Erasmus v Minister of Safety and Security (1336/2008) [2009] ZAECPEHC 39 (21 August 2009)

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[2009] ZAECPEHC 39
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Erasmus v Minister of Safety and Security (1336/2008) [2009] ZAECPEHC 39 (21 August 2009)

FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
1336/2008
High
Court:
Port
Elizabeth
DATE
HEARD:
7
August 2009
DATE
DELIVERED:
21
June 2009
JUDGE(S):
D.
Chetty
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s):
Adv
Price
for
the Respondent(s):
Adv
Gqamana
Instructing
attorneys:
Applicant(s):
Clark
& Erasmus (G.C Clark)
Respondent(s):
State
Attorney: Ref: Y
CASE
INFORMATION -
Nature
of proceedings
:
Action
Topic:
Key
Words:
Delict
– Damages for assault, wrongful arrest and detention – Plaintiff
allegedly shot in self defence – Plaintiff thereafter
arrested
without warrant on charge of having committed offence in presence of
arresting officer and for having committed robbery
– Evidence
established that plaintiff arrested in mistaken belief he was
involved in robbery – shooting sought to be justified
on the ground
that plaintiff was the robber – Evidence contrived to justify
shooting - Defendant liable to compensate plaintiff.
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE,
PORT ELIZABETH)
Case No: 1336/2008
In the matter between
ELROY
ERASMUS
Plaintiff
And
MINISTER OF
SAFETY AND SECURITY
Defendant
Coram:
Chetty,
J
Date
Heard:
7
August 2009
Date
Delivered:
21
August 2009
Summary:
Delict
– Damages for assault, wrongful arrest and detention – Plaintiff
allegedly shot in self defence – Plaintiff thereafter
arrested
without warrant on charge of having committed offence in presence of
arresting officer and for having committed robbery
– Evidence
established that plaintiff arrested in mistaken belief he was
involved in robbery – shooting sought to be justified
on the ground
that plaintiff was the robber – Evidence contrived to justify
shooting - Defendant liable to compensate plaintiff.
______________________________________________________________
JUDGMENT
______________________________________________________________
CHETTY, J
[1] The plaintiff
claims damages from the defendant in consequence of bodily injury
sustained by him on Friday, 17 August 2007 when
he was shot and
wounded by Constable
Lyle
Anthony Pyne
(
Pyne
)
in Bethelsdorp, Port Elizabeth. In addition to the aforegoing the
plaintiff alleges that he was thereafter wrongfully and unlawfully

arrested without a warrant and, wrongfully and unlawfully detained
under police guard at the Livingstone hospital in Port Elizabeth

until his release at approximately 2 p.m. on Sunday, 19 August 2007.
At the inception of the trial and on the application of the
parties I
ordered a separation of the issues in terms of Rule 33 (4) of the
Uniform
Rules of Court
.
This judgment is accordingly confined to determining the issue of the
defendant’s liability, the quantum of his claim and its
details not
being relevant for present purposes.
[2] The
defendant has pleaded to plaintiff’s claim alleging that –
As regards the
shooting
– “
the
plaintiff was shot at once in the leg by Constable Lyle Anthony
Pyne when the plaintiff attempted to stab him with a knife
during
the course of the plaintiff’s arrest”
and;
As regards the
arrest and subsequent detention, that
– “
the
arrest and detention were lawful in that the arresting officer was
authorised to arrest the plaintiff in terms of
s 40
(1) (a) of the
Criminal
Procedure Act No 51 of 1977
in that the plaintiff committed an offence in his presence
”;
and
“.
. . the arrest and detention were lawful in that the arresting
officer was authorised to arrest the plaintiff in terms
of
s 40
(1)
(b) of the
Criminal
Procedure Act
in
that there was reasonable suspicion that the plaintiff had
committed an offence of armed robbery
”.
[3] It will be
gleaned from the aforegoing that the defendant has in each instance
referred to in the preceding subparagraph contended
that the arrest
was lawful. Consequently the onus of proving the lawfulness of the
arrest and of the detention which followed it
is upon the defendant.
In
Minister
of Law and Order and Others v Hurley and Another
1
Rabie, CJ, succinctly summarised the position thus –
“
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the
onus
of
proving that his action was justified in law. See generally
Weeks
and Another
v.
Amalgamated
Agencies, Ltd
1920
AD 218
at
226
;
Cohen Lazar & Co.
v.
Gibbs
1922
TPD 142
at
144
-
145
;
May
v.
Union
Government
1954(3) SA 120(N) at 124 H;
Ingram
v.
Minister of police
1962(3) SA 225(W) at 227 D, and
Areff
v.
Minister van
Polisie
1977(2) SA 900(A) at 914 G.”
[4] As regards the
actual shooting, which is admitted on the pleadings, the defendant
likewise has the burden of proving it to be
lawful on a balance of
probabilities. See
Mabaso
v Felix
2
where the court, after an exhaustive analysis of earlier case law and
academic writing concluded
3
-
“
Turning
now to the pleadings in the present case we think that their essence
and effect are as set out above. Consequently, according
to
substantive and adjective law the
onus
was
on the defendant to prove that in shooting and injuring the plaintiff
he acted in self-defence and that such shooting was reasonably
and
legitimately required for defending himself.”
Counsel for the
defendant correctly conceded that the defendant was saddled with the
onus and the duty to begin. With that prelude
therefor I turn to the
evidence adduced to determine whether the defendant has discharged
the onus resting upon it. The defendant
opened its case calling, as
its first witness, Constable
Pyne
.
[5]
Pyne
was off duty and resting at home when he received a telephone call
from his mother-in-law who informed him that her minor son,
Brett
Johnson (Brett)
,
had been accosted and robbed.
Pyne
sprang into action. He proceeded to his mother-in-law’s home, some
14 kilometres from his own and interviewed
Brett
on his arrival there. The latter stated that whilst walking with
friends, a person robbed him of his cell phone at gunpoint. Being

