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[2010] ZAECPEHC 32
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Petla v Minister of Safety and Security (2001/2007) [2010] ZAECPEHC 32 (17 June 2010)
FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, GRAHAMSTOWN JUDGMENT
ECJ:
PARTIES
:
FREDDIE PETLA
AND
MINISTER OF SAFETY AND SECURITY
Registrar:
2001/2007
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, GRAHAMSTOWN
DATE
HEARD:
04/06/10
DATE
DELIVERED:
17/06/10
JUDGE(S):
GROGAN
AJ
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
ADV:
SH Cole
for
the Defendant(s):
ADV:
Rugananan
Instructing
attorneys:
for
the Plaintiff
(s):
WHEELDON
RUSHMERE & COLE ATTORNEYS
for
the Defendant(s)
:
NN
DULLABH & CO.
CASE
INFORMATION -
Nature
of proceedings
:
DAMAGES
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, GRAHAMSTOWN)
CASE
NO.: 2001/2007
In
the matter between:
FREDDIE
PETLA Plaintiff
and
MINISTER
OF SAFETY & SECURITY Defendant
JUDGMENT
GROGAN
A J:
[1] In circumstances that
will be set out later in this judgment, the plaintiff sustained a
gunshot wound as a result of the actions
of a police officer on the
evening of 18 October 2004. He has instituted action against the
defendant, stating in the particulars
of claim that the shot was
fired intentionally and/or recklessly or negligently by the police
officer in the course and scope of
his employment, and that in either
event the defendant is liable for damages for the injuries he
sustained and their
sequalia
.
[2] At the commencement
of the proceedings, the parties sought the Court’s leave to
separate the issue of liability from that
of damages. Leave was
granted. This judgment is therefore concerned only with whether the
defendant is liable for the injuries
suffered by the plaintiff. If
such liability is established, the quantum will be decided after
evidence is heard concerning the
damages, if any, to which the
plaintiff is entitled.
[3] I also record a
decision on another preliminary issue. Mr
Cole
,
who appeared for the plaintiff, contended that, in view of the nature
of the plea, the burden rested on the defendant to prove
the facts on
which he relied and that the defendant should commence leading
evidence. Mr
Rugananan
,
for the defendant, contended that the onus of proof and duty to
commence rested, as in the normal course, on the defendant. In
view
of the ambivalence of the plea, the Court ruled, without prejudging
the onus, that the plaintiff should commence.
[4] The evidence revealed
the following facts to be common cause. On the evening in question,
Inspector (in the current terminology,
Warrant Officer) M Sabani was
on duty at the Bedford police station with his colleague, Sgt P
Kahla. Each officer drew the routine
issue of firearms, a 9mm Beretta
pistol with 15 live rounds of ammunition in its magazine, and a spare
magazine containing 15 more
rounds. After nightfall, the duty police
officers received a tipoff from an informer advising them that four
men, unknown to the
community, were in the vicinity driving a white
Nissan bakkie, and that the men appeared to have been involved in
criminal activity.
Inspector Sabani and Sgt Kahla responded by
driving about 10 kilometres along the road leading to Grahamstown,
but saw nothing
suspicious. They returned to Bedford, and decided to
keep the main road through that small town under surveillance from a
filling
station.
[5] As it happened, the
police officers’ actions were warranted. After a short wait,
they observed the lights of a vehicle
approaching from the direction
of Grahamstown. It turned out to be a white Nissan bakkie, with two
men in the cab and two men seated
on the load area. The vehicle was
being driven by the plaintiff. The bakkie was loaded with about 800
kg of stolen copper wire.
Although the precise route then taken by
the bakkie is in dispute, it is common cause that the police officers
followed it for
some distance before the vehicle came to a halt
outside Bedford along the road to Cookhouse, the R63. Gunshots were
fired, and
all the occupants were apprehended within minutes. It was
during this time that a single bullet fired by Inspector Sabani
passed
laterally through the plaintiff’s abdomen. Beyond these
facts, the parties take issue on almost every detail.
