to stop again, he
ignored my instructions.
I shot one again aiming for his legs, then
took the firearm and put it into his pants (abdomen) and fell on the
ground in front
of house no: 6 at 7th Avenue Bez-Valley. I went
closer to him and further told him not to make any funny movement and
I went straight
to where I saw him place a firearm (under the clothes
and the abdomen).”
[47] This statement is in direct
contradiction with what Mathekga had testified earlier on that is
that at the time when he shot
the Plaintiff his firearm was already
hidden in his clothes and the abdomen. In this statement he says that
the Plaintiff only
put away the firearm after he had been shot.
[48] When he was asked to explain why
in his statement he never mention that he shot at the Plaintiff
because he feared for the
safety of his colleague the witness became
shifty and conceded that he did not mention it and admits that it
was important to
have mentioned it in his statement. Later on he said
that he saw the Plaintiff pointing a firearm at him but did not see
where
the firearm came from or where he took it out from.
[49] In an attempt to cover up his
earlier glaring contradictions the witness said that the plaintiff
took back the firearm into
his clothes or abdomen when he was “in
the process of falling”. Further on this aspect he gave a
third version which
is that the Plaintiff still had the firearm in
his hand at the time when he shot him.
[50] He continued and testified that
after the Plaintiff had fallen he removed the firearm from him and
put it on the ground next
to the Plaintiff about 2 meters from where
Plaintiff was lying. He indicated that the Plaintiff fell inside the
yard at home number
6.
[51] It seems strange that the witness
having explained how he feared for the life of his colleague he still
put the firearm within
reach of the Plaintiff. It must be remembered
that the Plaintiff was still awake and alive he could easily have
grabbed the firearm
and shot at the two policemen. The witness
Mathekga could not give the court any reasonable explanation for that
episode. The
only reasonable inference to be drawn is that there was
no such firearm. I say so because in further cross-examination
Mathekga
says that after he removed the firearm from the Plaintiff he
did not even check it to see if there were bullets in it or not.
[52] He agreed further that no
fingerprints were taken on the firearm to connect it with it having
been possessed by the Plaintiff.
[53] In another strange twist of the
witnesses ridiculous explanation of the shooting incident Mathekga
told the court that when
he shot the Plaintiff, the Plaintiff was
heading towards the gate of house number 6 clearly not facing his
colleague who at that
time according to him was coming back from his
vehicle. When confronted with the question that this therefore means
that his colleague
was nowhere in danger he answered that he does not
understand the question and said they were all in 7th Avenue and said
that he
cannot remember where the police vehicle was but it was not
far from the gate of house number 6.
[54] He further testified that he and
his colleague decided to stop the Cressida because the passenger
inside who happened to be
the Plaintiff behaved suspiciously by
looking backwards. There was nothing wrong with the taxi itself.
When it was put to him
that the evidence of the Plaintiff was
corroborated in all respect by the evidence of the defence witness
namely the taxi driver
he kept on saying that he does not know that
and insisted that the taxi Cressida was stopped along 8th Avenue and
not in 1st Street.
[55] Constable Mathekga could also not
explain why the taxi driver was arrested and handcuffed. His answer
was that he did not arrest
him and he does not know fully well what
happened except to say that the taxi driver was an important witness
to give them information.
The taxi driver was a potential witness
for the State.
[56] Constable Mathekga is once more
being disingenuous because the arrest of the taxi driver could only
have been at his or his
colleague’s instance. He now belatedly
distances himself from unlawful arrest of the taxi driver after
conceding that there
was nothing wrong with the Cressida it was only
the passenger who they were after.
[57] The Plaintiff as well as the
Defendant’s witness namely the taxi driver had testified that
it was drizzling when Mathekga
is asked to confirm that indeed that
on the weather condition and further that as a result of the weather
the inside of the taxi
was misty he firstly denied that it was
drizzling he in fact said there was no rain and secondly he said that
he could see clearly
inside the Cressida.
[58] The witness confirms that after he
had shot the Plaintiff he placed him under arrest. He was asked to
explain on which legal
ground or basis did he place the Plaintiff
under arrest? He replied that it was for pointing a firearm; and
possession of a firearm
without a licence.
[59] The Plaintiff stood trial in the
Regional Court Johannesburg and was acquitted in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
.
[60] In answering questions by the
court he conceded that he does not know why the Plaintiff kept on
looking behind and when the
Plaintiff was running away he kept on
looking behind him. He as a result of that also became suspicious.
