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[2012] ZAECPEHC 50
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Joseph v Minister of Police (1379/10) [2012] ZAECPEHC 50 (16 August 2012)
Reportable/Not
Reportable
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT
ELIZABETH
Case No: 1379/10
Date Heard: 3/08/2012
Date Delivered: 16/08/12
In the matter between
LEONARD JOSEPH
….................................................................
Plaintiff
and
THE MINISTER OF POLICE
…................................................
Defendant
JUDGMENT
REVELAS J
[1] The plaintiff instituted an
action against the defendant for damages suffered as a result of an
injury he had sustained when
a policeman allegedly assaulted him.
According to the plaintiff, a policeman travelling in a vehicle
caused the vehicle to collide
into him on purpose while he was on
foot, and subsequently, fired at him for no reason with his handgun.
The bullet struck the
plaintiff in the left buttock. The plaintiff
claims for general damages and
contumelia
in the amount of
R150 000.00, from the defendant.
[2] It is common cause that the
incident in question occurred on Tuesday, 31 March 2009 at about
17h00 in Kyga, Greenbushes, Port
Elizabeth. Although it is in dispute
that the policeman in question, Constable Pule Paul Disenyane
(“Disenyane”) drove
his vehicle into the plaintiff on
purpose, it is common cause that the plaintiff somehow found himself
on top of the bonnet of
Disenyane’s red City Golf for an
instant. Almost immediately thereafter, Disenyane alighted from the
vehicle and chased the
plaintiff and fired a shot with his gun.
Disenyane thereafter took the plaintiff, accompanied by his mother,
Mrs Rosie Avery, to
the Provincial Hospital in his vehicle. There the
plaintiff spent more than an hour, after which Disenyane fetched him
and his
mother and took them home again. Disenyane denies that the
bullet discharged from his gun struck the plaintiff or that the
plaintiff
was injured.
[3] Even though there were facts
which were either common cause or undisputed, the two versions
pertaining to the events which preceded
the plaintiff’s visit
to the hospital differ from each other in many, material respects.
The Plaintiff’s Version
[4] The plaintiff testified that on
the afternoon in question he visited his cousin, Shane May (“May”)
at the latter’s
parental home. The plaintiff’s mother
lives in the neighbouring house. After a few drinks (the two of them
shared three quarts
of beer), the plaintiff decided to return to his
home which is also in Kyga, but some distance away. He did not live
with his mother.
May accompanied him to the gate where they parted
ways. As he was walking down the road, the red City Golf driven by
Disenyane
drove up from behind and bumped him, causing to fall on its
bonnet and bounce off again.
[5] Because the driver was known to
him as “Paul” (Disenyane) who regularly visited the area,
and he noticed that he
had a fire-arm, he rose to his feet and ran
away from him. Then he heard a shot, fell down and noticed that he
was struck by a
bullet in the left buttock. Shortly thereafter his
mother arrived. Disenyane offered to take the plaintiff to hospital,
which offer
he vehemently resisted. He only relented after the
intervention of his mother, who insisted that accepting the offer
would expedite
their arrival at the hospital. May corroborated the
plaintiff’s version of events until the plaintiff gave chase.
He witnessed
the collision with the red golf but after the plaintiff
had allegedly been shot, he had gone into his house and remained
there.
[6] The plaintiff’s mother was
called from her house and found the plaintiff in an injured state on
the ground. She corroborated
the plaintiff’s version that he
initially resisted being taken to hospital by the policeman, but
eventually gave in to her
pleas to get into the car. In the vehicle,
she said, the plaintiff was in a distressed state and his behaviour
in the vehicle was
somewhat unruly. She said he “het so
aangegaan” that she could hardly talk to him.
[7] The plaintiff and his mother
both testified that the plaintiff had repeatedly asked Disenyane
inside the vehicle on their way
to hospital why he had shot him. The
latter allegedly said (more than once) that he did know why he did
it. He however offered
to pay them R2000.00 for any medical expenses.