[6] The plaintiff avers
that he chanced upon the three men with whom he was arrested in
Cookhouse, from where he took them to Bedford
because they had
offered him R200.00 to transport furniture. He discovered that the
cargo he had agreed to carry consisted of bales
of wire only when the
men took him to a farm outside Bedford. The plaintiff claimed that
the men told him that the wire had been
given to them by the farmer
by whom they were employed. According to the plaintiff, the first he
realised something might be amiss
was after he had turned onto the
R63 on his way back to Cookhouse. The moment he saw blue lights
flashing behind him, he pulled
off onto the gravel beside the tarmac
and stopped. The plaintiff claimed that the two policemen then fired
off a hail of bullets,
and that one fired the round which struck him
as he (the plaintiff) was raising himself from the driver’s
seat to a standing
position on the ground preparatory to inquiring
why the police had stopped his vehicle.
[7] Inspector Sabani and
Sgt Kahla on the other hand, claimed that before the plaintiff’s
bakkie reached the turnoff onto
the R63, it took a detour in the
opposite direction through Bedford and that they followed it through
the town before it started
off on the national road. Inspector Sabani
and Sgt Kahla claim that the plaintiff brought his vehicle to a halt
in the middle of
the left hand lane of the road. This was confirmed
by Capt M Britz, who visited the scene after the shooting. The police
witnesses
claim that five shots were fired, four into the air and one
in the plaintiff’s direction. When he testified, Inspector
Sabani
was unable to explain precisely how the bullet had struck the
plaintiff, but was adamant that he had fired from some distance in
circumstances where it was necessary to resort to firearms to prevent
the occupants of the bakkie from escaping or possibly attacking
him
and his colleague.
[8] It is unnecessary to
resolve each of these factual disputes for purposes of determining
the defendant’s liability. I accept
that the police officers
had good reason to suspect that the bakkie’s occupants were
involved in criminal activity, and that
they were doing what would
have been expected of any police officer when they stopped the bakkie
and apprehended the men. I also
accept that when the bakkie came to a
halt Inspector Sabani and Sgt Kahla also had good reason to suppose
that its occupants might
attempt to flee or resist arrest. The only
issue in this case is whether the circumstances warranted firing the
shot which struck
and injured the plaintiff.
[9] Mr
Cole
correctly contended that the issue must be determined on the
pleadings and the evidence, having regard to the probabilities and
to
the credibility of the respective witnesses. I turn first to the
pleadings. In the particulars of claim, the plaintiff avers
that
Inspector Sabani or Sgt Kahla assaulted him by deliberately shooting
him with a firearm or, in the alternative, that these
police officers
acted with reckless disregard of the plaintiff’s safety or
negligently discharged a firearm in a manner that
caused him injury
in circumstances where, with the exercise or reasonable care, they
could have avoided injuring the plaintiff.
The defendant pleads that
the shot which injured the plaintiff was fired by Inspector Sabani,
who “on reasonable grounds
believed that the plaintiff was
attempting to get hold of a fire-arm” and to “protect
himself from imminent or future
death or grievous bodily harm fired a
warning shot”. According to the plea, that shot “richocheted
(
sic
)
off the
road surface and struck the plaintiff”.
[10] This much is
accordingly clear: the defendant’s pleaded case was that
Inspector Sabani was attempting to defend himself
and his colleague
against an anticipated attack, that he had not intended to injure the
plaintiff, and that the fact that the plaintiff
was struck by a
bullet he fired and injured was an unfortunate result of the
circumstances in which the shot was fired. On the
face of it, this is
a plausible defence. It combines elements of self-defence and a
denial of negligence and even, possibly, a
claim of contributory
negligence (not pursued in these proceedings).
1
Since the defendant has set this defence up in his plea, he was bound
to prove its elements. I accordingly turn to consider in
more detail
the oral evidence adduced during the trial, focusing, in the light of
the observations I have already made, on what
I conceive to be the
material facts.
[11] I have set out the
essence of the plaintiff’s description of the events that
unfolded before his vehicle and the police
van simultaneously drew to
a halt on the R63. In regard to what followed, the plaintiff said two
officers alighted from the police
van and moved towards his vehicle,
firing shots. One of the officers instructed them in English to get
out of the vehicle and to
lie down on the road, then the other
(apparently Sgt Kahla) returned to the police van to arm himself with
a “big gun”.
