Siphika v Minister of Police (40039/2017) [2021] ZAGPJHC 18 (11 January 2021)

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[2021] ZAGPJHC 18
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Siphika v Minister of Police (40039/2017) [2021] ZAGPJHC 18 (11 January 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
40039/2017
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED: YES
11/01/2021
In the matter between: -
XOLANI
SIPHIKA
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
BEZUIDENHOUT
AJ:
INTRODUCTION
[1]
The
plaintiff in this matter, Mr Xolani Siphika, claims damages from the
defendant, The Minister of Police, for the plaintiff’s
alleged
unjustified and unlawful assault
[1]
by a member of the South African Police Service (“SAPS”).
[2]
The
Minister is sued nominally as the political head of SAPS
.
Although
not admitted on the pleadings
[2]
,
it is undisputed based on the evidence led at trial, that the police
officers who were present at the time of the incident, were
in the
employ of SAPS and acted within the course and scope of their
employment.
[3]
The
plaintiff sustained injuries to his teeth and face
[3]
.
The nature and extent of those injuries are not relevant for the
present purposes, as I am called only to determine the issue
of
liability. The parties have agreed to a separation of issues in terms
of s 33(4) of the Uniform Rules of Court.
THE PLEADINGS
[4]
The
plaintiff’s claim is founded on a breach of legal duty pleaded
as follows in his particulars of claim
[4]
:
“
The
members of the South African Police Service failed to uphold their
legal duly (sic)
[5]
of protecting members of the public, instead they put their lives in
danger by firing gunshots without exercising caution and in
the
process assaulted the plaintiff.”
[5]
The plaintiff alleges further that: -
[a]  “
The
members of the South African Police Service were negligent in that
they failed to keep a proper lookout of who might get shot
if they
fired their guns, as a result of their negligence, the Plaintiff was
hit by their bullet”
(paragraph 5.1.2);
[b]  “
The
members of the South African Police Services should have foreseen
that firing gunshots in the presence of members of the public
will
endanger the members of the public’s lives, specifically the
Plaintiff”
(paragraph 5.1.3);
[c]  “
The
assault took place in public and within sight of members of the
public and after the Plaintiff was shot at by one of the
aforementioned
members of the South African Police Services, the
Plaintiff was abandoned and/or neglected by the said members of the
South African
Police Services at the scene of the incident”
(paragraph 5.2).
[6]
In his plea (as amended) the defendant
denies that the plaintiff was assaulted as averred: -
“
7.
AD PARAGRAPH 5.1, INCLUDING AD
PARAGRAPHS 5.1.1 TO 5.1.3
5.1.1 The defendant
denies the contents of these paragraphs.
5.1.2 In
amplification thereof and in the alternative to paragraph 4.1 of the
amended plea above, the defendant pleads self-defence
as the
justification in that –
5.1.2.1 Detective
Rapoone had been unlawfully attacked in the line of his duty and that
he had reasonable grounds for thinking
that he was in danger of death
or serious injury, and that the means he used were not excessive in
relation to the danger, and
that the means he used were the only or
least less dangerous whereby he could have avoided the danger.
5.1.3 In further
amplification thereof and in the alternative to sub-paragraph 8.2
above, the defendant pleads necessity as the
justification in that –
5.1.3.1 there were
reasonable grounds by Detective Rapoone in thinking that, because of
the crowd’s behaviour, there was
such a danger (commenced or
imminent) of injury to persons or damage to or destruction of
property as to require his action complained
off (sic), the means
used in such endeavor to restore law and order and avert such danger,
and resulting in one or more members
of the crowd being injured, was
not excessive having regard to all the circumstances, such as the
nature and the extent of the
danger, the likelihood of serious injury
to persons, the value of the property threatened and life at risk.”
[7]
For the sake of completeness, I point out
that there is no paragraph 4.1 or paragraph 8.2 in the defendant’s
original or amended
plea. It would appear to be a typographical error
if regard is had to the defendant’s Rule 28(1) notice. The
correct paragraphs
as they appear in the amended plea that ought to
have been referred to are 4.6.1 and 5.1.2. Paragraph 4.6.1 reads:
“
The
defendant denies shooting the plaintiff.”
[8]
Pleadings
form the backbone of an action and serve a very specific purpose and
that is to define the issues so as to enable the
other party to know
what case he or she is required to meet.
[6]
In this regard, the state of the pleadings in this matter leaves much
to be desired. This was no doubt brought about by substantial

amendments effected by both parties at the eleventh hour. As a
result, the pleadings are not as clear as they ought to have been.
In
many instances the case pleaded is at odds with the evidence advanced
at trial, as I will indicate later in this judgment.
COMMON CAUSE FACTS
[9]
On the pleadings and on the basis of the
evidence led at the trial, the following facts are common cause: -
[a]
On the 4
th
of March 2017 a male by the name of Mawande
(“the deceased”), was murdered at a tavern conducted at
505 Cosovo
Squatter Camp, Extension 1, Thokoza.
[b]
Members of the South African Police Service were summoned and arrived
on the scene to investigate.
[c]
Detective Rapoone, with his colleague, Constable Segage, met with a
female, Mandiluve, who informed
them that she knew where the suspect
who stabbed the deceased, resided.
[d]
Mandiluve accompanied Detective Rapoone and Constable Segage in their
marked double cab bakkie vehicle
(“the vehicle”) to point
out the place of residence of the suspect.
[e]
Detective Rapoone and Constable Segage returned to the scene of the
crime with the male suspect, Sipho,
who was seated at the right rear
passenger seat directly behind the driver’s seat. Detective
Rapoone was the driver and Constable
Segage was seated to his left in
the front passenger seat.
[f]
The purpose of them returning to the scene was to afford the suspect
an opportunity to point
out a woman to whom he had given the knife
used to stab the deceased.
[g]
Detective Rapoone stopped the vehicle in front of the tavern an
estimated 30 metres away from
a crowd of approximately 100 community
members who started gathering outside.
[h]
The suspect, still seated inside the vehicle, looked at the crowd but
could not see the woman.
[i]
Detective Rapoone left the vehicle to inform the two officers in
attendance inside the tavern,
that they were leaving the scene to
take the suspect to the police station. The suspect and the Constable
remained seated in the
vehicle.
[j]
As Detective Rapoone returned to the vehicle, the crowd was moving
closer towards the vehicle.
[k]
When Detective Rapoone climbed into the vehicle, he and Constable
Segage attempted to leave the
scene with the suspect and while
reversing the vehicle, a male called Sphamandla (“Sphamandla”),
opened the right rear
passenger door where the suspect was seated,
and pulled him out of the vehicle.
[l]
Detective Rapoone, who was in the driver’s seat at the time,
alighted from the vehicle,
and pushed the suspect back into the
vehicle.
[m]
Detective Rapoone returned to the driver’s seat and again
attempted to reverse the vehicle, Sphamandla
opened the rear right
passenger door once again and pulled the suspect out of the vehicle.
[n]
Detective Rapoone again alighted from the vehicle, approached
Sphamandla, slapped him with an open
hand and pushed the suspect back
into the vehicle.
[o]
Members of the crowd started closing in on Detective Rapoone and
pushed him away from the vehicle
with the purpose of preventing him
from climbing back into the driver’s seat.
[p]
The crowd was angry and violent and demanded the release of the
suspect into their custody so
that they could kill him. They started
attacking the vehicle.
[q]
Detective Rapoone drew his firearm.
[r]
Detective Rapoone was the only officer who had his firearm drawn and
cocked before a shot
was fired.
[s]
No other drawn firearms were seen either before or after the shot was
fired.
[t]
The plaintiff was hit by the bullet.
DISPUTED FACTS
[10]
The disputed facts as pleaded and advanced
at trial, may be summarized as follows:
(a)
The defendant disputes the plaintiff’s
version that he was shot by a police officer at the time and place in
question.
(b)
The defendant, more particularly Detective
Rapoone, drew his firearm and cocked it to ward off the crowd. He was
being attacked
by the plaintiff with a knife and kicked and punched
by two other males. The plaintiff denies any involvement in the
attack.
(c)
Sphamandla restrained Detective Rapoone by
holding his arms from the back. Sphamandla was wrestling Detective
Rapoone for the firearm.
The plaintiff has no knowledge of this as he
maintains that he had walked away from the crowd by then.
(d)
The plaintiff walked away from the crowd
shortly before he was shot. The defendant denies this and maintains
that the plaintiff
was one of the aggressors who was attacking
Detective Rapoone.
(e)
Detective Rapoone lost his firearm during
the scuffle. A shot was fired. The plaintiff denies this and states
that when he walked
away, the crowd shouted at him that the police
was going to shoot him, shortly whereafter a shot was fired.
(f)
The defendant testified that the murder
scene was secured shortly after the police first arrived at the
tavern. The plaintiff denies
this and avers that, on the Detective
Rapoone’s return to the tavern with the suspect, he left the
crowd to follow the police
inside the tavern to secure the scene.
(g)
The police summoned an ambulance to the
scene to take the injured plaintiff to the hospital. The plaintiff
denies this and states
that he went home and took a taxi to the
clinic where he was collected by the ambulance and taken to hospital.
ISSUES FOR
DETERMINATION
[11]
In
their joint practice note
[7]
dated the 20
th
of August 2020, the parties crystallised the triable issues as
follows: -
“
7.1
Whether the member of the defendant shot the plaintiff
during a scuffle whereby the community members sought to
disarm the
police officer;
7.2   Should the
court find that the member of the defendant did shoot the plaintiff,
whether such shooting was in self-defence,
in the alternative;
7.3   Whether
such shooting was out of necessity.”
[12]
The case pleaded in
advance by the plaintiff is that he was shot by a police officer.
This is denied by the defendant. The plaintiff
therefore bears the
onus of satisfying the court on this issue. This is however not the
end of the matter.
The plaintiff
relies on a legal duty owing by members of SAPS to protect members of
the public and that a failure to do so, would
constitute negligence
on the part of the defendant.
[13]
The defendant is quite alive to its duty to
raise a defence or ground of justification notwithstanding its bare
denial of the shooting.
Despite its denial of the shooting, the
defendant does plead facts that point in the direction of a
justification for the shooting.
Therefore, the onus rests on the
defendant to prove a ground of justification.
ONUS
[14]
It
is trite that every infringement of bodily integrity is
prima
facie
unlawful and once the infringement is proved, the onus rests on the
wrongdoer to prove a ground of justification.
[8]
[15]
The
Supreme Court of Appeal (“SCA”) in
Mabaso
v Felix
[9]
laid down the general principles that apply in matters involving
delicts affecting the bodily integrity of the claimant and in

circumstances where the defendant raises a defence or ground of
justification, such as self-defence. The Court held that ordinarily

the defendant bears the overall onus of proving his/her justification
for the otherwise unlawful conduct. It is not for the plaintiff
who
normally bears the overall onus of proof in a delictual action, to
disprove the defendant’s ground of justification,
unless the
particular pleadings in the case place this onus on the
plaintiff.
[10]
[16]
The
SCA cited
Wigmore
:
[11]
-
“…
So
that the plaintiff put to the proof merely the nature of his harm,
and the defendant’s share in causing it; and the other