The plaintiff said he did not want the money. Later the plaintiff’s
family
instructed an attorney who advised them that the plaintiff
would be able to claim for more. That particular attorney did not
pursue
the matter and the plaintiff then instructed his present
attorney.
[8] A criminal charge (attempted
murder) was levelled against Disenyane four months after the
incident. The plaintiff and his mother
denied that any attempts by
them to blackmail the policeman or that they laid the charges because
he did not want to pay them.
The Defendant’s Version
[9] According to Disenyana, he was
driving less than ten kilometres per hour at the time, keeping his
eye on two male suspects in
overalls who were walking in the street
into which the plaintiff had just entered. These men were suspected
of illegally selling
fire-arms and he found himself at that
particular place, in response to a tip received from an informant.
While he was driving
in the road the plaintiff suddenly appeared and
moved onto the fender of his vehicle hoisting himself up onto it. The
plaintiff
then smiled, slid over and down the bonnet, and immediately
started to run in the direction of the two suspects announcing his
presence by shouting: “Police!”
[10] In Disenyane’s view the
plaintiff and the two suspects were in cahoots and that the
plaintiff, who knew him from before,
jumped on his bonnet to distract
his attention from the suspects and to warn them, thereby
facilitating their escape. Disenyane
then alighted from the vehicle,
placing his hand on his gun which was in a holster on his hip and the
plaintiff gave chase, and
he followed him. Why he chased the
plaintiff, and not the suspects is unclear. At this point the
plaintiff was running in front
of him to his left, on the gravel
verge. Disenyane ran on the tar surface of the road. The two suspects
moved in the same direction,
but on the right (opposite) side of the
road, some distance - about seventeen meters which increased to forty
meters - ahead. Just
before they covered most of the aforesaid
distance, one of the suspects turned around and pointed a fire-arm at
him. In self-defence,
Disenyane said, he fired a shot at this
suspect. The two suspects then took flight and managed to escape
amongst some dwellings
in a nearby squatter camp. He denied that this
bullet discharged from his fire-arm could have hit the plaintiff.
[11] Disenyane knew this to be the
case because afterwards he looked at the plaintiff’s left
buttock and saw no bullet hole
in the plaintiff’s light blue
jeans, and neither were there any bloodstains on them. When the
plaintiff travelled on the
backseat of his vehicle to the Provincial
Hospital, no blood leaked onto his seats either. Disenyane testified
that what he did
however see on the plaintiff’s left buttock
was an old scar.
[12] Disenyane testified that soon
after he had left Mrs Avery’s home, that he started receiving
calls, (several of them),
from people claiming to be representing the
plaintiff and demanding money from him. At first the plaintiff wanted
R20 00.00
he said then the following day, a man purporting to be
the plaintiff’s attorney, threatened to lay criminal charges
against
him if he did not pay R20 00.00. According to him, other
callers also attempted to blackmail him in that fashion. This was
denied by the plaintiff and his mother. Eventually he could only
recall two calls made to him, other than that of the plaintiff.
[13] Another aspect in dispute was
Disenyane’s insistence that the plaintiff’s mother had
berated her son in the vehicle
about his conduct. She allegedly told
him that the incident was a sign of God, that he was lucky to be
alive. She begged him to
leave drugs and bad friends and turn to God.
Collectively, the words resemble a little sermon of sorts which
Disenyane also quoted
verbatim
in his warning statement. Ms
Avery allegedly also included in her words to her son, her opinion of
what a good man Paul (Disenyane)
was, and not only once.
[14] As far as Disenyane was
concerned, the plaintiff concocted his version and the plaintiff’s
mendacity was motivated solely
by avarice. It was precisely “this
type of conduct” according to Disenyane, which undermined the
morale of policemen
and prevented them from diligently carrying out
their duties.
Medical Records
[15] No witnesses were called to
testify about the plaintiff’s injuries. The medical
practitioner who was on duty in the casualty
award when the plaintiff
was admitted, specifically recorded that a bullet wound was indicated
and the plaintiff’s undergarments
and jeans were bloodstained.
