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[2016] ZAECPEHC 31
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Ambraal v Minister of Police and Another (2251/2011) [2016] ZAECPEHC 31 (12 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No: 2251/2011
In
the matter between:
LUVERN
CARMEN AMBRAAL
Plaintiff
and
THE
MINISTER OF
POLICE
First
Defendant
CONSTABLE
RYAN ALEXANDRA
Second
Defendant
JUDGMENT
REVELAS
J
:
[1]
During the early hours of
Friday, 05 June 2010, at about 01:30, the plaintiff
(“Luvern
Ambraal”,
or
“
Ambraal”
)
and the second defendant (“
Ryan
Alexandra”,
or
“
Alexandra”)
were both shot and
injured during an incident which occurred in Bloemendal, Bethalsdorp.
Both were the respective drivers of two
vehicles, the one, driven by
Alexandra, in hot pursuit of the other, driven by Ambraal, when the
shooting occurred.
[2]
Following this incident,
Ambraal instituted an action for damages against the defendants.
Her first claim is against the first
defendant and premised on the
averment that the shooting was an intentional assault on her,
committed by Alexandra. Her second
claim, in the alternative,
is against Alexandra and premised on the averment that the shooting
was negligent in the circumstances.
[3]
By the agreement between the
parties an order was made in terms of Uniform Court Rule 33(4)
wherein the issues pertaining to the
merits and the defences
(inclusive of
volenti non
fit iniuria
and
apportionment) are to be determined separately from the questions
pertaining to quantum, if any should arise, which are to be
postponed
for determination at a later date.
[4]
Several facts were common
cause, or not in dispute in this matter and, to a large degree, the
versions of Ambraal and Alexandra
coincided with each other.
It was not in dispute that on the evening in question, Ambraal
and Inspector Hela
(“Hela”)
were part of a road
traffic task team in the Bethelsdorp area, manning a roadblock.
Both Ambraal and Hela are traffic officers
and were usually stationed
in Queenstown where they reside. At the relevant time they were
deployed in Port Elizabeth for the duration
of the World Soccer Cup
Series hosted in South Africa. The purpose of the roadblock set up by
the traffic officers that night was
to assess vehicle fitness and
identify persons who were found driving under the influence of
alcohol, arrest them and take them
to the Bethelsdorp Police
Station.
[5]
Ambraal, as the driver
assisted by Hela, was tasked with ferrying such persons from the
roadblock to the police station. As
it turned out, there was
only one such case. For the purpose just mentioned, and their
general transport requirements while
on duty, Ambraal was allocated a
vehicle rented by the traffic department for the duration of the
World Cup. This vehicle,
a white Polo, was therefore not an
official vehicle and had no markings to indicate that it was under
the control of traffic officials.
[6]
The two traffic officers were
unfamiliar with Port Elizabeth and its surrounding areas and suburbs,
which includes Bethelsdorp.
At the relevant time they were
stationed in Struandale. On the night in question both officers
wore blue standard traffic
officer uniforms with jackets made of a
bright reflective lime green material, bearing the usual words and
signage found on traffic
officers’ uniforms. These
jackets were highly visible. They also wore standard blue caps
usually worn by traffic
officers. Both were armed with 9mm
Glock pistols and were issued with ammunition the morning before the
incident.
The
Plaintiff’s Case
[7]
Both Ambraal and Hela
testified during the trial and their version was the following:
After completing their duties at the
roadblock, Ambraal and Hela
decided to drive to the Stanford Road filling station, also near the
Bethelsdorp Police Station, to
purchase some refreshments. On
their way there, they noticed the driver of a dark blue Ford Focus
crossing a three-way stop
street, without stopping. They
decided to pull up next to the Ford and question its driver and
assess his sobriety.
Ambraal flickered the headlights of the
Polo, blew its horn and Hela gestured at the driver with his hand
outside the window to
pull over. Both vehicles stopped almost
immediately thereafter. It is in dispute as to how the Ford was
brought to
a standstill. Hela got out of the Polo and approached the
Polo. Alexandra had also immediately got out of the Ford and
walked
towards the Polo, brandishing his firearm. That was
common cause. Also common cause was that Hela, upon seeing that
the driver of the Ford (Alexandra) had a firearm in his hand,
immediately jumped back into the Polo and urged Ambraal to give
chase, since the man who got out of the Ford was armed. Ambraal
then sped off, her intention being to get away as soon as
possible.
Alexandra got into his Ford and pursued the Polo. A veritable car
chase was in progress. Both vehicles reached speeds
of 160 to 180
kilometres per hour.
[8]
Hela and Ambraal heard a
gunshot being fired soon after they drove off. At that point she
believed that they were going to be killed
by whoever was following
them. She described how she lowered herself below the steering wheel,
peeping over the dashboard while
speeding in a zig zag fashion to
avoid being shot. She just wanted to get to Struandale where she and
Hela were based. As they
reached Uitenhage Road a second bullet was
fired and Ambraal realized she was struck in the head. She then
instructed Hela
to return fire. He fired two shots at the
Ford leaning out the passenger window. It is common cause that
one
of the bullets fired by Hela hit Alexandra in the jaw and
penetrated his lip.
The
Defendant’s Case
[9]
Alexandra and one of his
passengers, Eugene Jacobs, testified on behalf of the defendants.