circumstances, which, if they existed leave him without a claim, are
put upon the defendant to prove.”
THE WITNESSES
[17]
Three witnesses gave evidence during a
physical hearing in their mother tongue with the assistance of a
sworn interpreter.
EVIDENCE FOR THE
PLAINTIFF
Examination-in-chief
[18]
The plaintiff, Mr Siphika, testified
first. The plaintiff did not call any other witnesses. I summarise
the relevant aspects
of the plaintiff’s oral evidence.
[19]
On
the morning of the incident (4 March 2017 at 6h00), the plaintiff was
at home. He intended to visit his brother, Zibele, who
lived at the
Mandela informal settlement. After he bathed and clothed himself, he
left his home to meet Mawande
[12]
who would accompany the plaintiff to his brother. The plaintiff was
supposed to meet Mawande at his home, but when the plaintiff
called
him, Mawande told him that he was at Doctor’s Tavern (“
the
tavern”
).
The plaintiff therefore made his way to the tavern and upon his
arrival, he started looking for Mawande.
[20]
When
the plaintiff was asked by his counsel what his relation to Mawande
is, the plaintiff stated that Mawande was his cousin. The
pleadings
describe Mawande as the plaintiff’s brother.
[13]
[21]
When
the plaintiff could not find Mawande outside he started making
enquiries. He encountered Sphamandla who informed the plaintiff
that
Mawande was inside the tavern. The plaintiff stated that he knew
Sphamandla very well because they were cousins.
[14]
[22]
As the plaintiff went back inside the
tavern, he noticed Mawande coming from the toilet. The plaintiff
approached Mawande and told
him: “
Let’s
go”
. Mawande did not respond but
walked closer to the plaintiff. The plaintiff repeated his
instruction for them to leave the tavern,
but still Mawande did not
reply. Mawande went to sit on a beer crate and when the plaintiff
requested Mawande for a third time
to go with him, Mawande just
looked at the plaintiff without giving any answer. Shortly
thereafter, Mawande fell down and remained
lying on the floor. He
took out his cellphone and wallet and handed it to the plaintiff. The
plaintiff tried to assist Mawande
in standing up by taking him by his
hand. Once the plaintiff took Mawande’s hand, he looked into
his face and noticed that
Mawande was no longer breathing.
[23]
Before the plaintiff was able to ascertain
why Mawande was no longer breathing, he was approached by a certain
lady who told the
plaintiff that Mawande had been stabbed. When the
plaintiff learned that his cousin had been stabbed, he turned to
where Mawande
was lying and took off a long jacket that he was
wearing. The plaintiff then noticed a stab wound above Mawande’s
left collarbone,
which he described as a small hole. It was the only
wound the plaintiff could see. The plaintiff did not notice any blood
on or
around Mawande.
[24]
Someone summoned the police who arrived at
the tavern after 07:00. The plaintiff did not call the police as he
was attending to
his cousin. A police officer came to the plaintiff
and he told them that the injured person was his “
brother”
,
Mawande. The plaintiff identified the police by the marked double cab
bakkie vehicle they were driving. He stated that he was
approached by
a male police officer.
[25]
The police officer asked the plaintiff who
had injured Mawande, whereupon the plaintiff replied that he did not
know as he himself
had just arrived at the scene. The police asked if
the person who had inflicted injury on Mawande was still around. The
plaintiff
informed them that a woman who was present at the tavern
knew who stabbed Mawande. The plaintiff informed the police officer
that
this woman also knew where the suspect resided, but that she was
afraid to be seen with the police as the friends of the suspect
were
still present at the tavern. The plaintiff brought the woman to the
police.
[26]
Two police officers thereupon invited the
woman to get into the police vehicle, but she refused. The plaintiff
therefore suggested
that the police leave the scene and meet with the
woman around the corner from the tavern so that those who were
present at the
tavern could not see her going with the police. The
police agreed, left the scene, went around the corner and met the
woman.
[27]
The two police officers the plaintiff spoke
to returned approximately ten minutes later, without the woman, but
with a suspect seated
at the back of the police vehicle. At the time,
the plaintiff was approximately 15 to 20 metres away from the
police vehicle.
[28]
As the police stopped, members of the
community ran towards the vehicle. They pulled the doors and demanded
that the police officers
let the suspect out of the vehicle so that
they could kill him. At the time the driver of the vehicle was still
behind the steering
wheel and another police officer was seated next
to him. The plaintiff, when asked where he was when the community
gathered around
the police vehicle, responded: “
I was
around there. I was at a distance, there were many people”
.
[29]
The community carried on pulling at the
doors of the vehicle. Sphamandla joined the crowd and opened the door
where the suspect
was seated. The driver alighted from the vehicle
and encountered Sphamandla at the door of the vehicle. The driver hit
Sphamandla
with an open hand on the side of his face.
[30]
When the plaintiff was asked by counsel
what Sphamandla had done to deserve the assault, the plaintiff
replied: “
He was holding onto the
handle, he was forcing open the door”
.
Upon witnessing the slap, the plaintiff came closer to the vehicle
and warned the police officer not to do that. The plaintiff
told the
officer to leave the scene with the culprit and not to hit members of
the community.
[31]
When asked by counsel how he felt when he
saw his “brother” being assaulted, the plaintiff did not
answer the question.
When the plaintiff was asked to describe his own
demeanour, he did not answer this question directly either. Instead,
he testified
that he also warned Sphamandla to leave the vehicle as
the police had apprehended the suspect.
[32]
The driver of the vehicle wanted to assault
someone else, but the plaintiff told him to go and as a result, the
police officer opened
the driver door and got back into the vehicle.
At that moment the plaintiff was following the police to the scene
inside the tavern
where Mawande had died. Sphamandla remained at the
vehicle.
[33]
The plaintiff was asked by counsel why he
walked away. He replied that he was following the police as they had
danger tape with
them and he wanted to go and point out the scene to
them.
[34]
As the plaintiff followed the other
policemen, he heard people saying: “
He is
going to shoot you”
. These people
were members of the community who remained at the vehicle. The
plaintiff then heard only one shot fired. The plaintiff
saw that the
police had firearms in their holsters.
[35]
The plaintiff did not know why the shot was
fired, did not see it being fired but only heard it. He saw a person
running away with
a gun. He identified the person as the police
officer who previously alighted from the vehicle. Members of the
community were chasing
the police officer and he was pointing a
firearm at them.
[36]
Then the plaintiff heard the shot fired and
saw the police officer running. He felt a blow on the bottom right
side of his neck.
The plaintiff thought that he was hit by a stone.
Blood was coming out of the wound and running down his shoulder. The
plaintiff
then went home. The plaintiff was later informed that he
had been shot. The bullet entered the bottom right side of the neck
and
exited at the bottom right chin.
[37]
The plaintiff was asked by counsel why he
decided to return home. His response was that he was in tears and
decided to go home.
He stated that an ambulance was called but
because there was a delay, the plaintiff decided to hire a taxi to
the clinic. The ambulance
later arrived at the scene and was referred
to the clinic where the plaintiff was collected and taken to
Natalspruit Hospital in
Vosloorus.
[38]
The plaintiff stated that his heart was
sore when he learned that he had been shot by the police. He
testified that he spent two
weeks in hospital, but asked the doctors
to release him as he was unable to eat. The doctors told the
plaintiff not to go home,
but to go to Wits to receive treatment for
the loose and damaged teeth in his bottom jaw as well as the gap
between his front teeth.
[39]
When the plaintiff was informed that he had
been shot by the police, he went to Thokoza police station to report
it. Since he reported
the incident, he has never been asked to go to
court. The plaintiff confirmed that the police took a written
statement from him.
[40]
The
plaintiff was requested to comment on certain allegations contained
in the defendant’s amended plea.
[15]
At paragraph 4.4.7 of the defendant’s plea it is alleged
that Detective Rapoone came back to Constable Segage with a
witness
to the murder, a certain Ms Mandiluve who told him that the
deceased had a quarrel with the suspect and that the suspect
had
stabbed the deceased. The plaintiff’s response was that he was
the one who asked Mandiluve to accompany the police.
[41]
At paragraph 4.5.2 of the amended plea the
defendant alleges that the murder scene was secured and that no-one
was inside the tavern,
except for Constable Malatjie and Detective
Thibela. The plaintiff replied that he was injured before the scene
was secured.
[42]
The defendant alleges at paragraph 4.6.7 of
his plea that on the second occasion, Sphamandla opened the vehicle
door again in an
attempt to pull out the suspect and Detective
Rapoone once more stepped out to stop him only when
Mawande
accosted Detective Rapoone and tried to disarm him when the plaintiff
stabbed detective Rapoone on his right hand. The plaintiff’s

only reply was that Mawande was already dead.
[43]
Finally, when the plaintiff was asked
whether the community was attacking the police, he replied that they
wanted the culprit and
not the police.
Cross-examination
[44]
During cross-examination the plaintiff was
asked who had shot him. He replied that he did not know the person’s
name. The
plaintiff admitted that he consumes alcohol, but denied
that he had been drinking on the day of the incident.
[45]
When asked how he felt when his “
brother”
(the deceased) was stabbed, the plaintiff replied: “
painful”
.
He was asked whether he was angry, to which he replied “
I
was worried that the suspect would disappear”
.
The plaintiff was asked whether he was angry after the suspect had
been brought to the scene. The plaintiff said “
no”
.
The plaintiff was asked whether he was at any stage angry, to which
he replied “
no”
.
[46]
The plaintiff was asked whether the members
of the community were angry. He said “
yes”
.
It was put to the plaintiff that it was incredulous that members of
the community would be angry, but not him. The plaintiff replied
that
the suspect had been caught and he was therefore not worried.
[47]
The plaintiff was asked whether Sphamandla
was angry to which the plaintiff replied “
yes”
.
Again, it was put to the plaintiff that everybody unrelated to the
deceased was angry, but not the plaintiff who was related.
The
plaintiff replied that he was angry until the suspect had been
apprehended.
[48]
The plaintiff admitted that Sphamandla was
part of the crowd who wanted revenge. However, when asked whether he
wanted revenge,
plaintiff said no.
[49]
The plaintiff was questioned regarding the
number of people in the crowd, to which he replied approximately 100.
It was put to the
plaintiff that a shot was fired to disperse members
of the community. The plaintiff replied that he did not know as he
only heard
the gunshot. He did however state that he did not see
anyone running away, but only the police officer holding a firearm.
[50]
The plaintiff was confronted with
contradicting allegations contained in his own particulars of claim,
more particularly the allegation
that when he approached the police
officer for the purpose of warning him not to hurt members of the
community and to leave, the
police officer had already removed his
firearm from his holster and was holding it to the side. The
plaintiff denied the correctness
of this allegation and stated: “
The
last time I saw him was when he pulled off. At the time I approached
him after the slap, his gun was not in his hand”
.
When the plaintiff was told by counsel that this allegation is
contained in his claim, he disagreed and again denied the correctness