The plaintiff said that while these
developments unfolded he remained seated behind the wheel of the
bakkie in a state of shock.
He said that Inspector Sabani (whose
identity he subsequently learned) instructed the men on the back of
the bakkie to get off
and lie down on the road. While they did so,
Sgt Kahla continued firing shots. The plaintiff said that he then
began climbing out
of the cab with his left palm upward in a gesture
of surrender and that, when he was out, he raised his right hand as
well. At
that moment he felt a bullet strike him on the right side of
his abdomen. At that moment, Sgt Kahla was positioned close to the
open door of the bakkie, and Inspector Sabani was standing next to
its right tail light when he fired the shot that struck him.
The
plaintiff said he did not fall down, but simply exclaimed: “You’ve
shot me!” He was then instructed to go
to the spot the other
men were lying, where he knelt down. Not long after that, another
police officer arrived and the plaintiff
was taken to hospital.
[12] Sgt Kahla, who had
at the time been a police officer for 15 years, said that he drove
the police van on the night in question.
While following the
plaintiff’s vehicle he deduced that it was carrying a heavy
load because it was slewing from side to
side. After following the
bakkie through the town, it had crossed the main road through Bedford
without stopping at the stop sign
and proceeded up the road to
Cookhouse. Sgt Kahla said he then turned on the blue flashing lights
of the police vehicle and hooted.
The bakkie proceeded on its way at
between 80 and 100 km before it ultimately stopped. Sgt Kahla said
he drew to a halt about
eight metres behind the bakkie, with the
headlights on. The men on the back jumped off and it was evident that
they intended to
flee into the darkness. Kahla immediately opened the
driver’s door of the police van and when he was standing on the
road
he fired two warning shots into the air. The two men stopped in
their tracks, and he instructed them to lie down. During this period,
Sgt Kahla’s attention was focused on these two men. But after
they lay down he noticed a third man kneeling on the ground
next to
them. This man, who turned out to be the plaintiff, said he had been
shot. At first, Kahla thought he was lying, but then
he saw blood on
the front of his shirt. In the meantime, Sabani had subdued the
fourth man and brought him round the bakkie to
the others, where he
too was instructed to lie down. The police officers then radioed for
assistance, and the then commanding officer
of the Bedford police
station, Captain Britz arrived soon afterwards.
[13] Inspector Sabani
confirmed that he was on duty with Sgt Kahla and that they received
information about a suspected crime from
an informer. Sabani said he
first observed the Nissan bakkie from the garage in Donkin Street.
They saw it turn into Hutton Street,
and they followed it along
Plasket Street, at the end of which the bakkie crossed Donkin Street
without heeding the stop sign and
set off along the R63. Inspector
Sabani estimated that the bakkie travelled between one and four
kilometres towards Cookhouse before
it stopped in the middle of the
left hand lane. Sabani said that he also immediately alighted from
the vehicle and fired two shots
into the air. He, too, had shouted
“Stand still!” in isiXhosa. Having done this, Sabani went
round the back of the
police van to keep watch on the driver, who was
still sitting behind the steering wheel. Since Sabani’s
evidence relating
to what followed is critical, I quote my notes on
this part of his evidence verbatim:
“
The driver
alighted from the vehicle and tried to run away. As he attempted to
run he turned and attempted to run back to the car.
I thought he was
going to get a weapon or flee in the car. I then tried to shoot him
in his legs.
“Why? – To
prevent him from doing either of these things.
“Did you hit him?
– Yes.
“How many shots
did you fire? – Only one.
“Were any other
shots discharged? – No.
“So you fired
three shots in all? – Yes.
“
What else did you
see? – After the shooting he was instructed to come to the back
of the vehicle.”
[14] It is apparent from
the evidence that there is agreement on at least the following facts:
the bakkie was carrying stolen goods;
it was pitch dark where the
vehicles stopped; shots were fired in order to warn the occupants of
the bakkie. Apart from this, the
plaintiff’s version conflicts
in every material respect with that of both police officers. The main
conflicts relate to:
(i) the route taken by the bakkie before it
turned onto the Cookhouse road; (ii) the position of the two vehicles
when they halted;
(iii) the language used by the police officers when
they told the men not to run; (iv) the number of shots fired; (v),
and critically,
the plaintiff’s movements before he was struck
by the bullet.
