About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 180
|
|
Dookhi v Troskie (23114/2010) [2011] ZAGPPHC 180 (30 September 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 23114/2010
DATE:30/09/2011
In
the matter between:
SANJAY
MOHALNLAL
DOOKHI
......................................................................................
Plaintiff
and
MORNE
TROSKIE
.....................................................................................................
..
Defendant
JUDGMENT
MAKGOKA,
J:
Introduction
[1]
On the evening of 10 November 2007 the plaintiff's family and friends
were celebrating Diwali, a Hindu festival to usher in
the new season
at the end of the monsoon. As part of the celebrations, fire-crackers
are lit. An argument ensued between the defendant
and the plaintiff
about the use of the firecrackers. The end result of the argument was
that the defendant shot the plaintiff.
The plaintiff claims delictual
damages as a result of that shooting. The defendant's plea is one of
self-defence.
The
evidence
[2]
The plaintiff and the defendant testified in their respective cases.
The defendant's former wife also testified on his behalf.
The
following is a brief exposition of the totality of their evidence.
The defendant lives a street across plaintiff's house. The
day before
the incident, Friday 9 November 2007, there were complainants by some
neighbours about the noise caused by fire-crackers
discharged at the
plaintiff's house. Police intervened. On the evening of the incident,
the plaintiff, his family and friends were
continuing with the
celebration, in the process discharging fire-crackers. The defendant,
unhappy with that, went to the plaintiff's
property and confronted
the plaintiff. There was argument between them, which ended with the
defendant hitting the plaintiff with
a sjambok on the head. This is
the first encounter between the parties.
[3]
The plaintiff rushed into his house, while the defendant fled to his
house, telling his wife of a possible danger and requested
her to
call the police and the armed response company. He then took out his
own fire-arm and went outside. In the meanwhile the
plaintiff had
arrived at the defendant's property and standing outside, near or in
the vicinity of the defendant's gate. The defendant
fired several
shots, one which struck the plaintiff on his right thigh. A criminal
trial followed, in which the defendant was the
accused. It resulted
in his acquittal. The transcribed record of those proceedings is part
of the papers in this court.
Disputed
facts
[4]
Although the facts are largely common cause, two issues are in
dispute. First, it is disputed by the plaintiff that he aggressively
threatened to shoot during the eariier encounter at his property.
Second, the parties differ as to the position (outside the
defendant's
property) where the plaintiff stood when the defendant
shot him. According to the plaintiff, he stood on an elevated level
behind
the concrete wall, whereas according to the defendant, the
plaintiff was standing right in front of the gate. I can dispose of
these summarily.
[5]
With regard to the first aspect, it is clear that the plaintiff was
deeply hurt and humiliated by the defendant in hitting him
with a
sjambok, in front of his family and friends. He is a police officer.
He must have felt a deep sense of humiliation. He was
very angry-he
admitted that much in evidence. The probabilities are therefore that
when he turned to rush into his house, he did
indicate to the
defendant that he was going to shoot him. On the second aspect, the
blood trail from the plaintiff's injury suggests
that the plaintiff
was shoot while standing in front of the defendant's gate. There are
no blood spots at the area where he testified
to have been standing.
Furthermore, this was never an issue in the criminal trial, where it
was common cause that the plaintiff
was standing in front of the
defendant's gate when he was shot.
[6]
On the probabilities, I accept the defendant's version on both
aspects. Having said that, I must hasten to state that this is
not a
matter which turns so much on the credibility of the witnesses, but
on the objective facts. For what it is worth, the plaintiff
was
unsatisfactory in some aspects, for example the position he stood
when he was shot. Obviously with his version, he sought to
portray
himself as not having been in a position to shoot the defendant, as
he would have been impeded by the concrete wall. There
were
inconsistencies in his evidence in the criminal trial and in this
court. But for all that, his evidence, and in particular
his
credibility, is largely irrelevant to the determination of the crisp
question whether the defendant acted in self-defence under
the
circumstances. I do not need to accept his evidence to make that
determination.
The
law
[7]
As a general proposition, every infringement of the body per se
infringes the personality right to corpus and therefore, wrongful.
In
Stoffberg v Elliot
1923 CPD 148
it was stated:
"In
the eyes of the law, every person has certain absolute rights which
the law protects ... and one of those rights is the
right of absolute
security of the person. Nobody can interfere in any way with the
person of another, except in certain circumstances
... Any bodily
interference with or restraint of an man's person which is not
justified in law, or excused in law, or consented
to, is a wrong, and
for that wrong the person whose body has been interfered with has a
right to claim such damages as he can prove
he had suffered owing to
the interference."
[8]
To state the obvious, the right to bodily integrity is not absolute,
as it is clear from the above passage. One of the grounds
of
justification is private-defence, as is the plea in the present case.
Therefore if the body of another is infringed through
an act of
private defence such an infringement is lawful if all the
requirements are met. The requirements to be satisfied before
a plea
of self-defence to a delictual claim for damages will be upheld are
the following: (i) there must have been an unlawful
attack or
threatened attack and the victim must have had reasonable grounds for
believing that he was in physical danger; (ii)
the means of defence
must have been commensurate with the danger and (iii) dangerous means
of defence must not have been adopted
when the threatened injury
could have been avoided in some other reasonable way: See Ntsomi v
Minister of Law and Order
1990 (1) SA 512
(C) at 526G-H.