by stating: “
When I spoke to him,
he did not have a firearm in his hand”
.
[51]
It was put to the plaintiff that he was
part of the angry community members. The plaintiff denied this and
stated that he was standing
outside alone.
[52]
The plaintiff was confronted with the
version of the defendant, more particularly that Sphamandla held
Detective Rapoone from the
back and that the plaintiff stabbed the
detective with a knife. In addition, that the plaintiff had laid
charges of assault with
the intent to commit grievous bodily harm and
not attempted murder, but that the prosecutor issued a
nolle
prosequi
. The plaintiff denied any
knowledge.
[53]
The plaintiff was told that the defendant
would give evidence that the deceased was lying in a pool of blood at
the scene. The plaintiff
denied this and stated that the deceased was
not bleeding.
[54]
On the issue of returning home after he was
injured, the plaintiff was asked how it was possible that he managed
to walk home after
being shot. The plaintiff merely confirmed that he
did. He was also asked how the ambulance knew to find him at the
clinic. The
plaintiff avoided the question and simply reiterated that
the ambulance found him at the clinic with a referral letter to the
hospital.
[55]
It
was pointed out to the plaintiff that his version in court was not in
line with the allegations contained in his amended particulars
of
claim.
[16]
The plaintiff
alleged that he was taken to Thele Mogorane Hospital in Vosloorus by
an ambulance which was on the scene attending
to the deceased. In
response, the plaintiff disagreed with the allegation in the
particulars of claim and stated that it is not
how it happened. At
paragraph 4.7 (amended paragraph 4.9) of the particulars of
claim the plaintiff alleged that the force
of the bullet caused him
to hit the ground lying on his back, whilst it was not his evidence
during the trial. The plaintiff denied
that he fell to the ground.
Re-examination
[56]
During re-examination the plaintiff
confirmed that there were many people surrounding the vehicle and
that they were talking amongst
themselves and threatened to kill the
suspect if they saw him. On being asked about the defendant’s
suggestion that the plaintiff
has a violent character and that he was
part of the angry crowd, the plaintiff replied with a laugh. When
asked why the plaintiff
was standing alone when the community
approached the police vehicle, the plaintiff replied: “
We
came together. I still had people around me”
.
[57]
The plaintiff was again confronted with the
version that the defendant’s witnesses would give evidence that
Sphamandla was
holding Detective Rapoone from the back. The plaintiff
replied: “
I did not see it”
.
It was further put to him that the defendant’s witnesses would
give evidence that the plaintiff stabbed the detective with
a silver
knife. The plaintiff replied: “
No.
I use them in the kitchen”
.
[58]
The plaintiff reiterated during
re-examination that he did not see any blood at all, even after he
took off the deceased’s
overcoat.
[59]
After re-examination was concluded, the
plaintiff closed his case.
EVIDENCE FOR THE
DEFENDANT
Constable Segage
Examination in chief
[60]
Constable Segage was the first of two
witnesses called on behalf of the defendant. He testified that he was
based at Thokoza SAPS
and held the rank of constable. Constable
Segage stated that on the 4
th
of
March 2017, a Saturday, they received a call from the charge
office about a murder that had occurred at Mapeding Tavern
(“the
tavern”).
[61]
On arriving at the tavern, the ambulance
was already there as well as community members. The paramedics gave
the police a declaration
of death. Constable Segage noticed that the
deceased was lying in a pool of blood. The paramedics informed them
that the cause
of death was a stab wound.
[62]
Constable Segage thereafter contacted the
relevant role players being the detective and forensic staff, more
particularly Detective
Rapoone and Detective Constable Thibela.
[63]
When Detective Rapoone arrived at the
scene, he told all the people to move away from the scene. He wanted
to secure the scene by
putting tape around to keep people out.
Constable Segage showed Detective Rapoone the deceased and handed
over the scene to him.
Detective Rapoone commenced his
investigations.
[64]
After 10 minutes, Detective Rapoone
returned to Constable Segage with a woman who said she knew the
suspect and where he lived.
She agreed to point out the suspects
place of residence.
[65]
Detective Rapoone and Constable Segage,
accompanied by the woman, proceeded to the suspect’s residence
which was not far from
the tavern. They collected the woman away from
the tavern where the friends of the suspect could not see her get
into the police
vehicle. Constable Segage could not recall the exact
or full address where the suspect resided, but confirmed that the
woman showed
them the house. Before she alighted from the vehicle,
the woman provided them with a name of the suspect – Sipho.
[66]
Detective Rapoone and Constable Segage
thereafter alighted from the vehicle and met another woman in the
yard who identified herself
as Sipho’s mother. They informed
her that they were looking for Sipho. She took them to the back room
where Sipho was sleeping.
[67]
The police knocked on the door and Sipho
opened. They introduced themselves and started questioning him. Sipho
informed them that
an argument ensued between him and the deceased
and that he stabbed the deceased. Sipho’s rights were explained
to him, whereafter
he was handcuffed and taken to the vehicle. He was
seated behind the driver and the child locks were activated so as to
prevent
the doors from being opened from the inside.
[68]
Detective Rapoone asked the suspect what he
did with the knife he used to stab the deceased. The suspect informed
Detective Rapoone
that he left the knife at the tavern and handed it
to a certain woman. Constable Segage cannot recall whether the
suspect gave
a name for the woman. Detective Rapoone thereupon
announced that they would first return to the scene to identify the
woman and
obtain the knife before proceeding to the police station.
[69]
Upon their arrival at the scene many people
had gathered. Constable Segage estimated the number of people to be
50.
[70]
They stopped the vehicle a few paces away
from the tavern where they could see the people. They did not want
the suspect to get
out of the vehicle but asked him to look whether
the woman was amongst the crowd of people. Constable Segage estimated
the distance
between the parked vehicle and the crowd of people to be
30 metres.
[71]
When the suspect advised the police
officers that he did not see the woman amongst the crowd, Detective
Rapoone alighted from the
vehicle to inform officers Thibela and
Malatjie that they were leaving the scene to take the suspect to the
police station.
[72]
Upon Detective Rapoone’s return he
climbed back into the vehicle and switched on the engine. At that
moment they were surrounded
by a number of people, namely five on the
side where Constable Segage was seated and six on the driver’s
side where Detective
Rapoone was. Constable Segage confirmed that he
was seated in the left passenger seat next to Detective Rapoone.
[73]
As they were busy reversing, a young man
with dreadlocks, later identified as Sphamandla, opened the rear
right passenger door where
the suspect was seated. Sphamandla grabbed
the suspect and pulled him out of the vehicle. Detective Rapoone
stopped the vehicle,
alighted, placed the suspect back inside the
vehicle and closed the door. Detective Rapoone warned Sphamandla not
to do it again.
[74]
Detective Rapoone returned to the driver
seat and switched on the vehicle. At that moment, Sphamandla opened
the door again, grabbed
the suspect and pulled him out. Detective
Rapoone alighted from the vehicle, took the suspect, placed him
inside the vehicle, closed
the door and slapped Sphamandla with an
open hand. The group on the side of Sphamandla pushed Detective
Rapoone away and prevented
him from getting back into the vehicle.
[75]
The crowd asked Detective Rapoone why he
slapped Sphamandla. As they were busy pushing Detective Rapoone,
Constable Segage alighted
from the vehicle and walked around to the
suspect’s door to protect him. Constable Segage stated that the
group that was
on his side of the vehicle was not violent and that
they did not attempt to open the doors. He therefore went to guard
the suspect’s
door. At that stage the crowd was still busy
pushing Detective Rapoone. Constable Segage noticed that the five
members who were
initially on his side of the vehicle had now joined
the crowd on the side of Detective Rapoone, which included
Sphamandla.
[76]
At that stage Detective Rapoone took his
firearm from his holster and cocked it. Constable Segage testified
that as he was focusing
on the suspect’s door, he only heard
the sound of a gunshot. The group of six fell to the ground and the
members who later
joined them ran away.
[77]
As Detective Rapoone’s group stood
up, they also ran away and Constable Segage saw blood on one of them.
He stated that he
did not see clearly who was bleeding.
[78]
Constable Segage looked inside the vehicle
and noticed that the key was still in the ignition. He jumped into
the driver’s
seat, switched on the vehicle and started
reversing. In the process of reversing, Detective Rapoone jumped back
into the vehicle
onto the front left passenger seat.
[79]
Constable Segage noticed that Detective
Rapoone’s crime scene apron was torn and that his right hand
was bleeding. However,
Constable Segage did not know whose blood it
was.
[80]
On their way to the police station,
Constable Segage called the charge office to summons an ambulance to
attend to the person who
was injured.
[81]
When Constable Segage was asked where the
rest of the community members were, he gave evidence that during the
process of securing
the door of the suspect and members of the
community pushing Detective Rapoone, the remaining number of
community members joined
the crowd at the vehicle. He estimated the
number of people at the vehicle to be 70.
[82]
Constable Segage stated that the group
around the vehicle had been drinking alcohol as they smelled of
liquor. Constable Segage
gave evidence that the group that was
initially not part of the crowd closest to the vehicle, stood
approximately eight metres
away. When the bigger group saw that
Detective Rapoone wanted to pull off, they came closer the vehicle.
Cross-examination
[83]
During cross-examination Constable Segage
was asked about the crowd’s demeanour. He replied that they
wanted to know who killed
the deceased and that they were angry.
[84]
Constable Segage was confronted with the
plaintiff’s version that he was the one who informed Detective
Rapoone of the woman
who knew where the suspect resided. Constable
Segage replied that Detective Rapoone came over to him, accompanied
by the woman,
who knew where the suspect resided.
[85]
He was asked whether it was imperative to
return to the scene, to which Constable Segage replied that it was as
the possibility
existed that the woman who was the custodian of the
murder weapon could still be in attendance. Constable Segage was
asked why
they did not go to the station for the processing of the
suspect, to which Constable Segage replied that once they were
informed
by the suspect that he had given the knife to a woman at the
tavern, they believed that they could still find her there.
[86]
Constable Segage was asked whether there
was a lesser crowd upon their return to the tavern. He stated in
reply that there were
many people. In the same vein, it was put to
Constable Segage that he gave evidence in chief that his colleagues
were already in
the process of securing the scene. Importantly, his
reply was that the scene was secured with tape when first they
arrived on the
scene. Constable Segage’s response was not
challenged any further.
[87]
Constable Segage was cross-examined on the
content of standing order G341 which deals with the processing of
arrested persons and
that the standing order states that it must be
done as soon as possible. Constable Segage confirmed that he was
familiar with the
standing order after it was read to him. Constable
Segage was asked why they still had to return to the scene if there
were already
colleagues in attendance. Constable Segage replied that
it was necessary in order to afford the suspect the opportunity to
point
out the woman who was in possession of the murder weapon.
[88]
Constable Segage was asked what the group
on the side of Detective Rapoone was doing. He reiterated that they
were pushing him away
from the vehicle. They were fighting with
Detective Rapoone and asking him why he slapped Sphamandla. They
wanted the suspect to
remain with them.
[89]
Constable Segage confirmed that he saw
Detective Rapoone pulling out his firearm, but that he did not know
for what reason. He was
asked whether there were any other firearms
within the vicinity, to which Constable Segage replied that it was
only Detective Rapoone’s
firearm and his own which was still
secured in its holster. Constable Segage confirmed that he only heard
one gunshot. When it
was put to him that the crowd dispersed, he
agreed.
[90]
Constable Segage testified that he did not
see a knife during his interactions with Detective Rapoone’s
group.
[91]
He also confirmed that the ambulance who
declared the deceased dead left the scene and that he summonsed
another ambulance to the
scene after he noticed that someone in the
crowd had been injured.
[92]
It was suggested to Constable Segage that
the altercation at the vehicle only occurred between the small
six-member group of Detective
Rapoone and Constable Segage’s
five-member group and that they had no interaction with the larger
group. Constable Segage
replied by stating that they were violent and
close-by and smelled of liquor. He could see that they were under the
influence.
Re-examination
[93]
In re-examination it was put to Constable
Segage that the standing order stipulates as soon as possible and
that it means that it
must be done at the earliest possible moment.
He was asked whether the suspect was taken to the police station at
the earliest
possible moment. Constable Segage replied yes.
Detective Rapoone
Examination-in-chief
[94]
Detective Rapoone testified as the second
and last witness for the defendant. He has been a police officer for
10 ½ years
and promoted to the rank of detective 2 ½
years ago.
[95]
Detective Rapoone gave evidence that on the
4
th
of
March 2017 at 05:45 he reported for duty at the Thokoza SAPS and
that he was stationed at the crime office as a detective
on standby.
He was working with Detective Constable Thibela.
[96]
He was informed by Detective Constable
Thibela that a murder had occurred at Phola Park. He immediately, in
the company of Detective
Constable Thibela, proceeded to the scene.
[97]
When they arrived at the scene, they
encountered Constable Segage and Constable Malatjie from the
uniformed branch who were the
first to arrive. On his arrival
Constable Malatjie pointed out to Detective Rapoone where the person
died. As the standby detective,
Detective Rapoone took over the
scene. He placed tape around the scene and told members of the public
to leave the tavern.
[98]
Detective Rapoone gave evidence that the
people inside the tavern were talking and that one could see that
they were drunk. One
could also smell that they had taken liquor.
[99]
He thereafter cordoned off the scene and
everyone, including the family of the deceased, proceeded to the
outside of the tavern.
[100]
Detective Rapoone then questioned members
of the deceased’s family and asked them what had happened. No
one answered him.
He then asked other people outside, whereupon a
woman who appeared to be alone came closer, identified herself as
Mandiluve and
told Detective Rapoone that a quarrel had occurred
between the deceased and a man called Sipho. Mandiluve told Detective
Rapoone
that Sipho arrived with a knife but that she was not certain
whether he stabbed the deceased. Detective Rapoone asked Mandiluve

