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[2016] ZAGPJHC 42
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Tshabalala v Minister of Police and Another (13/45391) [2016] ZAGPJHC 42 (18 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 13/45391
HEARD:
29 FEBRUARY to 4 MARCH 2016
DELIVERED:
18 MARCH 2016
In
the matter between:-
SIBUSISO
VINCENT
TSHABALALA
.....................................................................................
Plaintiff
And
MINISTER
OF
POLICE
...................................................................................................
1st
Defendant
ZAKHELE
KUBHEKA
...................................................................................................
2nd
Defendant
JUDGMENT
HERTENBERGER,
AJ
[1]
This is an action instituted against both the First and Second
Defendants in which the Plaintiff claims only general damages
in the
amount of R600 000.00 (an amendment to the quantum was requested
prior to hearing argument, the initial claim had comprised
of general
damages of R350 000.00 and special damages of R275 000.00, which
special damages were abandoned by the Plaintiff) suffered
as a result
of a gunshot injury, suffered by the Plaintiff personally, which it
is common cause, was inflicted by the Second Defendant
using his
service pistol.
[2]
The common cause facts, which also comprise the backdrop to this
matter, are briefly the following: That the Second Defendant
had
arrested the Plaintiff some years prior, which arrest led to the
acquittal of the Plaintiff only after he had employed legal
representation at his own cost. The shooting occurred on 9
September 2012 at approximately 17:00 at Senaone. Prior
to the
shooting, the Plaintiff and Second Defendant had an altercation on
Mpofu Street (also at Senaone), where-after the Plaintiff,
smaller in
size and build than the Second Defendant, had utilized a public
telephone to call his friends to assist him, who came
to the scene
and then left in the company of the Plaintiff. The Second
Defendant was prior to the first altercation washing
his marked Audi
A3 police service vehicle. The shooting occurred in Inewempisi
Street, Senoane near the Second Defendant’s
motor vehicle.
One shot was fired, which struck the Plaintiff in the left thigh and
femur. He was taken to hospital by ambulance.
[3]
I am tasked with determining whether the Second Defendant had acted
in private defense, or not. Counsel for the First and Second
Defendant conceded that the Second Defendant was in fact acting in
the course and scope of his employment at the time that the
shooting
took place and that the issue of vicarious liability on the part of
the First Defendant was not disputed. The fact
that the Second
Defendant fired the shot from his service pistol, was on stand-by
duty and was driving a marked police vehicle
in any event leaves
little doubt as to this fact. For the sake of completeness, this view
is supported by the Supreme Court of
Appeal in
The Minister of
Safety and Security v F
(592/09)
[2011] ZASCA 3.
[4]
The Plaintiff testified, as did his friend Sfiso Dlamini. The
Plaintiff’s testimony can be summarized as follows: He was
arrested by the Second Defendant some two years ago on a charge of
business robbery of which he was acquitted. He spent no
less
than R10 000.00 in attorney’s fees as a result. He knew
the Second Defendant. The Plaintiff was about to
visit his
girlfriend’s house in Mpofu Street when he came across the
Second Defendant where the latter was drinking alcohol,
whilst his
car was being washed. He greeted the Second Defendant’s
friend, whereupon the Second Defendant asked the
Plaintiff, why he
was looking at him in a bad manner. When the Plaintiff denied
having done so, the Second Defendant approached
him and slapped him
at least twice in the face. In response the Plaintiff hit
back. The two of them then ended up grabbing
each other.
Bystanders separated them and the Plaintiff went to a public phone
container nearby and called his friends, who
then came to the scene.
The intention was to slap the Second Defendant in further
retaliation. As the Second Defendant
had a firearm with him,
they decided not to continue as intended and walked away in the
direction of Mpofu street. Here the
Second Defendant arrived
driving in his vehicle, one hand on the steering wheel, the other
holding a firearm. He alighted
from the vehicle and shot the
Plaintiff,
without any provocation
. The distance between
them was estimated to be between 50 cm and 1 metre. Only one
shot was fired at close range and
on the Plaintiff’s version he
was unarmed and so were his friends. The pain was severe and
the ambulance arrived only
one hour later. As a result of
the gunshot wound the Plaintiff suffered a broken leg and had to have
the left testicle
removed, as a result of toxins in the bullet having
found it’s way into the testicle. He was held under
police guard,
as there had been a charge of pointing of a firearm
laid against him. After a three week stay in hospital, the
Plaintiff
was taken to the holdings cells at Moroka Police Station
where he was held for a weekend. The court granted him bail and
nothing further has come of the matter. Despite the loss of the
left testicle, the Plaintiff informed the court that he was
advised
by the doctor at the hospital that he would still be able to
impregnate a woman. There was no evidence led indicating
any
other lasting physical effects. Under cross examination the
Plaintiff conceded that he had been angry at the Second Defendant
since the arrest two years ago, but denied that he wished to harm him
as a result.