[15] In my view, little
turns apart from credibility on the route followed by the bakkie
before it left Bedford and on its speed.
Both police officers
conceded that their pursuit of the vehicle did not constitute a
“chase” in the dramatic sense
of that word. I accept, in
the defendant’s favour, that on the probabilities the bakkie
took a short detour before leaving
Bedford, that the vehicle halted
on the left lane of the tarmac road, off the gravel, that the men
sitting on the load area immediately
jumped off and began running to
towards the bush to the right of the vehicles, and that these two men
immediately halted when the
first shots were fired and lay down in
the light of the police van’s headlamps. The number of shots
fired and the plaintiff’s
movements before he was struck
requires closer scrutiny.
[16] According to the
plaintiff, he heard a veritable fusillade of shots immediately after
he brought his vehicle to a halt. According
to him, one of the
policemen even returned to the police van to fetch a rifle when the
ammunition in his sidearm ran out. It seems
safe to say that this
evidence is exaggerated. On cross-examination, the plaintiff reduced
the number of shots to between eight
and ten. Captain Britz confirmed
in evidence that he had checked the ammunition register at the
Bedford police station the day
before he testified, and that this
indicated that Sgt Kahla’s issue was returned with 28 live
rounds and Inspector Sabani’s
with 27, indicating that they had
fired two and three shots, respectively. Capt Britz conceded that he
had no independent recollection
of the number of shots fired, and
that he was relying only on the records. It is noteworthy that these
records were not handed
up as evidence, in spite of Mr Cole’s
invitation to Sgt Kahla to locate the relevant records the day
before.
[17] However, in the
light of Inspector Sabani’s evidence that he had intentionally
shot at and hit the plaintiff, little
turns on the number of shots
fired. That fact eliminates the possibility that the plaintiff may
have been struck by one of a hail
of bullets fired indiscriminately
at the scene. The issue to be determined is whether, when Sabani
fired what he claimed was his
third shot at the plaintiff’s
legs the plaintiff was bent on returning to the bakkie and whether,
in these circumstances,
it was reasonable to use a firearm to
immobilise the plaintiff. On the plaintiff’s version, the
answer to both questions
is in the negative: he was shot before he
had left the bakkie and while he was in the process of surrendering
to the police. On
Sabani’s version, a shot at the plaintiff’s
person would have been reasonably necessary because he would have
ignored
several clear warnings, including shots, and could reasonably
have been suspected to have intended some desperate act by attempting
to dash back to his vehicle in the clear view of two armed police
officers who had already immobilised two of his companions. The
question is whether Inspector Sabani’s evidence is true.
[18] To begin with, I am
constrained to record that neither Capt Sabani nor Sgt Kahla was an
impressive witness. Each gave the impression
that he was trying his
best to ensure that his version would be consistent with that of the
other. For example, Sgt Kahla, who
testified first, was at pains to
deny that he had observed the plaintiff before Capt Sabani shot him.
On Kahla’s version,
this seems impossible. He was about eight
metres from the bakkie, which was in the glare of the police van’s
headlights.
Once the two men who had been on the back of the bakkie
had lain down in the road, Kahla would have had a clear field of
vision
up the road to the bakkie’s right. He said he merely saw
the driver’s door open and the driver alight and begin to move
across the road. It hardly bears mention that it is highly improbable
that one of two police officers faced with a gang of potentially
dangerous criminals would have focussed his attention on two of the
four without observing so obvious a development as the driver
(a
portly man) dashing across the road behind them, then immediately
returning to his vehicle. It is significant that in an affidavit
deposed to on the night of the incident Sgt Kahla stated that the
driver “het toe terruggekom en ek het hom ook bevel om
op die
grond to lê”. Sgt Kahla was also deliberately evasive
about his colleague’s position during the shooting,
and was
reticent about expressing a view on whether it was necessary in the
circumstances to shoot the plaintiff. On his statement,
it was
clearly unnecessary to do so.