whether she knew where the suspect stayed, which she confirmed. She
also agreed to accompany him to point out the suspect’s
place
of residence.
[101]
Detective Rapoone, accompanied by Constable
Segage and Mandiluve drove to the suspect’s residence, which
Mandiluve pointed
out. She thereafter alighted from the vehicle and
returned to the tavern.
[102]
Detective Rapoone recalls the number of the
house to be 5313 painted in big numbers on the wall and situated at
Khola Park Extension 1.
It was an RDP house.
[103]
Detective Rapoone and Constable Segage
introduced themselves to the mother of Sipho and asked her where he
stayed. She took them
to the backyard and knocked on the door of the
back room. Sipho opened. Sipho’s mother told him that the
police were looking
for him. He was wearing jeans and a T-shirt.
Detective Rapoone questioned Sipho regarding the quarrel that he had
with Mawande
and the stabbing.
[104]
The suspect informed Detective Rapoone that
when he left the tavern, the Mawande was still alive. Detective
Rapoone informed the
suspect that Mawande had died. Sipho seemed
shocked. Detective Rapoone thereafter told him that he was arresting
him, he touched
him, placed him under arrest and read his rights to
him in terms of section 35 of the Constitution.
[105]
Detective Rapoone asked the suspect where
the knife was. The suspect told him that he had left the knife with
the woman who sat
with them at the tavern.
[106]
Constable Segage and Detective Rapoone
thereafter took the suspect straight to the tavern. Upon their
arrival they noticed a group
of people outside the tavern. Detective
Rapoone estimated there to be 80 people. They stopped approximately
30 metres away
from the crowd. Constable Segage asked the
suspect to look for the woman and to point her out. The suspect
confirmed that he did
not see her.
[107]
Detective Rapoone gave evidence that when
he arrived at the scene the first occasion, he found the deceased
lying on his back full
of blood around the chest and on the floor. He
was informed by the paramedics that the suspect had been stabbed with
a sharp instrument
in the chest.
[108]
Detective Rapoone was asked why it was
necessary to take the suspect to the scene of the crime. The response
was that the suspect
had left the weapon with a certain woman. The
woman and the type of knife used to stab the deceased were unknown to
the police.
They therefore required the suspect to do the pointing
out.
[109]
After the suspect informed them that the
woman was not there, Detective Rapoone informed Constable Segage that
he was going to tell
the other police officers, Thibela and Malatjie,
on the scene that they were taking the suspect to the police station.
Detective
Rapoone was asked whether it was necessary to tell the
other police officers, to which he responded that it was very
important
as they had to know their whereabouts.
[110]
Detective Rapoone alighted from the vehicle
and went to inform his colleagues. The suspect and Constable Segage
remained seated
in the vehicle. The suspect’s hands were
handcuffed and the child locks at the rear doors were activated. When
Detective
Rapoone returned to the vehicle, he found a group
approximately 4 metres away from the car. They were arguing amongst
themselves
as to whether or not the suspect was the right one.
[111]
Detective Rapoone explained that the path
to the tavern consisted of a narrow street and that it did not allow
enough space for
the turning around of the vehicle. Therefore, the
only way to leave the scene was to reverse the vehicle.
[112]
Detective Rapoone climbed back into the
vehicle, switched on the engine and started reversing. However, a
group of people was standing
behind the vehicle, preventing Detective
Rapoone from reversing. The crowd thereafter broke up into two groups
on both sides of
the vehicle.
[113]
Detective Rapoone noticed a male with
dreadlocks amongst the group. Detective Rapoone saw the same male
earlier amongst the family
members when he was questioning them.
Detective Rapoone was later informed that this person is Sphamandla.
[114]
Sphamandla opened the rear door where the
suspect was seated and pulled him out of the vehicle. Detective
Rapoone alighted from
the vehicle and approached Sphamandla, who
asked him where they were taking the suspect. Detective Rapoone
informed him that they
were taking him to Thokoza police station to
lock him up.
[115]
Whilst Sphamandla was pulling the suspect
out of the vehicle, the other members of the group were just standing
there, not doing
anything. Detective Rapoone explained to everyone
that they were taking the suspect to the Thokoza police station. He
put the suspect
back into the vehicle. The people around the vehicle
were smelling of alcohol, including Sphamandla.
[116]
Detective Rapoone, as he got back into the
driver’s seat, attempted to reverse for the second time, but
Sphamandla came again
and opened the door on the side where the
suspect was seated. Sphamandla pulled him out of the vehicle again.
Detective Rapoone
got out of the vehicle, approached Sphamandla,
slapped him and put the suspect back into the vehicle. Detective
Rapoone was asked
why he slapped Sphamandla. His response was: “
He
did not want to listen”
.
[117]
As Detective Rapoone was attempting to
return to the driver’s seat, a family member of the deceased
came closer with a big
silver knife in his right hand. He started
questioning Detective Rapoone about where he was taking the suspect.
Detective Rapoone
reiterated that they were taking him to Thokoza
police station. The family member said to Detective Rapoone: “
You
will never go away with him”
.
Detective Rapoone later learned that the family member was the
plaintiff.
[118]
The plaintiff pushed the door and insulted
Detective Rapoone. They also started pushing the detective. There
were three of them
doing the pushing at the time. Detective Rapoone
pushed back as he wanted to get back into the vehicle and take the
suspect to
the police station. He felt that the suspect was under
threat. As Detective Rapoone was pushing back, he was stabbed with
the knife
on the little finger. Sphamandla and the plaintiff came
closer and started assaulting Detective Rapoone. They were kicking
and
punching him. At that moment, Detective Rapoone took out his
firearm, cocked it and faced it down to the ground at a 90 degree