acquainted with the area,
Pyne
telephoned a colleague of his, one Inspector
Calvert
(
Calvert
)
and elicited information concerning the recognised spots where known
miscreants were wont to assemble.
Calvert
told
Pyne
that he would accompany him and accompanied by a colleague, Inspector
De
Souza (De Souza)
,
arrived in their police vehicle and met up with him.
Brett
gave
Pyne
a description of his assailant describing him as short in build, a
scar on his face, dressed in an overall of sorts and wearing
a beanie
on his head. Although
Brett
did not specifically mention his assailant’s race,
Pyne
assumed, given the location where the incident occurred, that he was
a coloured male.
[6]
Calvert
and
De
Souza
explained the intended
modus
operand
i.
Pyne
and
Brett
would follow them as they cruised past known gangster hangouts with
the aim that
Brett
would be able to see and identify his assailant. The exercise proved
uneventful and yielded no results. Eventually
Pyne
and
Brett
parted company with
Calvert
and
De
Souza
and proceeded in the direction of the Bethelsdorp police station to
enable
Brett
to lay a formal charge of robbery. En route thereto and as they
passed an open field near a school, a person emerged from the field

whereupon
Brett
immediately identified him as the robber.
Pyne
asked if he was certain and when
Brett
replied in the affirmative,
Pyne
made a u-turn and followed the person, whom, it is now common cause
was the plaintiff.
Pyne
shouted out to him saying that he wanted to talk to him but the
plaintiff continued walking making gestures which
Pyne
construed as fobbing him off.
Pyne
hooted at him but to no avail and then stopped his vehicle, alighted
and proceeded on foot behind the plaintiff calling upon him
to stop.
The plaintiff however swore at him and continued on his way. At this
stage
Pyne
was about 5 paces behind the plaintiff.
[7] As
Pyne
came closer, about 2 to 3 paces from him. He observed the latter
removing what he described as an Okapi knife from his right pocket,

turned and executed a stabbing motion in his direction.
Pyne
removed his firearm from his waist and fired one shot aiming at the
plaintiff’s legs, causing him to fall to the ground. He grabbed

