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[2010] ZAECPEHC 21
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Jordaan v Minister of Safety and Security (2012/08) [2010] ZAECPEHC 21 (25 May 2010)
Not
reportable
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case
no:
2012/08
Date
heard:
1/3/2010
Date
delivered:
25/5/2010
In the
matter between:
ALVIN
JORDAAN
Plaintiff
a
nd
THE
MINISTER OF SAFETY & SECURITY
Defendant
JUDGMENT
Pillay J,
This is an action for damages arising out of an
incident in which the plaintiff was shot and injured by members of
the South African
Police Services (‘Police’).
Prior to the commencement of the hearing, the
parties had engaged in a pre-trial conference as envisaged by Rule 37
of the Uniform
Rules of Court and clarified certain issues. These
were reduced to writing in the form of a minute. Of note the parties
agreed
that the two bundles, made available at the hearing as
exhibits ‘A’ and ‘B’ would be admitted into
evidence.
Exhibit ‘A’ consists of a series of
photographs and medical records pertaining to the plaintiff. Few of
the photographs
depict firstly the erf where the incident occurred.
The other photographs depict his injuries sustained in the incident.
Exhibit
‘B’ consists of a number of police statements and
various reports regarding the shooting in question.
Plaintiff’s cause of action is based on an
alleged deliberate and intentional assault by shooting, alternatively
reckless
or negligent shooting by a member of police, acting within
the course and scope of his employment of the defendant.
It is common cause that the plaintiff sustained the following
injuries arising out of this shooting incident:
(a) An entrance wound to the left buttock over the greater trochanter
(This bullet was reportedly extracted by way of surgery and
probably
through the area of the scrotum);
(b) Two entrance and two exit wounds over the distal tibia of the
right leg; and
(c) An entrance wound on the dorsum of the right
foot inline with the second toe. This injury entailed a severed
tendon in the
right foot .The exit wound was located on the sole of
the foot.
I was told that the quantum was agreed upon and
only the issue of liability (or otherwise
)
of the defendant was required to be determined. I was requested that
should I find that the defendant is liable, to make such
an order and
to include the agreed award and together with costs.
The defendant pleaded that the plaintiff was one
of two people who was assaulting an officer
who was in the process of arresting plaintiff’s brother, and
shooting the plaintiff constituted lawful action in warding
off the
dangers which flowed from the assault.
It was also agreed between the parties that the
relevant conduct of the police was within the course and scope of
employment by
the defendant. Furthermore it was also agreed that the
onus was on the defendant to justify the said shooting. However, the
plaintiff
accepted that he would lead evidence first.
It is common cause that on the 22 April 2006 the
plaintiff together with three others accompanied his brother Caesar
Jordaan (‘Caesar’),
an informal motor mechanic, to a
scrap yard in Despatch, in order to purchase second-hand motor
vehicle parts.
Caesar was driving a motor vehicle which belonged
to his client. He was not able to find the parts at Despatch scrap
yard and then
decided to proceed to the nearby one in Uitenhage.
At the turn-off from Despatch to Uitenhage, they
were stopped by the police who were travelling in a marked police
vehicle.
Caesar was examined for signs of intoxication and
all the occupants were bodily searched. The motor vehicle they were
travelling
in was also searched. Caesar was found to be sober and
nothing untoward was found in the motor vehicle or on the others.
The driver of the police motor vehicle was
Captain
Schnetler and his passenger was Inspector Williams. Caesar drove
towards his home using what is referred to as the ‘Old
Uitenhage Road’.
Caesar testified on behalf of the plaintiff. He
said that, at the Uitenhage turn-off, he was asked to attend the
Despatch Police
Station by Captain Schnetler. He explained to the
police that he needed to first drop the motor vehicle at home as it
was that
of his client. Despite the objection of Inspector Williams,
Captain Schnetler agreed to the request on the understanding that he
go to the Despatch Police Station thereafter.
He explained that on the way home, he realised
that the police were following them. He was driving within the
normal speed limits.
While driving on the Old Uitenhage Road, the
police vehicle had been driven right up alongside his motor vehicle
and Inspector
Williams sprayed gas into his face and the motor
vehicle. He then rolled up the window to prevent more gas being
sprayed into
his vehicle.
Soon thereafter he heard two loud bangs and
noticed, when he looked back, that
Inspector Williams had a firearm in his right hand. He did not know
what caused the sounds but
in the circumstances, concluded that they
were gunshots. He became scared and thought that he and the others
were in danger.