angle.
[119]
When Detective Rapoone was asked why he
cocked his firearm, he stated that because of the manner in which
they were attacking him,
he only wanted to scare them and therefore
cocked and pointed down the firearm. Someone was holding him from the
back with both
hands. They were fighting for the firearm, moving
around. Detective Rapoone saw that it was Sphamandla. His hands
holding the firearm
were moving left to right as they were struggling
for the firearm and in the process the firearm discharged. Everybody
fell to
the ground.
[120]
When Detective Rapoone was asked who had
fired the shot, he replied: “
I don’t
know”
. He was asked who was in
possession of the firearm, to which he replied: “
Both
of us”
.
[121]
Detective Rapoone gave evidence that
everyone, including him, fell down to the ground. Thereafter,
Sphamandla ran away. The rest
of the crowd stood up and moved away.
Detective Rapoone found his firearm lying on the ground and picked it
up. Detective Rapoone
stated that during the firing of the shot and
the struggle he lost the firearm.
[122]
Just after Detective Rapoone picked up the
firearm, he was informed that someone had been shot. When Detective
Rapoone looked at
the crowd and at the plaintiff, he saw blood in the
centre of his chest.
[123]
After the incident, Detective Rapoone
climbed into the passenger seat of the vehicle, next to Constable
Segage who managed to successfully
reverse the vehicle away from the
tavern. On their way to the police station they encountered back up
police officers and
swopped vehicles. Thereafter, he drove straight
to the police station where the suspect was detained.
[124]
Detective Rapoone stated that he laid
charges against Sphamandla for pulling a suspect out of a police
vehicle and interfering with
police work. He also laid charges in
relation to the stabbing. Both cases were centralised.
Cross-examination
[125]
During cross-examination Detective Rapoone
was asked about the demeanour of the crowd when he arrived at the
tavern. He described
them as inquisitive but not angry.
[126]
He denied that it was the plaintiff who
informed him of Mandiluve.
[127]
Detective Rapoone was asked to explain the
need for returning to the scene with the suspect. Detective Rapoone
reiterated that they
went to find the murder weapon. He was asked why
he did not call his colleagues and informed them that they were
leaving the scene
instead of getting out of the vehicle to tell them.
Detective Rapoone said that he did not think about doing that.
[128]
Detective Rapoone was asked why he did not
keep on reversing. Detective Rapoone replied that because the suspect
was being taken
out of the vehicle. He was also asked why he
assaulted Sphamandla, to which Detective Rapoone replied:
“
You
cannot control a person who has taken liquor”
.
[129]
Detective Rapoone was asked what made him
pull out his firearm. He replied that after he spoke to Sphamandla
and slapped him, he
tried to climb back into the vehicle. However,
the plaintiff was right in front of him accompanied by two males. He
pushed the
plaintiff who then stabbed him with a knife. Two other
males attacked him.
[130]
It was put to Detective Rapoone that he
pulled the trigger. He denied this. He was asked whether Sphamandla
had pulled the trigger.
Detective Rapoone replied by reiterating that
he himself did not pull the trigger.
[131]
Detective Rapoone was asked how far the
crowd was from the shooting. He estimated it as five metres. He also
stated that there were
many people in the street.
[132]
When he was asked where Constable Segage
was, Detective Rapoone indicated that he was with the suspect. The
plaintiff’s counsel
confronted Detective Rapoone with Constable
Segage’s version that he got out of the vehicle to protect the
suspect’s
door. Detective Rapoone replied that he would not
know.
[133]
Detective Rapoone gave evidence that he
identified the plaintiff by his height and stated that it is not the
first time that the
plaintiff was arrested as there was previously a
case against him for domestic violence.
[134]
Detective Rapoone admitted that the bullet
that hit the plaintiff emanated from his firearm. He however denied
that he was the one
who had fired the shot. It was also put to him
that he intentionally shot the plaintiff. Detective Rapoone replied
by stating that
he did not aim at the plaintiff or point a firearm at
him.
[135]
It was put to Detective Rapoone that he
shot the plaintiff by mistake. Detective Rapoone denied this. It was
also put to him that
Detective Rapoone intentionally drew his
firearm. Detective Rapoone admitted this. Thereafter Detective
Rapoone was asked whether
he drew the firearm to use it. Detective
Rapoone said no.
[136]
The plaintiff’s counsel asked
Detective Rapoone whether he appreciated that someone could get
injured, to which Detective
Rapoone replied “
no”
.
[137]
Detective Rapoone was confronted with a
statement that he made shortly after the incident. The only
potentially material evidence
that was elicited from this line of
cross-examination is that in his statement he recorded that he was
stabbed twice but at trial
he gave evidence of only one stabbing.
Detective Rapoone replied that he forgot.
[138]
When Detective Rapoone was asked that if he
did pull the trigger whether it was out of self-defence or necessity.
Detective Rapoone
replied that he did not, referring to the pulling
of the trigger.
Re-examination
[139]
During re-examination a number of
questions, albeit leading (but not objected to) were put to Detective
Rapoone. He was asked whether
he was scared, to which he replied
“
yes”
.
He was asked whether he had reasonable grounds for thinking that his
life was in danger, to which he replied “
yes”
.
[140]
Detective Rapoone was also asked whether he
had reasonable grounds to believe that he could be killed, to which
Detective Rapoone
replied “
yes,
shortly after I was stabbed”
. He
gave evidence that he had no reason to believe that his life was in
danger before then, as he thought that once they had traced
the
suspect the community would be satisfied.
[141]
Detective Rapoone was asked whether he
believed that the pulling out of his firearm was less dangerous. He
replied that the crowd
was angry and that he could see that his life
was in danger. He was also asked whether he thought that the cocked
firearm at a
90-degree angle would avert the situation. Detective
Rapoone replied that he did and that it was done just to frighten the
group.
[142]
Lastly, Detective Rapoone was asked whether
it was necessary to protect Constable Segage and the suspect and to
protect State property.
Detective Rapoone replied that it was.
[143]
I asked Detective Rapoone why the doors of
the vehicle were not locked from the outside. He stated that it was a
new vehicle that
he drove for the first time that morning and that he
was therefore not yet familiar with all of the features of the
vehicle. His
priority was to prevent the suspect from getting out of
the vehicle and hence his focus was rather on the inside locks.
[144]
The defendant thereafter closed his case.
[145]
Counsel agreed to submit written closing
argument, for which I am grateful.
ANALYSIS OF THE
EVIDENCE
[146]
There can be no question that the plaintiff
was injured by a bullet fired from Detective Rapoone’s firearm.
This is plain
from the evidence, not least of which is the fact that
only one shot was fired and only Detective Rapoone’s firearm
was drawn
at the time.
[147]
However, even if this is accepted as a
proven fact, it is not sufficient for plaintiff to meet the onus
resting on him. The key
issues remain whether the evidence
established that on the probabilities, that Detective Rapoone fired
the shot, and whether the
drawing and cocking of the firearm and the
shot resulting therefrom, were justified under the circumstances.
[148]
Various inconsistencies and improbabilities
exist in the plaintiff’s testimony. In this regard there are a
number of aspects
of the plaintiff’s evidence that warrant
specific attention.
Inconsistencies
[149]
The plaintiff gave evidence under oath that
after Detective Rapoone slapped Sphamandla, the plaintiff approached
him with the purpose
of telling the police officer not to hit members
of the community and to leave the scene with the culprit. Before the
police officer
could assault someone else, the plaintiff told him to
leave, whereupon the police officer opened the door and climbed back
into
the vehicle. Thereafter, the plaintiff left the crowd and
followed the police to the scene where the body of the deceased was
lying.
[150]
The allegations in the particulars of claim
can however not be reconciled with the plaintiff’s oral
testimony. At paragraphs
4.6 and 4.7 of the amended particulars of
claim, the plaintiff avers that after he saw the police officer
slapping Sphamandla,
the plaintiff approached the police officer, who
had already drawn his firearm from his holster and was holding it to
the side.
No mention was made during the plaintiff’s oral
evidence of the fact that Detective Rapoone had already drawn his
firearm
when the plaintiff approached him after the assault on
Sphamandla. In fact, it was the plaintiff’s oral evidence that
he
only heard a shot fired. Only when he was directly asked by
counsel to state whether he saw the shot being fired, did plaintiff

state that he saw Detective Rapoone running away with a firearm.
[151]
At paragraph 4.8 of the amended particulars
of claim the plaintiff avers that he heard a gunshot which he assumed
was in the aim
of disbursing the members of the public. This
statement is wholly inconsistent with the plaintiff’s oral
evidence that when
he walked away and followed the police to the
crime scene, he heard people saying that the police officer was going
to shoot him
and that shortly thereafter he heard a shot being fired.
The plaintiff also stated when specifically asked whether the gunshot
was fired with a view of dispersing members of the community, that he
did not know and that he only heard the gunshot. Moreover,
he gave
evidence that he did not see the crowd running away.
[152]
At paragraph 4.9 of the particulars of
claim the plaintiff avers that the force of the bullet caused him to
hit the ground, lying
on his back. No such evidence was led at the
trial. In fact, it is the plaintiff’s evidence that he thought
that he was hit
by a stone, and that after he noticed the blood
running down his shoulder, he decided to walk home. In fact, during
re examination
the plaintiff emphatically stated that he did not
fall down on the ground, but that he walked.
[153]
Under cross-examination, when confronted
with the inconsistencies in his particulars of claim, the plaintiff
testified that the
version contained in the particulars of claim was
incorrect.
[154]
It was also put to Detective Rapoone during
cross-examination that he intentionally shot the plaintiff, which was
neither the oral
evidence of the plaintiff nor the case made out on
the pleadings.
[155]
It
is a well-known and long-established principle that it is the
pleadings that define the issues so as to enable the other party
to
know what case he or she is required to meet
[17]
and parties are therefore limited to their pleadings. A party can
most certainly not direct the attention of the other party to
one
issue on the pleadings and then attempt to canvass another at
trial.
[18]
A Court is required
to determine what the real and substantial issues are between the
parties and decide the case on these issues.
[19]
[156]
When applying these principles to the
present case, it is clear that there are material inconsistencies
between plaintiff’s
evidence at trial and the factual
allegations contained in his particulars of claim.
Improbabilities
[157]
The plaintiff was a single witness.
[158]
In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell and Cie SA and
Others
[20]
it was held that when a Court is faced with two conflicting versions,
the Court must make findings on the following: -
“
(a)
the credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities.
As to (a), the Court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as: -
(i)
the witness’ candour and demeanour in the witness box,
(ii)
his bias, latent and blatant,
(iii)
internal contradictions in his evidence,
(iv)
external contradictions with what was pleaded or put on his behalf,
or with established fact or with
his own extra curial statements or
actions,
(v)
the probability or improbability of particular aspects of his
version,
(vi)
the calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events.
As to (b), a witness’
reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) and (v) above, on (i)
the opportunities he had to
experience or observe the event in question and (i) the quality,
integrity and independence of his
recall thereof.
As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each
of the disputed
issues. In the light of its assessment of (a), (b) and (c), the Court
will then, as a final step, determine whether
the party burdened with
the onus of proof has succeeded in discharging it. The hard case
which will doubtless be the rare one,
occurs when the Court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in
another. The more convincing the former,
the less convincing will be the latter. But when all factors are
equipoised, probabilities
prevail.”
[159]
In
Barring
Eiendomme Bpk v Roux
[21]
the SCA adopted the following passages in
National
Employers General Insurance Co Ltd v Jagers
:
[22]
-
“…
Where
there are two mutually destructive stories, [the plaintiff] can only
succeed if he satisfied the court on a preponderance
of probabilities
that his version is true and accurate and therefore acceptable, and
that the other version advanced by the defendant
is therefore false
and mistaken and falls to be rejected. In deciding whether that
evidence is true or not, the court will weigh
up and test the
plaintiff’s allegations against the general probabilities. The
estimate of the credibility of a witness will
therefore be
inextricably bound up by the consideration of the probabilities of
the case and, if the balance of probabilities favours
the plaintiff,
then the Court will accept his version as being probably true. If
however, the probabilities are evenly balanced
in the sense that they
do not favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can
only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant’s version
is false.
This view seems to be
in general accordance with the views expressed by Coetzee J in
Koster Koöperatiewe Landboumaatskappy
Bpk v Suid-Afrikaanse
Spoorweë en Hawens
1974 (4) SA 420
(W) and African Eagle
Assurance Co Ltd v Cainer
1980 (2) SA 324.
I would merely stress
however that when in such circumstances one talks about a plaintiff
having discharged the onus which rested
upon him on a balance of
probabilities, one really means that the Court is satisfied on a
balance of probabilities that he was
telling the truth and that his
version was therefore acceptable. It does not seem to me to be
desirable for a Court first to consider
the question of the
credibility of the witnesses the trial judge did in the present case,
and then, having concluded that enquiry,
to consider the
probabilities of the case, as though the two aspects constitute
separate fields of the enquiry. In fact, as I have
pointed out, it is
only where a consideration of the probabilities fails to indicate
where the truth probably lies, that recourse
is had to an estimate of
relative credibility apart from the probabilities.”
[160]
During the plaintiff’s evidence at
trial, he testified that he did not find one drop of blood on or
around the deceased where
he was lying inside the tavern. In fact,
his evidence is that even after he removed the jacket, he only
noticed a small hole below
the plaintiff’s left shoulder bone.
Even during cross-examination, the plaintiff was adamant that there
was no blood. In
stark contrast, both witnesses for the defendant
gave individual recollections of the deceased lying in a pool of
blood. It is
highly improbable that not one drop of blood would have
been visible either on the body itself or within its immediate
vicinity.
[161]
The plaintiff testified that about 100
members of the community were angry and revengeful and demanded the
handing over of the suspect
so that they could kill him. The
plaintiff gave evidence how they pulled at the doors and demanded
vigilante justice. Yet, the
plaintiff, a relative of the deceased,
attempted to persuade the Court that he was neither angry, nor
revengeful. Even after his
cousin, Sphamandla, was slapped by the
police, it is the plaintiff’s evidence that he remained calm
and requested the police
to leave. If this is true, there would
certainly have been no reason for a police officer to shoot him as
the plaintiff alleged
in oral evidence.
[162]
Also, on the plaintiff’s version the
police failed to secure the murder scene which, if not done urgently,
could lead to the
destruction of critical forensic evidence, the
consequence of which would be an unsuccessful prosecution and a
murder suspect walking
free. Under these circumstances I find it
highly improbable that the plaintiff would remain calm and unaffected
by the alleged
dilatory conduct on the part of the police.
[163]
In addition, Constable Segage’s
evidence that the scene was secured when first they arrived, was not
challenged. It follows
that there was no reason for the plaintiff to
return to the tavern shortly before the shooting. Also, it is the
evidence of Detective
Rapoone that no one was allowed back into the
tavern. Two police officers, Thibela and Malatjie were guarding the
scene. This evidence
was not challenged either. I therefore find the
plaintiff’s evidence that he left the crowd to assist the
police officers
to secure the scene, improbable. The ineluctable
conclusion is that the plaintiff did not leave the crowd, but
remained until he
was shot.
[164]
The plaintiff gave evidence that after he
spoke to Detective Rapoone and followed the police to the murder
scene, Detective Rapoone
climbed back into the police vehicle.
However, the plaintiff gave evidence that he saw Detective Rapoone
running away from the
crowd holding his drawn firearm. Either
Detective Rapoone did not climb back into the vehicle, or he did not
run away from the
crowd with a drawn firearm. Both scenarios cannot
present at the same time.
[165]
If Detective Rapoone climbed back into the
vehicle, he certainly could not have shot the plaintiff. If he was
running away from
the crowd with a drawn firearm, it does not explain
why the crowd would shout at the plaintiff that the police officer
was going
to shoot him. Such a scenario would in any event be at odds
with the evidence of both Detective Rapoone and Constable Segage. Not