hold of the plaintiff’s hand, disarmed him of the knife and dragged
him out of the street. He instructed
Brett
to go to nearby houses and summon the police. After
Brett
departed he closed the knife and kept it on his person. Shortly
thereafter
Brett
returned followed after an interval, by members of the Bethelsdorp
police station including one Inspector
McCarthy
to whom
Pyne
handed the knife. A civilian person then arrived on the scene but
Pyne
told him to move away saying that it was a crime scene. He identified
this person as
Henry
Arends,
about whom, more later. At the conclusion of his evidence in chief
Pyne
volunteered the information that when
Brett
returned to the scene he once more asked him whether the plaintiff
was the person who had robbed him and
Brett
once more replied in the affirmative.
[8] As
corroboration for
Pyne’s
evidence that the plaintiff was the person who had been positively
identified by
Brett
as his assailant, the latter was called as a witness.
Brett
is a young boy, a grade 10 scholar at the Sanctor secondary school.
After school, he was walking in the company of some school
friends
and noticed a person emerging from what he described as a plot
towards Stanford road. The person asked him what time the
taxi’s
stopped but he became suspicious and walked on. He noticed that the
person wore a black top, overall pants and a beanie
on his head. As
he walked he felt his arm being grabbed and when he looked back, saw
that this person had a gun and felt it pressing
into his abdomen. The
person ordered him to hand over his cell phone. His reply was that he
had none. The person searched him,
found his cell phone and said that
he could go and fetch anyone he wished before running away in the
direction of Bethelsdorp.
[9] He confirmed
that
Pyne
arrived at his home where he related what had transpired and narrated
their abortive attempt to find his assailant when accompanied
by
Calvert
and
De
Souza
.
He further testified that whilst they were driving towards the police
station a person came running out from a bushy area adjacent
to the
road whereupon
Pyne
immediately asked if this was his assailant. When he replied in the
affirmative Pyne shouted that he is a policeman and that the
person
should stop. The person however proceeded undeterred.
Pyne
stopped the vehicle, pursued him and when he was a short distance
away the person looked at
Pyne
twice before the latter shot him.
[10] Inspector
McCarthy
confirmed that
Pyne
handed an Okapi knife to him, the only difference in their evidence
being that according to
McCarthy
the knife was open.
[11] The
plaintiff’s evidence stands in stark contradiction to that tendered
by the defendant’s witnesses. He denied having
robbed
Brett
maintaining that he was at work during the course of the day
whereafter he and a friend,
Henry
Arends
,
were dropped off at a service station by their employer. The two of
them made their way to a local tavern where they purchased
wine
before repairing to
Henry’s
house where they consumed some of the liquor. After a while he
decided to go to his employer’s house to ascertain whether he
could
work the next day and whilst en route thereto observed an unmarked
vehicle on the side of the road.
[12] Whilst
running towards his employer’s home he heard a gunshot, fell to the
ground and realised that he had been shot. He
denied being in
possession of a knife. After the arrival of the police and the
ambulance he was eventually taken to the Livingstone
hospital where
he was kept under police guard until Sunday afternoon.
[13] It is common
cause that after the shooting,
Brett
laid a charge of robbery against the plaintiff at the Bethelsdorp
police station. Barely a day and a half later and whilst recuperating

in hospital, the plaintiff was informed that the charge had been
dropped. It is common cause that the charge was never persisted
with.
What instead transpired is that
Pyne
was charged with attempting to murder the plaintiff. At his
subsequent trial however he was discharged from prosecution at the

conclusion of the state case after the adduction of evidence by the
plaintiff and
Henry
Arends
.
The transcript of those criminal proceedings formed part of a bundle
of documents at the trial in casu and were referred to during
the
trial. In his judgment discharging
Pyne
from prosecution in terms of
s 174
of the
Criminal
Procedure Act
the
magistrate applied the incorrect test, holding, rather tersely,
that the version of
Pyne
,
as put to the plaintiff and
Arends
could
“reasonably
possibly (be) true”
.
Be that as it may, nothing really turns on the fact that
Pyne
was discharged as aforesaid.
[14] In analysing
Pyne’s
evidence relating to the actual shooting of the plaintiff I am
mindful of the fact that he appeared extremely nervous when called
to
testify. He ascribed his unease to the fact that he had never before
appeared in a High Court. Notwithstanding, his evidence
is not a
model of clarity. He is, on his own version, an experienced policeman
and his narrative of the events should have presented
no
difficulties. Central to his version was the fact that the plaintiff
was armed with a knife. Yet
Brett,
who witnessed the events as they unfolded, was constrained to admit
that he did not see any knife in the plaintiff’s possession.

Although
Brett
sought to dilute this evidence during cross-examination by stating
that he could not be entirely sure if the plaintiff was armed
because
he was some distance away, the clear import of his evidence in chief
however was that the plaintiff was unarmed when he
was shot.
[15] The plaintiff is an ordinary
simple individual. He made a good impression on me and I accept his
evidence that he was not armed
with a knife. During his
cross-examination he was challenged to explain the anomaly between
the averments in his particulars of
claim that he had been shot twice
and his evidence that he was shot once. His answer was simple and
straightforward. After being
shot he fell to the ground and
experienced excruciating pain which endured until his hospitalisation
and treatment. According to
him clinical examination revealed the
presence of a bullet fragment in the right leg. In addition an
entrance bullet wound on the
rear left side of the left knee with a
corresponding exit wound on the right side of the left knee
presented. I interpolate to
say that it is common cause that the
bullet passed through the left knee before becoming lodged in the
plaintiff’s right leg.
In such circumstances the plaintiff’s
erroneous conclusion that he had been shot twice is understandable.
During his cross-examination
the plaintiff was asked to pinpoint the
entrance wound. What he pointed to accords with what is recorded
earlier herein and serves
as corroboration for his evidence that he
was shot at from behind. In contradistinction thereto Pyne’s
evidence that he shot
the plaintiff when the latter was barely two
paces from him seems highly improbable and does not accord with the
objectively established
facts viz. position of the entrance wound and
the bullet tract.
[16] It is
furthermore not in issue that the plaintiff was, to an appreciable
extent inebriated on the day in question. His evidence
concerning the
events which preceded the shooting and to which I adverted to
hereinbefore was never challenged save to suggest
that after he was
dropped off by his employer in the same vicinity where
Brett
was robbed he had the opportunity to rob and perpetrated the robbery.
Although neither
Pyne
nor
Brett
could give specific times when they reconnoitred the area, it is
inconceivable that the plaintiff could, in the time period in