He drove straight home with the police following.
He explained that he entered the driveway of his
parental home. He stopped in front of the inside gate, got out and
when he was
opening the gate to park the vehicle, he was grabbed from
behind, punched in the face and pulled away from the gate by
Inspector
Williams. He resisted what he described as an attack on
his person by Inspector Williams and denied that he had given anyone
reason
to do so. He explained that he at first pulled away from
Inspector Williams, then pushed him away and when the attack on him
continued, he hit back.
He also stated that the plaintiff had come to his
assistance and that at some stage, his mother and sister also came
out of the
house and shouted at the police. He explained that during
the assault, he was pinned on the bonnet of the motor vehicle and
this
developed into wrestling with Inspector Williams.
He testified that the plaintiff’s
intervention consisted of coming between him and Inspector Williams
and trying to pull them
apart.
He described that the plaintiff was then shot in
the foot. He realised this when, after hearing a shot, the plaintiff
shouted out
that he had been shot in the foot. He then saw Captain
Schnetler shoot at the plaintiff again when the latter was about one
or
two metres away from his scuffle with Inspector Williams.
Caesar explained further that Inspector Williams
then took his own fire-arm from out of his holster and seemed to want
to hold it
against his head. He told me that he was able to push the
Inspector’s arm in which the firearm was, away from his head
and
kept it away until the shooting was finished.
Soon thereafter, he was dragged away and locked up
at the back of the police van. He was taken to the Despatch police
station where
he discovered that he
had
also been shot. He stated that he was never informed of the reasons
for his arrest and he was never charged in respect of any
offence
flowing from his driving and/or for his conduct on that day.
He denied that he had interfered with the
execution of duties of the police on that day especially that of
Captain Schnetler and
/or Inspector Williams.
He also denied that he sped away from them in
Despatch and in particular, that he put the lives of others at risk.
He also denied
that he had ignored the red lights of a robots or that
he proceeded through intersections at which he should first have
stopped
in compliance with traffic signs.
He denied that he tried to jump over the gate in
an attempt to escape from Inspector Williams. He also denied that
during a tussle
between Inspector Williams and himself, he wanted to
get hold of the Inspector’s firearm either on his own or
together with
the plaintiff.
He further denied that Captain Schnetler had tried
to pull him away or hit him or had sprayed him with gas.
He specifically denied
that
Captain Schnetler had discharged two warning shots in order to warn
them that he would or intended to use the firearm. He
explained that
the first shot injured the plaintiff in the foot. He was unable to
say how many shots were fired during the incident
because he was
rendered temporarily deaf with the first shot being discharged so
near him.
The plaintiff’s sister Jolaan Jordaan was
also called to testify. She said that at the time she was still
living at her mother’s
house where the incident occurred. In
the afternoon of 22 April 2006 the dog started barking. She then
went outside and saw that
Caesar and a policeman were fighting.
Caesar was lying on the bonnet of a motor car parked in front of the
gate next to the house.
This gate was where a built garage now
stands.
Her mother, who
had gone
out with her said that they should stop the policeman from assaulting
Caesar. Their attempt to do so failed because they
were pushed away
by the policeman. (Inspector Williams).
She said that she and her mother had been sprayed with gas by the
same policeman. This forced them to run away from the immediate
scene
to a position from which they could still observe what was happening.
It is common cause that Captain Schnetler sprayed
the gas at them.
She described
that soon
thereafter a shot was fired and the plaintiff exclaimed to his mother
that he had been shot in the foot. While bending
and holding his
foot, she saw the policeman shoot him again in the region of the
buttock. The plaintiff then fell.
She
saw Captain
Schnetler then shoot at the felled plaintiff twice more in the region
of his legs, when he was lying on his side. Shortly
thereafter,
Caesar was put into the police van.
She said that before he was shot, the plaintiff
was trying to separate Caesar and the policeman who were fighting.
She also noticed
that after the plaintiff was shot, the other
policeman (Williams) had his firearm in his hand.
She described
that when
the plaintiff was shot the second time, he was approximately two
metres away from Caesar and the other policeman. She
denied that the
plaintiff had continued fighting with either of the policemen after
he was shot in the foot.
The plaintiff then testified. He confirmed in so
far as it affected him, what Caesar testified had occurred with the
police in
Despatch and on the way to their house.
He desc
ribed how when
Caesar was busy opening the gate, Inspector Williams pulled him away
and pinned him on the bonnet of the motor vehicle.