[19] Under
cross-examination, the concise version of the shooting given by
Inspector Sabani in chief became confused. He was unable
to
satisfactorily explain the contradiction between his testimony that
he had deliberately aimed at the plaintiff’s legs
and the
statement in an affidavit, also deposed to the same night, that “I
fired two warning shots and the driver of the
vehicle wanted to run
away and another warning shot was fired and the bullet hit the tarmac
road recrochet (
sic
)
and hit the driver at the stomach”. That contradiction cannot
be attributed to the swiftness with which the scene unfolded
and the
passage of time after the incident, upon which Inspector Sabani
relied to account for his fuzzy recall. But more serious
is the
contradiction between Sabani’s account and the fact,
established by unchallenged expert medical evidence, that the
bullet
struck the plaintiff on the right side of the abdomen and passed out
on the left side.
2
This would have been impossible had the plaintiff returned to the
vehicle, as his left side would then have been exposed to Inspector
Sabani. The claim by both police officers that the plaintiff was
attempting to dash back to his vehicle can accordingly be ruled
out.
[20] Mr
Cole
submitted
that in the light of these improbabilities, the evidence of both
Inspector Sibani and Sgt Kahla should be rejected
in
toto
,
and the evidence of the plaintiff accepted. In the circumstances, I
am not prepared to determine the matter in that manner. I
accordingly
do so on the probabilities.
[21] Once it is accepted,
as I find, that the plaintiff was not attempting to run back to his
vehicle when he was struck by Sabani’s
bullet, the only
remaining possibilities are that when Sabani fired the shot the
plaintiff was moving away from his vehicle, as
Kahla’s evidence
seems to confirm, or that he was in the act of getting out of the
cab, as the plaintiff claims. Inspector
Sabani was unable to state
with certainty how far the plaintiff had moved away from his vehicle
when he fired the shot. Had the
bullet ricocheted, as originally
claimed, it would have followed an upward trajectory. According to
the medical evidence, the bullet
passed through the plaintiff’s
abdomen from the right to the left side at a downward angle of about
35 degrees. This is consistent
with the plaintiff’s evidence
that he was in the act of raising himself from a sitting position
when Sabani, who according
to the plaintiff was standing close by,
fired the shot. The plaintiff’s evidence relating to the
immediate sequel is also
consistent with that version and with the
evidence of Sgt Kahla. According to the plaintiff, he exclaimed that
he had been shot
and then wandered away from his vehicle until told
by Sgt Kahla to join the men lying on the road. He did so. Kahla
confirmed this.
Had Sabani’s version been true, Kahla would not
only have certainly seen the plaintiff dashing towards the bakkie. He
would
not have suddenly realised that the plaintiff was standing on
the edge of the road, as he claimed.
[22] Insofar as it is
possible to reconstruct the scene that unfolded from the evidence,
therefore, I find that the probable sequence
of events was as
follows. The plaintiff must have been aware for some time that he was
being followed by a police vehicle. When
ultimately he stopped, he
did so in the middle of the left hand lane of the Cookhouse road. The
two men sitting on the load of
wire jumped from the vehicle and
sought to make their escape into the darkness, but were brought to
heel by the warning shots of
the policemen. Soon after that, Sabani
approached the bakkie to apprehend the driver and the passenger in
the cab, while Kahla
kept the men lying on the road covered. When the
plaintiff opened the door of the cab, he was confronted by Sabani,
who by this
time had moved to the right of the police van and
approached the bakkie. By this time, the plaintiff would have heard
the earlier
warning shots and shouting, and would probably have been
aware that two of his passengers had been instructed to lie down on
the
road. It would have taken an exceedingly courageous or foolhardy
person to attempt a getaway dash in these circumstances. It may
well
be that the plaintiff moved some distance from the bakkie, perhaps in
a crouched position. But the probabilities favour the
plaintiff’s
claim that he intended surrendering and joining those who had already
been apprehended before he was struck by
Sibani’s bullet.
[23] The question
therefore arises whether in these circumstances it was necessary or
reasonable for Sabani to shoot the plaintiff.