question, have robbed
Brett
and thereafter have divested himself of the firearm and cell phone
and effect a change of clothing by donning a black jacket. The

presence of
Henry
Arends
on the scene immediately after the shooting in fact supports the
plaintiff’s version that he was in the latter’s company
immediately
prior to the shooting.
[17] The reason
advanced by
Pyne
for following the plaintiff initially in the vehicle and thereafter
on foot was that
Brett
had identified the plaintiff as his assailant when the latter emerged
from the field on the side of the road. If that evidence
is correct
then there would have been no reason why
Pyne
would ask
Brett
to confirm that that was so after he had been sent to telephone the
police. In this context
Brett’s
evidence is in direct conflict with that of
Pyne
.
According to
Brett
,
it was
Pyne
who asked him whether the person who emerged from the field was his
assailant. It was when he replied in the affirmative that
Pyne
went in hot pursuit of the plaintiff. These inconsistencies in their
evidence ineluctably compels the conclusion that on order
to justify
the shooting of the plaintiff.
Pyne
and
Brett
conspired with each other to falsely implicate the plaintiff as the
robber. That
Brett
was robbed admits of no doubt. His evidence identifying the plaintiff
as his assailant is however clearly contrived to afford justification

for
Pyne’s
conduct.
[18] It is of
importance to note that when
Brett
was questioned by the police that very evening he was unable to
provide a description of his assailant. Under cross-examination
he
was confronted with an entry made by Inspector
Andrews
in the investigation diary which read “
He
is not sure of the description.”
He responded by saying that he in fact gave Inspector
Andrews
a description. That evidence is patently untrue. It is inconceivable
that the entry would read as it does if
Brett
in fact gave a description of his assailant. It was obvious when the
plaintiff testified that he has no discernable scar on his
face.
Counsel for the defendant however, in order to lend credence to
Brett’s evidence that the plaintiff had a scar, drew attention
to
the fact that there were lines under the plaintiff’s eyes which he
contended resembled scars. The plaintiff explained that
these lines
were caused by sleep deprivation as a result of the pain and insomnia
caused by the shooting and I accept the plaintiff’s
evidence in
this regard. Visually they certainly do not appear to resemble scars
and would most certainly not have been present
on his face prior to
the shooting. The discrepancy in the evidence of
Pyne
and
McCarthy
concerning the knife assumes importance when considered against the
backdrop that the plaintiff was wrongfully shot. The mere fact
that
it was entered into the SAP13 later that day is entirely irrelevant.
Having wrongfully shot the plaintiff, the knife was proffered
by
Pyne
as evidence justifying the shooting.
[19] Upon an
appraisal of the evidence I am satisfied that Pyne’s version as to
the circumstances in which he shot the plaintiff
is false. It is
obvious that after the shooting he conspired with
Brett
by cajoling the latter to identify the plaintiff as the person who
had robbed him. I accept the plaintiff’s version that he was
shot
at from a distance whilst he was en route to his employer’s home
and am driven to the conclusion that he was shot in the
mistaken
belief that he had robbed
Brett
of his cell phone. That he was thereafter wrongfully arrested and
detained admits of no doubt - it was a necessary corollary to
justify
the shooting. I accordingly hold that the defendant is liable to the
plaintiff for such damages as he may in due course
prove and in the
result the following order will issue –
1. The defendant
is liable to compensate the plaintiff for such damages as he may in
due course prove.
_______________________
D. CHETTY
JUDGE OF THE HIGH COURT
Obo
the Plaintiff: Adv Price
Instructed
by Clark and Erasmus
14
Trafalgar Square
North
End
Port
Elizabeth
(Ref:
G.C Clark)
Obo
the Defendant: Adv Gqamana
Instructed
by the State Attorney
29
Western Road
Central
Port
Elizabeth
(Ref:
726/2008/Y)
1
1986
(3) SA 586
(AD) at 589E-G
2
1981
(3) SA 865
(AD)
3
At
876F