He explained that
when he saw Inspector Williams assaulting Caesar for no apparent
reason, he tried to intervene in defence of
his brother by trying to
keep them apart.
While he was trying to stop Inspector Williams
from further assaulting his brother, Captain Schnetler shot him in
the right foot.
He then stopped intervening in that scuffle in
order to hold or attend to his injured foot. While he was doing so,
he was shot
in the upper buttock. This caused him to fall down.
Immediately thereafter while lying on his side, he noticed that
Captain
Schnetler had come right up to him. He testified that
Captain Schnetler said that he was going to kill someone that day
whereupon
he shot him twice in the right leg. The plaintiff insisted
that he tried to help his brother who was being assaulted by
Inspector
Williams.
He a
gain insisted that
they were on their way home in terms of an agreement with Captain
Schnetler when they left Despatch and were
not trying to get away
from the police.
The plaintiff also denied that C
aesar
had tried to escape over a gate or that he and Caesar had tried to
obtain possession of Inspector Williams’ firearm.
He further denied that Schnetler had tried to pull
him away and that he had sprayed both him and Caesar with pepper
spray. He further
denied that at some time during the scuffle,
Williams did not have full control over his firearm. He also said
that he did not
know if a shot from Williams’ firearm was
somehow discharged during the incident.
The plaintiff denied that Williams was bleeding
and that Schnetler had discharged two warning shots or that he gave
verbal warning.
He stated that after he was shot in the foot he
was forced to step aside and hold his foot. He emphasized that
Schnetler shot him
in the upper buttock when he was holding his foot
and that felled him. He sternly disputed the proposition that
Schnetler did
not shoot at him at all when he was lying on the
ground. He explained that after he was shot in the foot, he could
hardly stand
on it.
T
he plaintiff then
closed his case.
Captain Hendrick Jocobus Schnetler testified on
behalf of the defendant. He has twenty-four years service. He is
stationed at
the Despatch Police Station
as
he was, at the time of the incident.
He stated that on the afternoon of 22 April 2006,
he was with Inspector Williams on patrol in the Despatch area.
They received a report from other people that a
motor vehicle fitting the description of the vehicle driven at the
time by Caesar,
was being driven by a person who appeared to be
intoxicated. They were also given information about the general
direction in which
such motor vehicle was being driven.
Proceeding in that direction, they saw the motor
vehicle so described and indicated to the driver that he should stop.
The motor
vehicle was stopped at the mouth of the turn off to
Uitenhage. The people who complained to them earlier also stopped
there a
short while later.
The driver, (Caesar), was examined and searched
with the four other persons in that motor vehicle. The motor vehicle
was also searched.
He explained that the searches were for drugs
and/or firearms.
Captain Schnetler testified that Caesar was sober
and no drugs or firearms were found on anyone or in the motor
vehicle. He explained
that because the people who initially
complained to them seemed dissatisfied, he asked Caesar to accompany
them to the Despatch
Police Station, merely to settle the matter
especially seeing that they were all parked in the vicinity of the
mouth of the off-ramp
and causing a potential blockage of the road.
It seems there was no intention to charge or arrest anyone.
He said that they would drive behind them. He
described that Caesar executed a U-turn and started to speed away
driving through
stop-streets, against the traffic lights and thereby
causing danger to other people. They then gave chase because of
Caesar’s
‘reckless and negligent driving’.
He described how they tried to stop the motor
vehicle being driven away on the Old Uitenhage Road to Booysen Park.
Firstly, he
drove up right next to Caesar’s vehicle so as to
facilitate the spraying of gas into it through its open window.
Shortly
thereafter when the gas did not work, Inspector Williams
discharged two stun-grenades near Caesar’s motor vehicle.
Neither
of these attempts succeeded and Caesar proceeded to Booysen
Park. The police followed them right to plaintiff’s home.
He testified that he noticed Caesar trying to
escape over a gate and Inspector Williams went to stop him. He
noticed that a scuffle
between the two then took place. He also saw
the plaintiff join an assault on Inspector Williams. When he noticed
the plaintiff
and Caesar trying to gain possession of Inspector
Williams’ firearm as they assaulted him with clenched fists, he
went to
the assistance of his colleague. He stated that he saw each
of Caesar and plaintiff with a hand on Inspector Williams’
firearm. At this stage Inspector Williams had his firearm held in
his hand and in the air.