As indicated, the
defence raised on the pleadings is unclear. The claim that Sabani
fired the shot “to protect himself from
imminent death”
suggests self-defence. Coupled with the averments that the shot was
intended as a warning and that the bullet
ricocheted off the road
surface, the plea could also encompass a denial of negligence. Both
defences can be ruled out in the light
of the evidence. At the end of
the day, it seems that the defendant’s defence can be described
as a form of necessity: Sabani
was doing his duty as a police officer
and it was necessary to shoot the plaintiff in the course of
apprehending persons suspected
of a criminal offence. Many of the
judgments (including
Mabaso
v Felix
1981
(3) SA 865
(A) and
Minister
of Law & Order v Milne
1998
(1) SA 271
(W)) to which Mr
Cole
referred
the Court concerned cases in which the plaintiff’s were killed
by defendants who sought to defend either their own
lives or the
lives of others. Had the plaintiff in this case been killed, the
defendant’s defence would not in the circumstances
have
withstood the principles laid down in those cases. However, I accept
that Sabani did not intend to kill the plaintiff. In
view of Sabani’s
concession that he aimed to injure the plaintiff, the question is
whether the use of non-lethal force in
the circumstances that
prevailed at the time in question was reasonable and justified.
[24] Although the
defendant did not rely in terms on section 49 of the Criminal
Procedure Act 51 of 1997, which governs the use
of force to effect
arrests, the provisions of that section equate broadly to the
requirements of the common law. Section 49 provides
that where a
person suspected of having committed an offence attempts to resist
arrest or flee, “an arrestor may, in order
to effect an arrest,
use such force as may be reasonably necessary and proportional in the
circumstances to overcome the resistance
or to prevent the suspect
from fleeing”. Once it is found, as I have found, that on the
probabilities the plaintiff intended
surrendering, the protection
afforded the defendant by section 49 falls away. Even if Sabani
genuinely believed that the plaintiff
intended fleeing or attacking
him, the defence would not hold because the test in cases of
justification is, at least in civil
matters, objective (Van der Walt
Delict
43). No
circumstances can justify the shooting of a person who is in the act
of surrendering, even if the person who fires the shot
is genuinely
unaware of that person’s intention.
[25] In the final
analysis, Mr
Rugananan
was
constrained to argue that Inspector Sabani and Sgt Kahla deserve
praise for apprehending copper wire thieves and recovering
the stolen
property. That may be so. But the issue in this case was whether
excessive force was used in carrying out the task.
It goes without
saying that, in a state governed by the rule of law, the police must
balance crime prevention with appropriate
restraint and respect for
the lives and physical well-being of even the most hardened criminal.
I merely note that it is common
cause that charges of theft against
the plaintiff have been withdrawn.
[26] I accordingly find,
and hold, that the defendant, upon whom the onus rested in this
regard (see
Felix
supra
),
has failed to prove on a preponderance of probabilities that, in
shooting the plaintiff, his servant acted reasonably, justifiably
or
on any other lawful ground.
[27] It follows that the
defendant is liable for such damages as the plaintiff is able in due
course to prove.
[28] The plaintiff is
entitled to his costs in the proceedings to date, including the
qualifying fees, if any, of Dr Jameson.
[29] The plaintiff is
declared a necessary witness.
________________________
J
G GROGAN
ACTING
JUDGE OF THE HIGH COURT
1
The merging of these defences is the primary reason I rejected Mr
Cole’s
argument
that the plaintiff should commence leading evidence.
2
This testimony was given by Dr C Jameson, who examined the plaintiff
some time after the incident. Although Mr
Rugananan
declined
to cross examine her, he made the startling submission in closing
argument that the Court should reject Dr Jameson’s
evidence.
While I accept that the Court is not bound to slavishly accept
expert evidence, I note that Dr Jameson testified that
she has
examined untold numbers of gunshot wounds and that she had
absolutely no doubt about the correctness of her identification
of
the entry and exit wounds. To reject that evidence on the basis of
the belated suggestion that it might be questionable because
of the
passage of time between the shooting and the examination would be a
bold step indeed. I decline to take that step.
19