only is the plaintiff’s version in respect of both scenarios
improbable, but his version that he walked away from the police

vehicle before he was shot, becomes highly questionable.
[166]
The plaintiff gave evidence that after he
was hit by what he thought was a stone, he noticed blood running down
his shoulder, cried
and walked home. He then called for a taxi which
ferried him to the local clinic, whereafter the ambulance collected
him from the
clinic and took him to the Natalspruit Vosloorus
Hospital.
[167]
The
plaintiff alleges in his particulars of claim
[23]
that he sustained severe injuries to his face and suffered permanent
disfigurement. The plaintiff also testified that he was in
hospital
for two weeks and that he was unable to eat as a result of the
injuries that he sustained. In his particulars of claim
[24]
the plaintiff alleges that the bullet hit him from the back and
entered his neck, travelled through his jaw and proceeded out his

chin. These injuries, on the plaintiff’s own version, were
severe and must have caused unbearable pain and bleeding. It is

therefore highly improbable under the circumstances that the
plaintiff would have been in a state to walk home, to call for a
taxi, to first attend a clinic and to thereafter only be referred to
a hospital. In addition, there is now way that the same ambulance

that arrived at the scene would know that it would find the plaintiff
at the clinic especially if on the plaintiff’s version
he told
no one where he was going when he left the scene. This too renders
the plaintiff’s version improbable.
[168]
I find it even more curious that the
plaintiff on his version did not remain at the scene where he was
shot by a police officer
in the presence of various eye-witnesses and
instead, chose to leave the scene where he was assaulted and to walk
home. This behaviour
is at odds with an innocent victim and bystander
who alleges that he was unlawfully assaulted by the police. I
therefore find the
version of the plaintiff on this issue equally
improbable.
[169]
The plaintiff gave evidence that his
cousin, Sphamandla, was assaulted by Detective Rapoone. He denies
that he assisted Sphamandla
in assaulting and restraining Detective
Rapoone. The plaintiff also testified that he knows Sphamandla very
well. The plaintiff
testified that when he walked away from the group
gathered at the police vehicle, Sphamandla remained behind.
Sphamandla would
therefore have been within close proximity of
Detective Rapoone and would have been in the ideal position to verify
how the shooting
happened. Sphamandla would be a key witness to
refute Detective Rapoone’s version that the plaintiff stabbed
him with a knife
and to confirm the plaintiff’s version that he
was not one of the aggressors. Yet, the plaintiff elected not to call
Sphamandla
as a witness. This in my view adds insult to injury to the
plaintiff’s case.
[170]
It would have been a simple matter to call
Sphamandla to corroborate the plaintiff’s version and in the
absence of Sphamandla’s
evidence, the plaintiff remains a
single witness. The election not to call Sphamandla can in my view
only mean one thing and that
is that the evidence of Sphamandla would
have supported a version but not necessarily that of the plaintiff.
[171]
When considering the various
inconsistencies and improbabilities in the evidence of the plaintiff,
both when compared to the testimony
of the two police officers as
well as the internal inconsistencies in the testimony of the
plaintiff himself when compared to the
allegations contained in the
plaintiff’s particulars of claim, I cannot accept the
plaintiff’s evidence as true and
accurate.
Defendant’s
witnesses
[172]
The defendant’s evidence was not
seriously challenged on material aspects as already indicated in the
summary of evidence.
[173]
The evidence of the defence was cogent and
there were no material contradictions. My impression was that both
witnesses tried as
best they could to give a true and accurate
account of what happened on the day. I find them both to be good
witnesses and I accept
their respective versions as true.
LEGAL DUTY
[174]
In order to succeed
with his claim, the plaintiff has to establish that there was a
legal duty on the defendant's
servants (the police), to protect
the defendant as a member of the public within the context of this
case. If that duty is
established, and the police are found to
have negligently breached that duty, the next enquiry is whether
such negligence
caused the plaintiff to suffer harm, which
was reasonably foreseeable or not too remote. If all these are
established, the
police's omission would be wrongful and attract
liability.
[175]
There
is a constitutional and public law duty on the State to protect its
citizens and the State is liable for the failure to perform
that
duty, unless it can be shown that there is compelling reason to
deviate from that principle.
[25]
[176]
This
duty is often referred to as 'the duty of care' (which is a concept
of English law). I will therefore also use the term guardedly
as
Makgoka J cautioned,
[26]
bearing in mind the remarks of Harms JA
[27]
(as
he then was) that to formulate the issue in terms of the concept of
'duty of care' may lead one astray. The concept of
'duty of care'
comprises two discrete enquiries. Milner
Negligence
in Modern Law
(1967)
at p.230 states:
“
The
duty of care concept in negligence operates at two levels. At one
level it is fact-based, at another it is policy-based. The
fact-based
duty of care forms part of the enquiry whether the defendant's
behaviour was negligent in the circumstances. The whole
enquiry is
governed by the foreseeability test, and 'duty of care' in this sense
is a convenient but dispensable concept. On the
other hand, the
policy-based or notional duty of care is an organic part of the tort;
it is basic to the development and growth
of negligence and
determines its scope, that is to say, the range of relationships and
interests protected by it. Here is a concept
entirely divorced from
foreseeability and governed by the policy of the law. 'Duty' in this
sense is logically antecedent to 'duty'
in the fact-determined sense.
Until the law acknowledges that a particular interest or relationship
is capable in principle of
supporting a negligence claim, enquiries
as to what was reasonably foreseeable are premature."
[177]
In
Knop
v Johannesburg City Council
1995
(2) SA 1
(A)
Botha
JA, at 27G-I, citing with approval the passage in Milner, said:
"The existence of
the legal duty to prevent loss is a conclusion of law depending on a
consideration of all the circumstances
of the case. The general
nature of the enquiry is stated in the well-known passage in
Fleming The Law of Torts 4
th
ed
at 136, quoted in the Administrateur, Natal case supra
at 833 in fine 834A:
'In short, recognition
of a duty of care is the outcome of a value judgment, that the
plaintiff's invaded interest is deemed worthy
of legal protection
against negligent interference by conduct of the kind alleged against
the defendant. In the decision whether
or not there is a duty, many
factors interplay; the hand of history, our ideas of morals and
justice, the convenience of administering
the rule and our social
ideas as to where the loss should fall. Hence, the incidence and
extent of duties are liable to adjustment
in the light of the
constant shifts and changes in community attitudes.'
The
enquiry encompasses the application of the general criterion of
reasonableness, having regard to the legal convictions of the

community as assessed by the Court..."
[178]
Whether
to recognise a duty in a given situation as part of the enquiry, has
been approved by the SCA
[28]
and was also relied on by the Full Bench of the Gauteng Division in
the decision in
Bowley
Steels (Pty) Limited v Dalian Engineering (Pty) Limited
.
[29]
[179]
In
the context of delictual damages, the test for determining
wrongfulness or otherwise of an omission to act is as restated in
Van
Eeden v Minister of Safety and Security (Women's Legal
Centre Trust, as Amicus Curiae)
2003
(1) SA 389 (SCA)
:
'Our common law
employs the element of wrongfulness (in addition to the requirements
of fault, causation and harm) to determine
liability for delictual
damages caused by an omission. The appropriate test for determining
wrongfulness has been settled in a
long line of decisions of this
Court. An omission is wrongful if the defendant is under a legal duty
to act positively to prevent
the harm suffered by the plaintiff. The
test is one of reasonableness. A defendant is under a legal duty to
act positively to prevent
harm to the plaintiff if it is reasonable
to expect of the defendant to have taken positive measures to prevent
the harm. The Court
determines whether it is reasonable to have
expected of the defendant to have done so by making a value judgment
based, inter alia, upon
its perception of the legal
convictions of the community and in considerations of policy. The
question whether a legal duty exists
in a particular case is thus a
conclusion of law depending on a consideration of all the
circumstances of the case and on the interplay
of the many factors
which have to be considered.'
[180]
Within the context of how the events
occurred on that fateful day, it was the police officers, and not the
plaintiff, who were the
victims of an attack. Given the evidence, I
am not persuaded that the plaintiff was as innocent and uninvolved as
he professes.
In my view, the community would expect the police to
protect members of the public who are law-abiding innocent
bystanders, not
aggressors. However, even if the police owed a legal
duty to their aggressors simply because they are members of the
public, a
deviation from the duty was justified in the particular
circumstances of this case.
[181]
Accordingly, I find that the plaintiff has
failed to establish a legal duty within the context of the facts of
this case.
CAUSATION
[182]
The fact that the plaintiff was hit and
injured by a bullet discharged from the firearm of a police officer
cannot be disputed.
The question therefore still remains
whether or not the return to the scene or the drawing and cocking of
the firearm constitute
negligent action on the part of the defendant.
[183]
Critically, it is not the plaintiff’s
case on the pleadings that the police officers were negligent in
returning to the scene
and not going to the police station to process
the suspect immediately after he was apprehended. This version was
only put to the
defendant during cross-examination. As already
stated, a plaintiff is bound to the case he has pleaded. However, a
court is expected
to identify the real issues between the parties and
assuming that this is a critical issue, I cannot find on the evidence
before
me that the police officers were negligent in returning to the
scene.
[184]
All that was suggested by the plaintiff is
that the police officers did not abide by the standing order and that
it was not necessary
to return to the scene with the suspect.
However, both police officers provided a plausible explanation for
their return. Within
hours after a murder had been committed, they
apprehended the suspect who could positively identify the custodian
of the murder
weapon and the weapon itself at the scene of the crime.
Without the suspect, a positive identification would have been
impossible.
I therefore find the action by the police by returning to
the scene in no way wrongful.
[185]
Moreover,
Detective Rapoone testified that he thought that the community would
be happy if they saw that the suspect had been apprehended.
I cannot
fault his reason in this regard either and consider it to be
reasonable. Surely, the community would expect the police
to
apprehend a suspect and to secure the murder weapon at the earliest
possible opportunity. I find my support in
Minister
of Safety and Security v Duivenboden
.
[30]
The SCA held that determining wrongfulness in these matters involves
the balancing of identifiable norms, which include constitutional