He noted an entry wound and exit wound on the plaintiff’s left
buttock, causing a haematoma.
Dry dressings of packed gauge were
applied to the wounds. Painkillers (Brufen tablets) were prescribed
for pain.
[16] Disenyane also disputed that
the plaintiff had to be admitted to hospital in a wheelchair. This is
contradicted by the medical
records in which it was recorded that he
was admitted to hospital in a wheelchair. The medical diagnosis on
arrival at the hospital
was noted as “Gunshot: left buttock”
and “Entry and exit wound noted with bleeding”.
Discussion
[17] Apart from being destructive of
Disenyane’s denial that the plaintiff was injured, the medical
records are also significant
for another reason. They show that the
plaintiff had spent more than two hours (from 18h30 to 20h35) at the
hospital on the evening
in question. Disenyane’s testified that
only fifteen minutes after he had dropped off the plaintiff and his
mother at the
hospital, Mrs Avery phoned him to fetch them. Clearly
this was proffered untruth to support his version that the plaintiff
never
sustained any injuries. Disenyane’s persistence with this
version that the plaintiff was never wounded and had lied about
his
injuries, is astonishing, given the irrefutable evidence to the
contrary.
[18] The plaintiff and his witnesses
were Afrikaans speaking and their evidence had to be translated into
English for the benefit
of counsel for the defendant. When asked to
repeat what was allegedly said by Ms Avery to her son in the vehicle,
in Afrikaans,
Disenyane was unable to answer. Then, after a pause, he
said that they spoke “fluent English” to each other in
the
car on their way back. Disenyane’s rendition of Ms Avery’s
words, seemed rehearsed and contrived particularly since
it is
unlikely that the plaintiff’s mother would have spoken English
to him. Also, Disenyane’s ability to remember
every word used
after four months, which is when he made his statement to the police,
seems rather improbable.
[19] It is not possible to make an
accurate finding in this judgment about the circumstances under which
the plaintiff landed on
the bonnet of the policeman’s car. The
plaintiff submitted that the evidence about the two suspects on the
other side of
the road was a fabrication designed to dissemble and
escape liability in this matter. That may very well be. Disenyane’s
statement to the police differed from his testimony in court, in that
he said in his statement that he was monitoring three suspects,
of
which the plaintiff was one. In court he placed the plaintiff walking
alone on the opposite side of the road. His explanation
for this
discrepancy was far from satisfactory. Given the blatant lies he told
to trivialize the plaintiff’s injuries and
exculpate himself,
it is very tempting to reject his version about the two suspects
entirely.
[20] On the other hand, one cannot
accept that Disenyane, for no reason whatsoever, and on purpose,
knocked the plaintiff over with
his car. Perhaps it was an accident,
perhaps the plaintiff did jump onto his vehicle to help the suspects.
When Disenyane testified
about how he had followed the plaintiff and
the bullet was fired, he explicitly refused to concede that the one
suspect never fired
a shot from the gun allegedly pointed at him. I
therefore had to consider whether or not a bullet discharged by the
suspect did
not perhaps hit the plaintiff. Such a scenario is hardly
possible, since the so-called suspects were far ahead of the
plaintiff
(on Disenyane’s version) and such a bullet, if fired
by one of them, would have struck the plaintiff on the front of his
person, not his buttock.
[21] There was only one shot fired,
and that was by Disenyane who was behind the plaintiff. He was
ideally placed to have shot the
plaintiff in his left buttock. He
said the suspects were to his right. Therefore, he could not have
aimed at them when he fired
the shot, because the bullet hit the
plaintiff who was to his left. The entry wound, slightly lower, to
the right of the exit wound
supports that assertion. Because
Disenyane denied that the plaintiff was wounded at all, or that he
had shot the plaintiff, the
defendant is unable to prove in what
circumstances the shot was fired.