Captain Schnetler testied that when approaching
them, he had his firearm in his left hand and a pepper spray in the
other. He tried
to pull them away from Inspector Williams but this
did not help. At that stage Inspector Williams was not in control of
the firearm
anymore and his attackers’ fingers were on the
trigger of the firearm, though he could not say whose fingers (of the
two)
it actually was.
He explained that two females then came to the
assistance of Caesar and plaintiff and also tried to gain possession
of Inspector
William’s firearm. As a result he sprayed pepper
spray at the two females till they moved away and ran to the back
section
of the front of the property. The plaintiff was still
assaulting Inspector Williams. Captain Schnetler stated that he then
hit
both plaintiff and Caesar with his firearm a number of times. He
testified that Inspector Williams’ firearm was by then pointing
towards himself.
In the circumstances he discharged two warning
shots at an angle of about forty-five degrees away from the plaintiff
in order to
persuade them to stop assaulting Inspector Williams. He
was about one metre from him when he discharged the warning shots.
This
did not have any effect and circumstances then forced him to
shoot the plaintiff in the foot. This according to Captain Schnetler
did not deter plaintiff who continued with the assault on Inspector
Williams. He was therefore again forced to shoot at the plaintiff.
He shot at the region of plaintiff’s hip. As soon as he did
so, the plaintiff fell to the ground. This seemed to have
stopped
the scuffle and Caesar was then taken to the police vehicle into
which he was locked and an ambulance was called for plaintiff.
Captain Schnetler conceded that he was the only
person that was shooting in the immediate vicinity at that time and
that in the
circumstances, it could only have been the shots he
discharged which caused the injuries to the plaintiff.
He explained that Caesar’s reckless driving
formed the basis for wanting to arrest him as this was committed in
front of the
police.
He could not explain how the plaintiff sustained
four gunshot wounds when two of the four shots he discharged were
directed away
from the plaintiff. He conceded that at that angle,
these two shots could not have injured the plaintiff.
Inspector Dewald Williams also testified on behalf
of the defendant. He has seventeen years service and is also
stationed at Despatch
Police Station as he was at the material time.
He testified that during the afternoon of
Saturday, 22 April 2006, while on patrol with Captain Schnetler, they
received a report
from some members of the public that a particular
motor vehicle was being driven by an intoxicated driver. They had
received a
description of the motor vehicle and followed the general
direction described to them in search of this motor vehicle. Shortly
thereafter, they saw this vehicle and stopped it in the area of
Despatch.
The driver was examined and found to be sober. He
and the others as well as the vehicle were then searched for drugs
and firearms
although this reason was never disclosed to any of those
who were searched. Nothing untoward was however found.
He described that while still at that scene, two
other vehicles stopped. One of these carried those who had initially
complained
to the police about the drunken driving. He stated that
an argument then ensued between them and plaintiff’s group.
He further testified that because
the
scene had the potential to block the road, they decided that both
groups should go straight to the Despatch Police Station in
order to
straighten out matters. The police station was two kilometres away
from where they were. They had put one of Caesar’s
young
friends into their vehicle.
Inspector Williams stated that all parties were
willing to do so and specifically denied that there was any request,
let alone agreement,
that Caesar could first take the vehicle back to
Booysens Park.
He told me that, as they started to leave, Caesar
began to pull off in an extremely fast manner, ignoring the red
traffic lights
and stop signs and driving in a dangerous manner in
the direction of Booysens Park to the Old Uitenhage Road.
The police
decided to
follow them and tried to stop them. Inspector
eHetheos
e
Williams testified to discharging two
stun-grenades behind their vehicle in an attempt to get them to stop.
He stated that he resorted
to stun-grenades after his attempt to
stop them by spraying pepper spray into their vehicle had failed.
Upon being confronted
by the prospect of causing an accident by
discharging stun-grenades near Caesar’s vehicle, he explained
that he did not throw
it on the road but into the bushy area
alongside the road. He also added that the road was too busy to
overtake Caesar’s
vehicle and therefore could not drive to the
front of it in order to stop it.
He described that they followed Caesar right up to
his home. When Caesar tried to escape, Inspector Williams pulled him
off the
gate over which he was trying to jump and pinned him down in
trying to effect his arrest. However Caesar then resisted and tried
to grab his firearm during the ensuing struggle in which the
plaintiff was also involved when trying to assist Caesar. At some
stage during the struggle, Caesar had his finger on the trigger.