norms. An important constitutional norm that will factor in cases
such as these is the norm of accountability.
[31]
The Constitutional Court has approved this view.
[32]
[186]
On the issue of drawing and cocking the
firearm and the ultimate discharge of the bullet that hit and injured
the plaintiff, the
principle of causation and the presence of a
wrongful act comes into play.
[187]
It
is settled that the establishment of negligence is not the end of the
enquiry, and liability does not necessarily follow for
the damages
suffered. For liability to arise there must be a causal nexus between
such negligence and the plaintiff's damages.
In the leading case
of
Minister
of Police v Skosana
[33]
at
34F-H and 35A-D the SCA dealt with this principle as follows:
"Causation
in the law of delict gives rise to two rather distinct problems. The
first is a factual one and relates to the question
whether the
negligent act or omission in question caused or materially
contributed to ... the harm giving rise to the claim. If
it did not,
then no legal liability can arise and cadit quaestio. If
it did, then the second problem becomes relevant,
viz whether the
negligent act or omission is linked to the harm sufficient closely or
directly for legal liability to ensue or
whether, as it is said, the
harm is too remote. This is basically a juridical problem in which
considerations of legal policy may
play a part."
[34]
[188]
In
International
Shipping Co. (Pty) Ltd v Bentley
[35]
Corbett
CJ at 700E-H restated the general principles of causation as follows:
"As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first
is a factual one
and relates to the question as to whether the defendant's
wrongful
act
was a cause of the
plaintiff's loss. This has been referred to as "factual
causation". The enquiry as to factual causation
is generally
conducted by applying the so-called 'but-for' test, which is designed
to determine whether a postulated cause can
be identified as a causa
sine qua non of the loss in question. In order to apply this
test one must make a hypothetical
enquiry as to what probably would
have happened but for the
wrongful
conduct of the defendant
.
This enquiry may involve the mental elimination of the wrongful
conduct and the substitution of a hypothetical course of lawful

conduct and the posing of the question as to whether upon such an
hypothesis plaintiff's loss would have ensued or not. If it would
in
any event have ensued, then the wrongful conduct was not a cause of
the plaintiff's loss; aliter, if it would not
so have
ensued. If the wrongful act is shown in this was not to be a causa
sine qua non of the loss suffered, then no
legal liability can
arise. On the other hand, demonstration that the wrongful act was
a causa sine qua non of the loss
does not necessarily
result in legal liability. The second enquiry then arises, viz
whether the wrongful act is linked sufficiently
close or directly to
the loss for legal liability to ensue or whether, as it is said, the
loss is too remote." (
emphasis
added)
[189]
Therefore,
in determining the presence of legal causation in this case, the
question is whether the drawing and cocking of the firearm
was linked
sufficiently closely or directly to the loss suffered by the
plaintiff for legal liability to arise, or whether the
loss is too
remote. The test applied in such an enquiry is trite and settled: it
is a flexible one in which factors such as reasonable
foreseeability,
directness, the absence or presence of a
novus
actus interveniens,
legal
policy, reasonability, fairness and justice all come into
consideration.
[36]
[190]
Turning to the facts of this case, the
plaintiff himself conceded in evidence that the crowd was revengeful
and angry. It is common
cause that the crowd consisted of
approximately 80 members of the community. It is also common cause
that the crowd demanded to
know who killed the deceased and wanted
vigilante justice. It is also not disputed that the crowd attempted
to prevent Detective
Rapoone from leaving the scene with the suspect.
In this regard, the evidence speaks for itself – the opening of
the vehicle
door, the standing of crowd members behind the vehicle,
and the crowd members surrounding the vehicle.
[191]
It was even put by the plaintiff’s
counsel to Constable Segage that the crowd was provoked by the
assault on Sphamandla. The
very fact that Constable Segage found it
necessary to assist Detective Rapoone in protecting the suspect is
indicative of the fact
that the crowd was out of control and
Detective Rapoone was in no position to manage them on his own.
[192]
It is furthermore not disputed that the
crowd smelled of alcohol, which is highly probable given the fact
that the incident occurred
at a tavern.
[193]
Detective Rapoone first warned Sphamandla
when he opened the door of the suspect and thereafter slapped him
when he did it for the
second time. Detective Rapoone explained to
Sphamandla and to the crowd that it was the intention to take the
suspect to the police
station. If the crowd was reasonable and sober,
one would have expected them to accept the explanation and to allow
the police
to do their work. However, this was not what Detective
Rapoone and Constable Segage was confronted with.
[194]
It was also Detective Rapoone’s
uncontested evidence that he had no intention to shoot anyone and
that the reason for drawing
his firearm and cocking it was to
frighten the crowd and to force them to move away. Detective Rapoone
pointed the firearm to the
ground at a 90 degree angle. It was
not his evidence, nor was it suggested that firing warning shots in
the air was a reasonable
alternative. In fact, no other reasonable
alternatives were suggested to Detective Rapoone during
cross-examination.
[195]
Considering all the circumstances of this
case, I am not persuaded that the plaintiff has proven wrongfulness
on the part of the
defendant as there was no other positive measures
that Detective Rapoone could have taken to prevent the harm suffered
by the plaintiff.
FORESEEABILITY
[196]
When
it comes to the issue of foreseeability, it is to be borne in mind
when considering this aspect that the precise or exact manner
in
which harm occurs need not be foreseeable: only the general manner of
its occurrence. In
Sea Harvest
Corporation (Pty) Ltd and Another v Duncan Dock Storage (Pty) and
Another
[37]
,
Scott JA stated the following at 840 D-E:
"The problem is
always to decide where to draw the line, particularly in those cases
where the result is readily foreseeable
but not the cause. This is
more likely to arise in situations where, for example, one is dealing
with a genus of potential
danger which is extensive, such
as fire, or where it is common cause there is another
person whose wrongdoing is
more obvious than that of the chosen
defendant. It is here that a degree of flexibility is called
for. Just where the inquiry
as to culpability ends and the inquiry as
to remoteness (or legal causation) begins — both of which may
involve the question
of foreseeability — must therefore to some
extent depend on the circumstances.... In many cases the facts will
be such as
to render the distinction clear, but not always. Too rigid
an approach in borderline cases could result in attributing
culpability
to conduct which has sometimes been called negligence "in
the air".'
[197]
It
was emphasised in
Kruger
v Coetzee
[38]
that the reasonable foreseeability of harm, by itself, does not
require action to be taken to avert it. Action to avert reasonably

foreseeable harm is required only if, in the particular
circumstances, the person concerned ought reasonably to have acted.
[198]
The plaintiff pleaded that the defendant
could have foreseen that firing gunshots in the presence of members
of the public will
endanger the members of the public’s lives,
specifically the plaintiff. Curiously, the evidence does support the
allegation,
but not in the manner plaintiff had hoped for.
[199]
Ironically, Detective Rapoone did foresee
the danger in firing a shot amongst members of a crowd in such close
proximity to him.
This is borne out of the fact that Detective
Rapoone’s evidence is that he did not have any intention to
fire his gun.
He merely wanted to scare away the attacking crowd by
drawing his firearm and cocking it. He also pointed the firearm
towards the
ground at a 90-degree angle. He did not fire any shots in
the air, nor did he at any stage warn the crowd that he was going to
shoot.
[200]
In any event, even if it was suggested to
Detective Rapoone that he ought to have fired a warning shot, the
fact remains that it
was not his intention to shoot and in these
urgent circumstances and given his proximity in relation to the
crowd, he was justified
in giving no warning of any kind. This all
points to the fact that Detective Rapoone did consider the
foreseeability of harm and
therefore applied the least dangerous
means of warding off the crowd.
SELF-DEFENCE
[201]
Even if I am wrong in finding that there
was no wrongful act, the evidence before me confirms that the actions
of Detective Rapoone
were justified. In this regard, the defendant
bore the onus to prove self-defence, alternatively necessity to
justify the drawing
and cocking of the firearm and the resultant
discharge of the bullet.
[202]
The
test whether a person acted in self-defence is an objective one,
which means that when the Court comes to decide whether there
was a
necessity to act in self-defence, it must place itself in the
position of the person claiming to have acted in self-defence
and
consider all the surrounding factors operating at the time he
acted.
[39]
The legal position
on this issue was succinctly set out in
Kgaleng
v Minister of Safety and Security and Another
[40]
as follows:-
“…
The
test is objective. The legal position is thus summarised by Boberg
The Law of Delict, vol 1 (1984) at 788:
‘
The
enquiry is factual, and – since the issue is wrongfulness, not
fault – the test is objective. Thus the question
is not whether
the defendant believed his conduct to be justified, but whether the
law considers it so. This, in turn, depends
on whether it was a
reasonable response for the defendant to make to the situation,
judged objectively and even with hindsight
– although not
without regard to the individual defendant’s resources, motives
and circumstances, for no test can be
applied in a vacuum. If the
test is satisfied the defendant escapes liability because he acted
lawfully in a situation of necessity
or defence. If the test is not
satisfied the defendant cannot invoke necessity or defence to justify
his conduct, which therefore
remains wrongful’.”
[203]
In
the matter of
Mugwena
and Another v Minister of Safety and Security
[41]
the following
dictum
appears: -
“
[21]
Self-defence, which is treated in our law as a species of
private defence, is recognised by all legal systems. Given
the
inestimable value that attaches to human life, there are strict
limits to the taking of life and the law insists upon these
limits
being adhered to.
‘
Self-defence
takes place at the time of the threat to the victim’s life, at
the moment of the emergency which gave rise to
the necessity and,
traditionally, under circumstances in which no less severe
alternative is readily available to the potential
victim.’
(Per Chaskalson P
in S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) paragraph 138).”
[204]
In
R
v Attwood
[42]
the Court stated as follows:-
“
Homicide
in self-defence is justified if the person concerned … had
been unlawfully attacked and had reasonable grounds for
thinking that
he was in danger of death or serious injury, that the means he used
were not excessive in relation to the danger,
and that the means he
used were the only or least dangerous whereby he could have avoided
the danger.”
[205]
The defendant can only escape liability for
harm caused by him if it is proven that there were reasonable grounds
for thinking that,
because of the crowd’s behaviour, there was
such a danger (commenced or imminent), injury to persons or damage to
or destruction
to property as to require police action, and in
addition, the means used in an endeavour to restore order and avert
such danger
were not excessive having regard to all the
circumstances.
[206]
It is apposite to note in this regard that
whilst the Courts will be astute to protect the public from
high-handed action on the
part of the police: -
“
The
very objectivity of the test, however demands that when the Court
comes to decide whether there was a necessity to act in self-defence