[9]
The defendant bears the onus of proving that the infringement was
justified. See Mabaso v Felix
1981 (3) SA 865
(A) at 871g-874D;
Ferreira v Ntshingiia
1990 (4) SA 271(A)
at 273A and Ntamo &
Others v Minister of Safety and Security 2001 (I) SA 830 (TKHC).
The
scene of shooting
[10]
Before I deal with the specific facts, a brief description of the
scene is helpful to understand the context of the shooting.
The
plaintiff's property is surrounded by a concrete wall all round. A
wide concrete driveway leads to an entrance gate, which
itself leads
to a garage, which is separate from the main house. The entrance door
to the kitchen is to the right of the garage.
It is secured by a
security burglar and a wooden door. Next to the kitchen door is a
normal-size kitchen window, through which
one is able to have a clear
view of the area in front of the garage and the gate.
The
defendant's version
[II]
Back to the facts. The defendant's version is that during the first
encounter at the plaintiff's property, the plaintiff had
verbally
threatened to shoot him. According
to him when he saw the
plaintiff standing outside his property with a gun, he formed a view
that the plaintiff was going to make
good his threat, hence he shot
the plaintiff. He avers that the plaintiff, while standing outside
his gate, had raised the hand
holding the firearm in his direction.
He immediately thought that that the plaintiff was about to shoot
him.
Issue
for determination
[12]
On the authorities, it seems to me that the proper formulation of the
question should be properly formulated as follows: did
the plaintiff
pose any danger to the defendant while standing outside his property?
If the answer is in the affirmative, was the
danger posed by the
plaintiff imminent? If so, was the shooting of the plaintiff the only
reasonable alternative for the defendant?
Put differently, could the
threatened danger have been avoided?
[13]
To consider the above, one has to have regard to the totality of
factors. As a starting point, I am prepared to accept that
when he
left the plaintiff's property after the first encounter, the
defendant had a genuinely-held belief that the plaintiff intended
to
shot him - either from the surrounding circumstances or the
plaintiffs actual verbal threat (which is the more plausible). But
once inside the sanctuary of his house, the danger posed by the
plaintiff subsided somehow. The situation afforded him less drastic
measures to avoid the potential danger posed by the plaintiff. In
Ntamo v Minister of Safety and Security (supra) it was held that
if
the threatened harm can be avoided without the use of force, for
example if one could flee without the danger to oneself, one
is not
entitled to act in self-defence.
In
Bhakaria v Mia
1918 TPD 56
at 58 it was held that a person may use
force only "after he has exhausted every other remedy".
Consequently the infringement
of the body is permissible if it is the
only reasonable alternative.
[14]
I mention two such reasonable alternatives at the disposal of the
defendant. First, he could have remained in the house, observed
the
plaintiff's movements from the kitchen window, while waiting for the
police and armed response to arrive, who had already been
summoned.
According to the defendant's wife, the latter normally took seconds
to arrive. The plaintiff was standing at the gate.
For him to have
caused imminent danger to the defendant, the plaintiff would have had
to scale over the gate or concrete walk break
open both the burglar
gate to the kitchen door and the door itself. That would have taken
time and effort, long enough for either
the police or armed response
to arrive. There was therefore simply no need for the defendant to
venture outside. Second, he could
have fired a warning shot. From the
photos of the scene, it appears that the defendant fired randomly in
the direction of the plaintiff.
Some of the bullets struck the
concrete wall from inside, and others struck the palisade gate. This
is consistent with a person
who had the intent to injure the
plaintiff, more than avoid a danger to himself.
[15]
I therefore take a view that although the plaintiff's presence
outside the defendant's property posed some danger, it was certainly
not "imminent". It would have been imminent had the
plaintiff scaled over the wall, broken down the security gate and
door. Whilst remaining outside at the gate, the plaintiff, in my
view, posed no more that a potential harm. Where the threatened
harm
could be avoided without the use of force self-defence cannot
succeed. See R v Molife
1940 AD 202
at 204 and R v Attwood
1946 AD
331
at 340.
[16]
I am satisfied that the plaintiff did not create imminent danger to
the defendant, and the defendant could not, objectively,
have
considered himself to be in such danger. Much was made of the
defendant's evidence that while outside his house, the plaintiff
lifted his hand (holding the firearm) in his direction, thus creating
a reasonable impression he was about to shoot him. This is
irrelevant
as he should not have ventured outside in the first place. The
defendant's wife testified that the plaintiff was shouting
for the
defendant to come out as he wanted to shoot him. Under those
circumstances, why venture into harm's way? At the risk of
repeating
myself, the threatened danger could have been avoided in some other
reasonable way, as pointed out above. Therefore the
defendant has
failed to discharge the onus to establish the lawfulness of shooting
the plaintiff. He could not have acted in self-defence.
[17]
In the result the following order is made:
1.
The defendant is ordered to pay:
1.1
100 percent of the plaintiff's proved or agreed damages resulting
from the injuries sustained during the shooting incident on
10
November 2010:
1.2
The plaintiff's costs.
2.
The determination of quantum is postponed sine die.
T
M Makgoka
Judge
of the High Court
dates
of hearing
........
. : 1, 2 & 5
September 2011
judgment
delivered
....
: 30 September 2011
for
the plaintiff
.............
: Mr Z Omar
(Attorney)
instructed
by
…..........
: Zehir Omar
Attorneys, Springs, and Friedland Hart Solomon Nicholson, Pretoria
for
the defendant
.......
: Adv C Acker
Instructed
by
...............
: Liebenberg Malan
Liezel Horn Inc, Heidelberg and Pretoria