[5]
The Plaintiff’s witness Sifiso Dlamini confirms to a great
extent the version of the Plaintiff from the point where the
Plaintiff calls his friends to come and assist him in fighting the
Second Defendant. Dlamini arrives at the scene of the
first
altercation, but only after the phone call was made. He is not
a witness to the initial altercation, but arrives there
after being
called and confirms that the intention to retaliate was abandoned as
the Second Defendant had a firearm and the Plaintiff
and his friends
did not – they were thus not in a position to attack the armed
Second Defendant. He does however confirm
the events at the
scene of the shooting and testifies to the fact that some time lapsed
between the Mpofu street altercation and
the scene where the shooting
took place. This is of great significance in this matter.
The smaller inconsistencies
in the Plaintiff and Dlamini’s
testimony can in my view be justified by the fact that they viewed
the incident from different
perspectives, if anything, they add
credence to the reliability of their testimony.
[6]
At the beginning of the trial, the Defendants’ counsel
indicated that the Second Defendant and a witness would testify
in
support of the Defendants’ case. Regrettably, the second
witness failed to appear in court and as such the Second Defendant’s
version stands on its own and I must disregard those portions of his
evidence, which related to the absent witness, Nhlanlha Ngome
as they
remain uncorroborated. The Second Defendant testifies that he was
busy washing his service vehicle, when the Plaintiff
alighted from a
black vehicle. He confirms having previously arrested the
Plaintiff in respect of a business robbery. Whilst
washing the
vehicle, he heard someone say “Ja, it is you” and then
saw the Plaintiff. The Plaintiff was aggressive
and demanded
repayment of the money he had spent on legal fees. He told the
Plaintiff to leave him alone and carried on washing
the car, but was
then assaulted by the Plaintiff who slapped and kicked him on his
body. Despite wanting to avenge the assault,
he did not do so
as Ngome physically intervened and told him not to. At this
point the Plaintiff’s firearm is in its
holster clipped to his
belt and whilst angry at what happened he is in control of himself.
He describes that the Plaintiff
had been drinking from a Savannah
bottle and that he was in a fighting mood, also threatening that he
was “coming back in
a bad way”. Plaintiff
then leaves and the Second Defendant continues to wash the car.
Not long after the
Plaintiff returns in the company of two men, with
the intention of attacking the Second Defendant. At this point
the Second
Defendant is locked behind a gate at Ngome’s home by
his friends, as a means of protecting him from the attackers.
Whilst locked in the yard, the Plaintiff and his friends warn the
Second Defendant that they are leaving to get a gun to shoot him.
They leave and Ngome and Second Defendant drive to the latter’s
residence in the service vehicle, where the Second Defendant
changes
his clothes and then returns to Ngome who is waiting in the passenger
seat of the vehicle with the intention to drive to
the police station
to record the incident in the Occurrence Book. Shortly after
driving off, the Plaintiff and two of his
friends appear and block
the vehicles path with their bodies, forcing the Second Defendant to
stop. Plaintiff opens the driver
side door and tries to pull
the Second Defendant out of the vehicle. The service pistol is
located in the vehicles side pocket.
The Second Defendant reads
from the Plaintiff’s body language that he intends to grab the
pistol from the side pocket and
reaches for the firearm first.
In the same breath he sees two of the Plaintiff’s friends near,
one of whom wants to
hand the Plaintiff a firearm. The Second
Defendant intended to fire a warning shot, but strikes the Plaintiff
instead. He
denies ever intending to shoot the Plaintiff and that he
was
under threat by the Plaintiff who was about to receive a
firearm
. The Second Defendant under cross-examination concedes
that the firearm had not yet reached the hands of the Plaintiff, when
the
Second Defendant fired the shot that struck the Plaintiff.
Further evidence was led relating to the manner in which the Second
Defendant handled his firearm and where the parties were standing,
none of which evidence really takes the matter much further.
MERITS
[7]
The Defendants in this matter aver that the Second Defendant shot the
Plaintiff in private defense. The requirements for
this defence
are the following
[1]
:
(a)
The defence must be directed against the aggressor;
(b)
The defence must be necessary to protect the threatened right;
(c)
The act of defence must not be more harmful than is necessary to ward
off the attack.