it must place itself in the position of the person claiming to have
acted in self-defence and consider all the surrounding factors

operating on his mind at the time he acted. The Court must be careful
to avoid the role of the armchair critic, after the event,
weighing
the matter in the scheduled security of the courtroom
.
The
law requires of the police no higher and no lesser standard of duty
than is required of any member of the public placed in a
similar
situation, viz, that standard to which the ordinary and reasonable
man in the street is required to conform.
”
[43]
[207]
The evidence presented to Court
demonstrates that the police acted in pursuance of their duty to
protect themselves and the suspect
from violent action to uphold
justice by not allowing the community to take the law into their own
hands and defend themselves
from the threat of a revengeful crowd.
The evidence also indicates that the actions of the police were
proportionate to the danger
posed by the crowd to the suspect and to
the police. I have already dealt in detail with the evidence
adduced in support.
NECESSITY
[208]
Professor
Jonathan Burchell
[44]
suggests
that for an act to be justified on the ground of necessity the
following requirements must be satisfied:
“
(a) A
legal interest of the defendant must have been endangered, (b) by
a threat which had commenced or was imminent
but which was (c) not
caused by the defendant's fault, and, in addition, it must have
been (d)necessary for the
defendant to avert the danger,
and (e) the means used for this purpose must have been
reasonable in the circumstances.
”
[209]
Necessity,
unlike self-defense, does not require the defendant's action to have
been directed at the perpetrator of an unlawful
attack. It is invoked
where the action, or conduct, of the defendant was 'directed against
an innocent person for the purpose of
protecting an interest of the
actor or a third party (including the innocent person) against a
dangerous situation.
[45]
[210]
In my view the defendant also established
the pleaded alternative defence. Detective Rapoone’s life was
in danger and he knew,
reasonably so, that it was. He was acutely
aware of his duty to protect his colleague, the suspect and himself
on the one hand
and to prevent unnecessary harm to members of the
public on the other. However, he was trapped and his only means of
defence was
his firearm. In the circumstances, I find that Detective
Rapoone acted out of necessity and acted reasonably.
[211]
Therefore, the most probable explanation
for the plaintiff’s injury on the evidence is that either he
was part of the unruly
crowd or he was unfortunately hit by a bullet
that ricocheted during the scuffle between Detective Rapoone and
Sphamandla.
CONCLUSION
[212]
Although
due regard must be had to 'the right to life' as provided for in
section 11 of the Constitution, it relates to the innocent
victim’s
right to life. The Constitutional Court has also stated that “
(t)o
deny the innocent person the right to act in self-defence would be to
deny to that individual his or her right to life”
and “
Self-defence
takes place at the time of the threat to the victim's life, at the
moment of the emergency which gave rise to the necessity
and,
traditionally, under circumstances in which no less severe
alternative is readily available to the potential victim
”.
[46]
Of course, who the innocent person is, depends on the facts.
[213]
The
same is true where an innocent person acts in circumstances of
necessity. Thus, where a defendant is able to show that
his
conduct in causing the death or injury to an innocent person was
objectively reasonable in the particular circumstances, he
will be
exonerated. In determining whether the conduct of the defendant was
reasonable a court will consider questions of proportionality.
As was
said in
Crown
Chickens
, “
the
greater the harm that was threatened, and the fewer the options
available to prevent it, the greater the risk that a reasonable

person would be justified in taking, and vice versa”
.
[47]
[214]
In view of the circumstances, I am
satisfied that the defendant has demonstrated that the police
officer’s conduct under the
circumstances and hence the injury
resulting therefrom was justified and hence was not wrongful or
unlawful.
[215]
I therefore find that the plaintiff has
failed to establish that he was injured as a result of an unlawful
and wrongful assault
by a police officer.
ORDER
[216]
I make the following order: -
[a]  The plaintiff’s
claim is dismissed;
[b]  The plaintiff
is to pay the defendant’s costs.
F.BEZUIDENHOUT
ACTING JUDGE OF
THE HIGH COURT
Date
of Hearing:
25 and 26 August 2020
Heads
of Argument:
4 September 2020
APPEARANCES:
On
behalf of plaintiff:
Instructed
By:
Adv
T Moloi
Cell:
076 318 4344
Email:
moloi@rsabar.com
T
Matubatuba Attorneys Inc
Tel:
011 825 1161
E-mail:
tsepiso@matubatubattorneys.co.za
On
behalf of defendant:
Instructed
By:
Adv
HM Mbatha
Cell:
082 422 4086
Email:
hmbatha01@gmail.com
The
State Attorneys
Tel:
011 330 7674
E-mail:
tmpulo@justice.gov.za
[1]
Pleadings bundle (section A): Particulars of Claim: par. 5.1; p. 9
[2]
Pleadings bundle (section A): Particulars of Claim: par. 5; p. 9;
Defendant’s Plea: par 4; p. 20
[3]
Pleadings bundle (section A): Particulars of Claim: par. 5.3; p. 10
[4]
Pleadings bundle (section A): Par. 5.1; p. 9
[5]
Should read “duty”
[6]
Robinson
v Randfontein Estates GM Co Ltd
1925
AD 173
at
198
[7]
Bundle Section D: Joint Practice note; p. 15
[8]
Benson
& Simpson v Robinson
1917 WLD 126.
[9]
1981
(3) SA 865
(A) 873E – 874E.
[10]
Mabaso
v Felix
(
supra
)
873F – 874B.
[11]
Wigmore
Evidence
,
3
rd
edition, vol IX, paragraph 2486, cited at 873C-D.
[12]
I interchangeably use “Mawande” and the “deceased”
to refer to the same person within the appropriate
context.
[13]
Pleadings Bundle Section A:
Particulars of claim: par. 4.1; p.7
[14]
The plaintiff described Sphamandla as the son of the plaintiff’s
uncle.
[15]
Pleadings bundle (section A), pp 24 to 26.
[16]
Pleadings
bundle (section A), particulars of claim, paragraph 4.8, p 9.
[17]
Rule
18(4) of the Uniform Rules of Court;
Benson
& Simpson v Robinson
1917 WLD 126
; Erasmus:
Superior
Court Practice
,
B1-129, note 9.
[18]
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A) at 107G   H.
[19]
Robinson
v Randfontein Estates GM Co Ltd
1925 AD 173
at 198;
Shill
v Milner
1937 AD 101
at 105.
[20]
(427/01)
[2002] ZASCA 98
(6 September 2002) at paragraph [5], pp 4-5.
[21]
2001
(1) All SA 399
(SCA) at paragraph [6].
[22]
1984
(4) SA 437
(A) at 440E – 441A.
[23]
Pleadings
bundle (section A), particulars of claim, paragraph 5.3, p 10.
[24]
Pleadings
bundle (section A), plaintiff’s amended paragraphs, paragraph
5, p 31.
[25]
Minister
of Safety and Security v Carmichele
2004
(3) SA 305
(SCA)
para
43
[26]
Ramushi
v The Minister of Safety and Security
2012 JDR 1372 (GNP)
[27]
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
2006 (1) SA 461
(SCA) par 14
[28]
Mukheiber
v Raath
1999
(3) SA 1065 (SCA)
[29]
1996
(2) SA 393 (T)
at
398G-H
[30]
2002
(6) SA 431 (SCA)
paras
20 and 21
[31]
Olitziki
Property Holdings v State Tender Board and
Another
2001
(3) SA 1247 (SCA)
para
31.
[32]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
2005
(2) SA 359 (CC)
paras
73-78.
[33]
1977
(1) SA 31 (A)
[34]
See
also
Siman
& Co (Pty) Ltd v Barclays National Bank
1984
(2) SA 888
(A)
at
914C-918A;
Tuck
Commissioner for Inland Revenue
1988
(3) SA 819 (A)
at
832F-G
;
and
Silver
v Premier, Gauteng Provincial Government
1998
(4) SA 569
(W)
at
574D-G).
[35]
1990
(1) SA 680 (A)
[36]
S
v Mokgethi en Andere
1990
(1) SA 32
(A)
;
above, at 700E-701G;
Smit
v Abrahams
1994
(4) SA 1
(A)
;
Standard
Chartered Bank of Canada v Nedperm Bank
Ltd
[1994] ZASCA 146
;
1994
(4) SA 747
(A)
at
764I-J and 765A-B and
Delphisure
Insurance Brokers v Dippenaar
2010
(5) SA 499 (SCA)
para
25.
[37]
2000
(1) SA 827 (SCA)
[38]
supra
at
430F - G
[39]
Ntsomi
v Minister of Law nd Order
1990 (1) SA 512 (C).
[40]
2001
(4) SA 854
(W) at 856D - E.
[41]
(303/2003)
[2005] ZASCA 117
;
[2006] 2 All SA 126
(SCA) (29 November 2005) at
paragraph [21].
[42]
1946
AD 331
at 340.
[43]
Ntanjana
v Vorster and Minister of Justice
1950 (4) SA 398
(C) at 406 and 410; see also
Maimela
and Another v Makhado Municipality and Another
2011 (6) SA 533
(SCA) at par. 21B
[44]
Principles
of Delict
(1993)
at 75.
[45]
Maimela
and Another v Makhado Municipality and
Another
2011 (6) SA 533
(SCA) par 19; see also
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck
2007
(2) SA 118
(SCA)
para 10, quoting with approval JC van der
Walt & JR Midgley
Principles
of Delict
3
ed para 87.
[46]
S
v Makwanyane and Another
1995
(3) SA 391 (CC)
at
par 138
[47]
Crown
Chickens (Pty) Limited t/a Rocklands Poultry v Rieck
2007 (2) SA 118
(SCA) at par. 14