Inspector Williams also testified that he was
aware of two females who had tried to assist his two attackers at
some stage but they
were prevented from further interfering by
Captain Schnetler. A shot was then discharged when Caesar pulled the
trigger during
the scuffle. He then heard at least two shots being
fired. He could not give details thereof.
He explained that he tried to put handcuffs onto
Caesar who was much smaller than himself.
While he was struggling with Caesar, he could not
see what Schnetler was doing and in that respect he could not throw
any light
on Schnetler’s action in discharging his firearm.
Mr Swanepoel
who
appeared for the plaintiff, and despite the agreement between the
parties, argued that the onus of proving that shooting at
the
plaintiff was justified lies with the defendant. The argument is
based on an assertion that the shooting occurred during
an attempt to
arrest. In the light of it being raised, I will deal with this issue
briefly.
The defendant pleaded that when the plaintiff,
with Caesar on the one hand, and Inspector Williams on the other,
were struggling
for possession of the latter’s firearm, he shot
the plaintiff once.
However contextually, it is clear from the
pleadings that Captain Schnetler’s conduct occurred within the
broad spectrum of
effecting an arrest.
The importance of this aspect is the prospects of
dealing with this case outside of
Section 49
of the
Criminal
Procedure Act 51 of 1977
in which case, the onus would conceivably be
on the plaintiff to prove the defendant’s liability.
In my view, the use of the firearm occurred as
part and parcel of the broad operation of effecting an arrest.
Judging from the
pleadings and indeed the evidence and the conduct of
the case, it is clear that this was always the parties’
approach to
the dispute. Consequently, the onus would still be on
the defendant to justify shooting the plaintiff.
The issue is rather academic since
the parties had in any event agreed at a
rule 37
conference (and
recorded it as such), that the defendant carried the onus of
justifying the shooting on the basis of necessity
and/or third party
defence.
Consequently it is not necessary to determine
whether the onus shifted
on the basis that
the activity changed from effecting an arrest to one of necessity or
private defence.
Mr Swanepoel raised a number of legal arguments
ranging from constitutional imperatives to freedom of individuals,
proportionality,
legality of the arrest and the entitlement to take
drastic steps in circumstances brought about by the person(s)
contemplating
such steps themselves.
In the light of the conclusions I have arrived at,
it is not necessary to deal with any of these legal aspects.
The version of the plaintiff differs vastly from
that of the defendant’s witnesses especially on the crucial
aspects.
The plaintiff and Caesar deny having caused any
situation which justified the action of the police.
While there were differences within the versions
of the plaintiff’s witnesses, these did not touch the material
aspects and
on which the plaintiff’s witnesses were consistent.
Whereas on the other hand, the version of the defendant’s
witnesses while generally consistent, raises certain questions
which
go to the root of the case.
Where the plaintiff’s version and that of the defendant are
mutually destructive, the parties carrying the onus of proving
his or
her case can only succeed if:
“
he satisfies 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 or 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 with a 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”,
(per Eksteen JA in National Employer’s General Insurance Co Ltd
v Jaggers
1984 (4) SA 437
(A) at 440 E-G in which the plaintiff
[Respondent] had the onus of proving liability of the defendant
[Appellant]. See also: Plaatjies
and Another v Road Accident Fund
[1999] 1 All SA 162
(SE).
W
hile it is common cause
that all concerned would have met up at the Despatch Police Station,
it is improbable that Caesar would
have raced away in a reckless
manner in full view of the police. Furthermore, it is improbable
that, having been examined and
searched and nothing untoward being
found by the police, Caesar would have committed such traffic
offences, least of all in the
presence of the police. It does not
seem that he had reason to race away or escape from the police.
Furthermore, in an attempt to stop Caesar from
proceeding further, the police were able to drive right up alongside
their motor
vehicle and spray him with gas. Yet the defendant’s
version in this regard is not that Caesar was travelling too fast but
that they did not find an opportunity to overtake and force him to
stop. It is improbable that over a distance in excess of twenty
kilometres, no such opportunity presented itself. This aspect is
further complicated by the use of stun-grenades in circumstances
which rendered the road too busy to overtake. It is improbable that
any policeman would or could put innocent road users at risk
with the
effects of a stun-grenade in such circumstances.