He conceded that when
he shot at the Plaintiff the Plaintiff had his
back to him and was not pointing his firearm at anybody.
[61] The next witness was Constable
Matodzi Ludwick Thovokale who testified that on the 10th June 2011 at
about 10h30 he was the
driver of the police vehicle along 8th Avenue
in Bez Valley. In his company was Constable Mmereki Makhekga. They
were doing patrol
duty when he noticed a blue Toyota Cressida motor
vehicle ahead of him. He noticed that the passenger in the Cressida
kept on
looking backward and he did that two or three times. He says
that as policemen this looks suspicious and he decided to blow the
siren and put on the blue light to indicate to the driver to stop.
[62] His further evidence is that as
soon as the Cressida came to a stop along 8th Avenue Plaintiff jumped
out and started running
along 8th Avenue into the direction of 1st
Street. Constable Mathekga also jumped out of the police vehicle and
chased after the
Plaintiff. He drove the police vehicle with the
intention to block the Plaintiff in front.
[63] When he turned into 7th Avenue the
Plaintiff and Constable Mathekga were already running in 7th Avenue.
He drove past them
and stopped the police vehicle ahead of them and
as he was heading towards them he heard a gun shot and he saw the
Plaintiff fall
next to the gate of house number 6.
[64] He testified that he only heard
one shot being fired and never saw the Plaintiff point a firearm at
his colleague. When he
arrived at the place where the Plaintiff had
been he saw a firearm next to his feet. He then kicked it away and
searched the Plaintiff.
[65] There are serious and material
contradictions not only between the evidence of Makhekga and
Thovokale but also between the
evidence of both constables and that
of their witness the driver of the Cressida.
[66] In the first place Thovokale only
heard one gun shot when in fact Mathekga says he shot twice. The
fact that Thovokale was
driving cannot be used as an excuse that it
is possible he did not hear the gun shot.
[67] Perhaps the most glaring
contradiction is when Thovokale says that when he heard the only gun
shot he was already making his
way to meet the Plaintiff who was
being chased by Mathekga. It is not that when the shot that hit the
Plaintiff was fired Thovokale
had his back to the Plaintiff.
[68] Mathekga said he searched the
Plaintiff, removed the firearm from him and put it next to him closer
to his head and yet Thovokale
says the firearm was between the
Plaintiff’s legs and he kicked it away. That was not the
evidence of Mathekga.
[69] Despite the fact that the witness
Thovokale was at some stage driving behind the Plaintiff and Mathekga
at no stage does he
say that he saw the Plaintiff pull a firearm and
point it at his colleague Mathekga. Under cross-examination he
reiterated that
he never in his statement said that he saw the
Plaintiff in possession of a firearm. He reiterated several times
that he was not
in any danger because he never saw the Plaintiff pull
out a firearm.
[70] In answering questions by the
court he said that when he arrived at the place where the Plaintiff
was lying injured he asked
him where he got the firearm from and the
Plaintiff did not answer him.
[71] The Defendant’s last witness
was a Mr Andries Ntjane a Prosecutor in the employment of the
National Prosecuting Authority.
He testified that he holds a B.Proc
degree which he acquired during the year 1995.
[72] Mr Ntjane was the Prosecutor in
the criminal case involving the Plaintiff. His evidence dealt with
the conduct and outcome
of the criminal trial and did not in any
manner assist the court in determining the issue before me which is
whether the Police
had any justifiable reason to shoot and later
arrest and detain the Plaintiff.
EVALUATION OF THE EIVDENCE
[73] The Plaintiff was not only an
honest witness. His evidence is also reliable and was corroborated
by Mr Mathuthu a defence
witness.
[74] The same cannot be said about the
Defendant’s witnesses. The two police officers contradicted
each other on very crucial
aspects of the facts in this matter. I
have no hesitation to find that the version advanced by the two
police officers is improbable
at its central pillar and lacks
credibility at every turn. In my view they both contrived a version
where none exists. I do not
believe them and I reject their evidence
as false beyond any doubt.
[75] In the matter of Circle
Construction (Pty) Ltd v Smithfield Construction
1982 (4) SA 726
the
following was said:
“A defence must be pleaded as
well as proved for the Court sits to try issues raised by the
pleadings. A defendant who misses
his true defence or who has learned
of it only from facts which appeared during the trial must therefore
raise the defence formally
and have it placed on roll.”