[8]
When the facts of the matter are applied to the above requirements,
the Defendants find themselves in the precarious position
that there
is no conclusive and corroborated evidence led by them that there was
in fact a second firearm at the scene and if one
were to accept that
such a firearm was in fact at the scene at Mpofu street, it is
conceded by the Second Defendant that it was
not yet in the hands of
the Plaintiff and therefor I cannot find that the Second Defendant
was under sufficient threat by the Plaintiff
that he was left no
choice but to fire a shot. Taking into consideration the
conflicting versions of the witnesses for the
Plaintiff on the one
side and the Defendants’ single witness on the other, there is
simply not enough evidence of a threat
so imminent that the Second
Defendant could on any basis be justified in shooting the unarmed
Plaintiff, who is physically weaker
than the Second Defendant in an
act of private defence, particularly in the absence of a
corroborating witness who was sitting
in the Second Defendant’s
vehicle at the time of the shooting. It is in any event
unlikely that the Plaintiff would
both be reaching for the Second
Defendant’s service pistol at the same time as he was knowingly
waiting for his friend to
hand him a firearm.
[9]
It follows that in respect of the merits I must find in favour of the
Plaintiff, whose version of the events, as corroborated
by his
witness, is more probable. The single witness for the
Defendants became rather evasive and did not appear to be on
the face
of it a reliable witness. In light of relevant case law
and in light of the fact that it is conceded that
the First Defendant
is vicariously liable for the acts of the Second Defendant
in casu
I am not called upon to make a ruling in this regard.
QUANTUM
[10]
Evidence of the fear, discomfort and pain experienced by the
Plaintiff was led very briefly. Save for the medical records
that were handed up, no evidence was led as to the possible effects
that the injuries may have. I am not under the impression
that
the leg fracture has had a lasting impact on the quality of life of
the Plaintiff. The removal of the left testicle
is most
likely to have the most far-reaching impact, yet the Plaintiff did
not assist the court in respect of the quantum that
ought to be
awarded in this regard. Whilst he has been assured that he will
be in a position to father children, one must
be alive to the
consequences of the cosmetic effect of this loss on the Plaintiff.
I am in a position where I must
exercise my discretion in the
awarding of general damages to the Plaintiff.
[11]
In Nkosi v Minister of Safety and Security
[2012] JOL 29147
(GSJ) the
Plaintiff was awarded an amount of R100 000.00 in general damages in
consequence of an assault which resulted in a cut
lip and tenderness
to his testicles. In Bantu v Minister of Police and another
[2015] JOL 33018
(GJ) the Plaintiff was awarded R80 000.00 for an
assault, during which he was
inter alia
held by his
testicles. Plaintiff’s counsel referred me to the
unreported judgment of Nicholls J in Sibanda and another
v The
Minister of Police and another (2011/23229) in which the
Plaintiff was shot in both legs. The aforesaid matter
is
however different from this matter, as there was evidence to the
effect that the injury had a lasting effect on the Plaintiff’s
mobility. That fact is missing in this matter. The
Plaintiff was charged and detained in hospital under police guard
for
three weeks and upon discharge was taken to a holding cell the night
before his appearance in court, whereupon he was granted
bail.
I cannot ignore that he would in any event have remained in hospital
for three weeks, thus the
de facto
detention was only for one
night.
[12]
Having regard to the evidence before me and comparable case law, I
award an amount of R150 000.00 to the Plaintiff in respect
of general
damages.
[11]
In the result the following order is made:
(1)
the First Defendant is held to be vicariously liable for the acts of
the Second Defendant and is accordingly to pay the sum
of R150 000.00
to the Plaintiff;
(2)
Interest on the above amount at a rate of 15,5% per annum from date
of judgment to date of payment;
(3)
Costs of suit, including the cost of the interpreter.
R
HERTENBERGER
ACTING
JUDGE OF THE
HIGH
COURT OF SOUTH AFRICA–
JOHANNESBURG
APPEARANCES
COUNSEL
FOR PLAINTIFF: ADV. MATHOPO
PLAINTIFF’S
ATTORNEYS: MATHOPO ATTORNEYS
COUNSEL FOR
DEFENDANT: ADV. SITHOLE
DEFENDANT’S
ATTORNEYS: OFFICE OF THE STATE ATTORNEY
[1]
Neethling, Potgieter and Visser
Law
of Delict
7
th
Edition pp 92 to 94