What is more, even if the use of stun-grenades was
justified at the time, it could hardly cause Caesar to stop his motor
vehicle
because, as Inspector Williams said, he threw them in the
bush alongside the road. Inspector Williams changed his evidence on
that aspect in testifying that he threw them in the bush when it was
pointed out to him that discharging the stun-grenades on the
road,
which impression he initially gave, cold cause a danger not only to
Caesar but other road users. The initial impression
of his evidence
was that he threw them immediately behind Caesar’s vehicle.
The defendant’s witnesses both testified
that they searched the occupants of Caesars’ motor vehicle as
well as the motor
vehicle itself routinely for drugs and firearms
without divulging such reasons for the searches. Neither of them was
able to explain
how the plaintiff and Caesar knew that this was the
reason for the search.
Most important is the evidence of Captain Schnetler in regard to
discharging his firearm at the material time.
It is common cause that the plaintiff was shot and
injured four times. Captain Schnetler accepted that in the
circumstances all
those shots could only have been discharged from
his firearm and by him. However he could not explain why the
defendant pleaded
that he had only shot the plaintiff once.
He explained that he fired two warning shots in a
different direction from where the plaintiff was. He testified to
directing only
two shots at the plaintiff injuring him in the foot
and the region of his hip. He was however unable to explain how the
plaintiff
was shot twice in his leg.
Even on Captain Schnetler’s own version, he
first injured the plaintiff in the foot and when this did not deter
the plaintiff
he was forced to shoot
at him
again and aimed at his hip.
The nature of the injury to the plaintiff’s
foot involved a severed tendon of that foot with an exit wound
located on the
sole. Human experience with such an injury dictates
that it would be highly improbable that the plaintiff would have been
able
to stand on that foot let alone use it to balance himself in
grappling with Inspector Williams. It is highly improbable that the
plaintiff would not have been rendered incapacitated upon being so
injured. Consequently it would have been unnecessary to shoot
him
further.
This and the inability to explain the two injuries
to the leg
cast extreme doubt on the
version of the defendant.
On the other hand the explanation by the plaintiff
and his witnesses as to how those injuries were sustained is
generally logical
and supported by objected and undisputed evidence
which has been admitted by defendant. eg: that he was shot four times
and the
location thereof on the plaintiff’s body.
The plaintiff’s version is fortified by the
absence of
an explanation in regard to some
of the injuries sustained by the plaintiff. It is probable
therefore, that these injuries were
inflicted in the manner described
by the plaintiff and his witnesses.
In the aforegoing, it is extremely difficult to
rely on the defendant’s version.
Consequently I find that the overall probabilities
favour the version of the plaintiff. It follows then that his
version must be
a
ccepted as being probably
true and that of the defendant rejected as improbable.
In the circumstances, the defendant has not discharged the onus of
proving that the conduct of Captain Schnetler was justified
in the
circumstances. The defendant is therefore found to be liable for
plaintiff’s damages arising out of the incident.
The parties have agreed that in the event of it
being found that the defendant is liable for the plaintiff’s
damages, such
an order should be made and that an award in an amount
of R 220 000,00 should also be made in favour of the plaintiff. I
would
also make provision for interest thereon.
They also agreed that in that event, costs of the
suit should be granted in favour of the plaintiff and that such costs
should include
the costs of an inspection in loco, the costs of the
relevant photographs and plan as well as the costs attendant on the
reports
of Mr Meyer and Dr Mackenzie.
In the result, I make the following order:
1. The defendant is held liable for damages
sustained by the plaintiff and ordered to pay plaintiff an amount of
R 220 000, 00 as
and for such damages.
2. The defendant is ordered to pay interest
thereon calculated at 15, 5% per annum from a date two weeks after
allocatur
to date of payment.
3. Costs of suit, such costs to include the costs
of an inspection in loco, the photographs and plan as well as the
costs attendant
on the provision of the reports of Mr Meyer and Dr
Mackenzie.
_______________________
R. PILLAY
JUDGE OF THE HIGH COURT
Appearances:
for
the Plaintiff(s)/ Applicant(s)/Appellant(s): ADV. SWANEPOEL
for
the Defendant(s) /Respondent(s): ADV. WOLMARANS
Instructing
attorneys:
Plaintiff(s)/Applicant(s)Appellant(s): SWARTS
ATTORNEYS
80
STANFORD RD, KORSTEN, PORT ELIZABETH, 60001
Defendant(s)
/ Respondent(s): STATE ATTORNEY
29
WESTERN RD, CENTRAL
PORT
ELIZABETH,6001
CASE
INFORMATION -
Nature
of proceedings
:
CIVIL