[76] In this matter up until the 17th
February 2015 which is three days before the trial commenced the
Defendant’s plea was
a bare denial. It was only at the
pre-trial conference held on the said date that for the first time
the Defendant conceded the
following issues:
76.1 That the Plaintiff sustained
injuries on the 10th June 2011 due to a shooting incident by the
Police.
76.2 That the Plaintiff was arrested
and remained in hospital for a month under police guard.
76.3 That on his discharge from
hospital the Plaintiff was detained at Johannesburg Prison for two
months.
76.4 That in the ensuing criminal
charges against the Plaintiff on the basis of the statements of the
two police officers he was
acquitted and found not guilty in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
.
[77] At the commencement of the trial
the Defendant’s counsel handed up to court by agreement a
document titled “Common
Cause Facts” which document
reiterated the admission and concessions made by the Defendant at the
pre-trial conference. In
the document it was further added that:
“1.6 The bullet fired by the
Police towards the Plaintiff struck and injured the right lower limb
of the Plaintiff. The exact
nature and extend of the injury [or
injuries] and the sequelae thereof will be dealt with when the
quantum part of the claim is
dealt with [should that stage be
reached]. The shooting of the Plaintiff was intentional.
1.7 The Plaintiff alleges that the
shooting of and the infliction of the injury on the Plaintiff, his
arrest and his subsequent
detention it/was wrongful and or unlawful.
The Defendant denies this.”
[78] Counsel for the Defendant in his
opening address and in a veiled a though to plead material facts
justifying the shooting and
the arrest said that the shooting of the
Plaintiff by the police officer was necessary and inevitable to
prevent a crime. No details
were provided as to what crime or crimes
the Plaintiff was committing which justifies that he be shot and
arrested.
[79] When cross-examination of the
Plaintiff got under way what was put to the Plaintiff is not what was
pleaded. It was firstly
put to him that he the Plaintiff had pointed
a firearm at the police officer. Secondly, that the life of the
second police officer
was in danger. From these two statements the
following becomes obvious that is that the Plaintiff was not shot
because he had pointed
a firearm at Constable Mathekga. He was shot
at because the life of the second police officer namely Matodzi
Ludwick Thovokale
was in danger. The evidence of Mathekga is that the
Plaintiff has put the firearm under his clothes. It is not that he
was pointing
a firearm at Thovokale. The question then remain how
could it be argued that Plaintiff was threatening to commit a crime
namely
shoot and injure Thovokale when in fact the firearm was hidden
under his clothes.
[80] It is therefore my conclusion that
what was pleaded by the Defendant was not supported by the evidence
before this Court. I
pause here to note that the manner in which the
Defendant’s version was pleaded demonstrates the difficulty
that is placed
before a court where a crucial element or submission
in relation to the defence is canvassed for the first time during the
trial.
[81] The argument that the witnesses
for the Defendant could not be found until fairly recently hence the
late amendment to the
bare denial is in my view a flimsy excuse. The
statements of the two police officers were in the docket and a plea
could have
thus been drawn based on their statements made under oath
when they arrested the Plaintiff. As I see it the evidence of the two
police officers did not answer the central case made against the
Defendant. Their version distorted the reality of events.
THE CLAIM FOR PAIN AND SUFFERING
[82] In his particulars of claim the
Plaintiff says that he was shot several times on his right leg by the
police officer without
any provocation as a result he suffered pain
and was hospitalised at Charlotte Maxeke Hospital for approximately
30 days. The Defendant
does not dispute the shooting. I need however
to state that it is not correct as the Plaintiff alleges that he was
shot several
times evidence is that he was shot once on his lower
limb.
[83] It is trite law that every
infringement of the bodily integrity of another is prima facie
unlawful. Once an infringement is
proved the onus rests on the
wrongdoer to prove some ground of justification. The state is liable
for the acts of a policeman who
assaults any person during an arrest
performed by the police officer pursuant to the exercise of a
discretion to arrest. See Minister
van Polisie v Gamble
1979 (4) SA
759
(A).
[84] In the present matter the police
officers on their own version chased the Plaintiff simply because he
behaved suspiciously.
They do not in their evidence say that they
wanted to arrest him because he had committed a crime in their
presence. The evidence
of Mathekga is that he shot him because if he
had not done so the Plaintiff would have or might have shot at his
colleague. This
is mere speculation.
[85] There are conflicting versions by
the Defendant’s witnesses about the presence of the firearm.