[22] Counsel for the defendant
argued that since
dolus eventualis
as pleaded in plaintiff’s
particulars of claim was not proved, and negligence was never pleaded
in the alternative, the defendant
was not liable. I disagree. On the
evidence available, the plaintiff was shot for no reason by a member
of the police services,
admittedly acting in the scope and course of
his duties. On Disenyane’s version of events, he must have shot
the plaintiff
in anger for warning the suspects of his presence in
the neighbourhood.
[23] Even if the plaintiff had done
something which offended Disenyane, or breached the law in some way,
Disenyane was not entitled
to shoot the plaintiff solely to prevent
his escape, or because he was annoyed with him. Since he was such an
untruthful witness
about what really happened, there is no
explanation for the shot. The fact remains, that on the plaintiff’s
version, the
shot was unjustified and therefore the plaintiff is
entitled to his damages.
Quantum
[24] An appropriate award for
general damages and
contumelia
is the next matter for
determination. In my view, the plaintiff and his mother embellished
their evidence as to the seriousness
of his injury and the period
(eight months) during which he was incapacitated. The plaintiff
sustained a soft tissue injury which
required no stitches or further
surgery. At the hospital his wound was cleaned and dressed and he was
discharged. He was not even
given any crutches. I accept that he must
have had some discomfort for a while and that the wound would have
caused him intermitted
pangs or stabbing sensations. He fully
recovered and suffered no loss of amenities for any significant
period. He is sometimes
made aware of the wound by some sensations in
it, but these do not amount to discomfort. In the circumstances of
this case, an
award of R150 000.00 for damages strikes me as
extravagant.
[25] In the matter of
April v The
Minister of Safety and Security
[2008] JOL 21681
(E) the
plaintiff was on his way to work when he struck by two bullets fired
by the police. One struck him in the front of the
right thigh just
above the knee, and the other in the left lower back. The first
bullet had fragmented with a large portion thereof
ambedded the head
of the fibula, which had to be surgically removed. The second bullet
caused an entrance wound through the gluteus
muscle of the left
buttocks which caused a compound fracture of the left ileum, before
it exited in the left anterior inguinal
area, also requiring surgery.
The plaintiff was treated for pain with pethidine (a very strong
drug) and after three days he was
discharged from hospital on
crutches. Three months later he still walked with a limp. The medical
doctor who testified at the trial
was of the opinion that the
injuries that would have caused the plaintiff pain of moderate
severity for seven to ten days. A clinical
psychologist also
testified about severe psychological complications. In addition the
court found a high degree of
contumelia
which justified a
substantial award. He was awarded R110 000.00 (R136 000.00
in present day terms) for general damages.
[26] In the matter under
consideration no medical or expert evidence was presented as to the
nature of the plaintiff’s injuries.
They are however far less
serious than those suffered in
April’s
case. I will
accept that the plaintiff suffered a moderate degree of pain and
discomfort for, at best, for four weeks. He testified
that his wound
required changes of dressings for a month. I will also take into
account the seriousness of the assault and that
it involved some
measure of
contumelia
, in respect of which there is a tendency
of the courts to award higher amounts than was previously the case.
Having regard to some
other cases I was referred to, where plaintiffs
suffered similar injuries but were awarded far less than claimed in
this matter,
for more serious injuries, I have concluded that
R70 000.00 is a reasonable award in the circumstances.
[27] Consequently, the following
order is made:
1. The defendant is to pay damages
to the plaintiff in the amount of R70 000.00, with interest
thereon at the prescribed rate
from a date fourteen days from the
date of judgment to date of payment, together with costs on the scale
as between party and party
and interest thereon at the present rate
from a date fourteen days from the date of the taxing Master’s
allocated to the
date of payment.
___________________
E REVELAS
Judge of the High Court
Counsel for the Plaintiff : Adv S
Potgieter
Port Elizabeth
Instructed by : Carol Geswindt
Attorneys
Port Elizabeth
Counsel for the Defendant : Adv D
Smith
Port Elizabeth
Instructed by : State Attorneys
Port Elizabeth
Dates Heard : 1-3 August 2012
Date Delivered : 16 August 2012