It is therefore not surprising
that in the subsequent criminal case
the Plaintiff was acquitted and found not guilty of having been in
possession of a firearm.
[86] In my view the Defendant failed to
justify the shooting and injury of the Plaintiff or that it was
necessary to effect the
arrest. In the matter of Mabaso v Felix
1981
(3) SA 86
(A) at page 874B-C the court held as follows:
“We also think that if the excuse
or justification pleaded is self-defence, the onus is generally on
the defendant too to
plead and prove that the force used by him in
defending himself was in the circumstances reasonable and
commensurate with the Plaintiff’s
alleged aggression.”
THE ACTION FOR UNLAWFUL ARREST AND
DETENTION
[87] An arrest and detention is prima
facie unlawful and once such arrest and detention is admitted the
onus of proving lawfulness
rests on the Defendant. See Mhayat v
Minister of Safety and Security
2001 (2) All SA 534
Tk.
[88] When the two police officers
chased after the Plaintiff who says he was walking and not running he
had not committed any offence.
They accordingly had no basis or
justification to attempt to stop him. The Police witness’s
version that the Plaintiff was
in possession of a firearm was a
fabrication by the two police officers hence their versions
contradict in that regard.
[89] In the matter of April v Minister
of Safety and Security
2009 (2) SACR 1
the Honourable Innes J dealt
with the requirements of
section 49(2)
of Act 51 of 1977. This is
the section that empowers police officers to use force in effecting
an arrest. In that matter the
Police had shot at and arrested a
person who was fleeing from the scene of a robbery. At page 7
paragraph [5] the court said the
following:
“In order to discharge the onus
resting upon him, the defendant must not only prove that the Police
suspected on reasonable
grounds that the plaintiff was part of a
conspiracy to rob the cash-in-transit vehicle. This will justify the
arrest. He must
also satisfy the requirements laid down in s 49(2).
In terms of that section the use of deadly force likely to cause
either the
suspect’s death or grievous bodily harm to him is
justified only in limited circumstances. There must be acceptable
evidence
that the Police believed on reasonable grounds that the use
of the R5 rifle and the 9 mm pistol to prevent the plaintiff from
fleeing
or resisting – the only justification raised in the
plea – was immediately necessary for their protection or the
protection
of any other persons; that there was a substantial risk
that the plaintiff would cause imminent or future death or grievous
bodily
harm if the arrest was delayed; or that the offence in
question was in progress and was of a forcible nature involving the
use
of life-threatening violence or a strong likelihood that it would
cause grievous bodily harm (Govender v Minister of Safety and
Security
2001 (2) SACR 197
(SCA). My view is that even an acceptance
of the police version of the facts the evidence falls short of
meeting the requirements
for the use of deadly force.”
[90] The version of the police officer
is that the Plaintiff was about to enter the premises of house number
6 when he was shot
and fell. The other police officer did not see any
firearm in the possession of the Plaintiff in any event the Plaintiff
was not
running to him. The Plaintiff posed no danger to anyone and
it was unnecessary for the police to shoot him in order to effect an
arrest. If they had any reasonable suspicion that the Plaintiff had
committed an offence they could have still pursued him into
the
premises where he lived and then effect an arrest of justified.
[91] I remain unpersuaded that the
arrest and detention was lawful. The Defendant has failed to justify
the arrest and subsequent
detention.
THE CLAIM FOR MALICIOUS PROSECUTION
[92] In my view no evidence was led to
prove a claim under this heading and I say no more on that.
ORDER
[93] For the reasons set out above it
is ordered as follow:
93.1 It is declared that the Defendant
is liable to the Plaintiff for such damages as the Plaintiff may
prove he has suffered as
a result of the shooting incident by a
member of the South African Police including the unlawful arrest and
detention.
93.2 The Defendant is ordered to pay
the Plaintiff’s costs of suit in relation to the merits of the
trial.
DATED at JOHANNESBURG this 05th day
of JUNE 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING 20TH FEBRUARY 2015
DATE OF JUDGMENT 5TH JUNE 2015
FOR THE PLAINTIFF ADV L P MKHIZE
INSTRUCTED BY DITHEKO LEBETHE
ATTORNEYS
83 Market Street
Suite 409
Tel: (011) 333-7537
Fax: (011) 333-7547
FOR THE DEFENDANT ADV R S MOTHIBE
INSTRUCTED BY THE STATE ATTORNEY
10th Floor, North State Building
Tel: (011) 330-7685
Ref: 2746/13/P11/FM S. Makenna