Alexandra was not on duty on the
evening in question. He and
his girlfriend had gone out for dinner and to see a film at
Greenacres. Thereafter, whilst
still with his girlfriend,
Alexandra received a phone call from a family member, the husband of
his cousin, Eugene Jacobs.
The latter required transport from
Bloemendal (the area where Ambraal caused Alexandra to stop) to
Arcadia. Alexandra dropped
his girlfriend at home and fetched
Jacobs. The latter’s brother, Vivian and two other men
wanted a lift as well.
All five men got into the Ford with
Alexandra driving. While still in Bloemendal, at the stop
street in question, Alexandra
did not stop because, according to him,
Bloemendal is a high risk area as far as criminal activity is
concerned.
[10]
Alexandra admitted that the
traffic officers flickered the lights of the Polo, but did not hear
them hoot. He denied that
Hela gestured that he stop and pull
over onto the gravel. Alexandra testified that the driver of
the Polo tried to push him
off the road, forcing him to stop and then
parked right in front of him, preventing him from passing. As
the passenger of
the Polo alighted turning sideways, Alexandra said
he saw a firearm in the man’s (Hela’s) hand. He did
not however,
notice that Hela, was wearing a traffic officer’s
uniform. He believed that the persons in the Polo were intent
on
hijacking his vehicle. He testified that he accordingly took
his service pistol, approached the Polo and shouted “
Police!
Police!”
. He
then took out his firearm from its holster and fired two warning
shots.
[11]
When the Polo sped off,
Alexandra decided that he would follow it. He said the reason
for his pursuit of the Polo was to obtain
its registration number and
alert the Police Radio Control Centre of, what he perceived as an
attempted hijacking. Piet
Jonkers and Eugene Jacobs, two
of the five occupants of the Ford, managed to record the registration
number.
[12]
Alexandra disputed Ambraal’s
evidence that he fired the first bullet in this incident.
Alexandra’s evidence is
that it was only once he was struck by
a bullet in his jaw, when they were travelling on Uitenhage Road that
he decided to retaliate
to protect those in his vehicle and then
fired at the Polo. According to him, he was unable to
phone the Police Radio
Control Centre because his cellphone fell out
of his hand when he was shot in the lip, and could in any event not
speak on the
phone, due to his injury. In the photographs depicting
the Polo’s rear after the shooting incident, one can see two
openings
in the shattered glass, diametrically spaced and each
directly behind the two front seats of the Polo.
[13]
Of the four passengers in
Alexandra’s Ford, only one, namely Eugene Jacobs, testified
during the trial. Eugene’s
brother (Vivian Jacobs), Piet
Jonkers and Pom Rautenbach were the other passengers. All four
passengers who were in the Ford
that night made police statements
regarding the incident. The testimony of Rautenbach, if
called, would not have assisted
either party’s case since he
stated he “
became
drunk”
and slept
through the whole episode. When they arrived at Mercantile Hospital
where Alexaandra was admitted, the other passengers
woke Rautenbach
up from his deep sleep. The two Jacobs brothers and Piet
Jonkers corroborated Alexandra’s version that
the first shots
were fired from the Polo.
The
Evidence
[14]
The most important question
raised was whether Hela fired the first shot or not. During
cross-examination of Hela it was even
suggested that Hela, and not
Alexandra may have shot Ambraal. I may just digress here to point out
that such a scenario was not
supported by the evidence presented.
[15]
Another question relevant to
the evaluation of the conduct of the persons involved, is whether
Hela had a firearm in his hand when
he got out of the Polo.
Hela insisted that his firearm remained in its holster.
Alexandra was adamant that Hela had
a firearm, but curiously, that he
did not notice what Hela was wearing. Both Piet Jonkers and
Eugene Jacobs said in their
statements that they noticed that Hela
was wearing reflective clothing and that Hela had “
something
in his hand”
when
he got out of the vehicle.
[16]
It is also important for
determination of this case is, whether Alexandra made it known to the
traffic officers that he was a policeman.
Hela and Ambraal said
they never heard Alexandra shout “
Police!
Police!”
when he
walked towards their vehicle. Alexandra was adamant that he had
uttered these words loudly and, to bolster this statement,
he
testified that he was a shooting range instructor and as part of his
duties he had to shout and communicate clearly with his
colleagues.
He added that he had a carrying voice.
[17]
None of Alexandra’s
passengers, who in their statements, corroborated his version in all
material respects, mentioned that
Alexandra uttered these words.
Alexandra did not make a statement to the police, but when his
version was traversed during
cross-examination, he omitted to mention
it again. Counsel for Ambraal put to him that his omission was
an indication that
he did not shout out the warning as he said during
his evidence in chief.
[18]
In my view, if Hela had heard
these words, he would not have been as shocked as he alleged he was,
and he would certainly have told
Ambraal if he thought the driver of
the Ford was a policeman. In all likelihood, she would then not have
sped away in the manner
she did.
[19]
There were also mutually
exclusive versions as to how the traffic officers managed to get
Alexandra to stop his Ford. According
to Alexandra and Jacobs,
the driver of the white Polo tried to push the Ford off the road,
overtook it, forced it to stop and then
cut off its progress by
parking in front of it, coercing him to stop. This account
suggests that the approach was aggressive,
certainly as far as
Alexandra was concerned. On the other hand, Ambraal and Hela
described a more civil scenario wherein
the driver of the Ford was
persuaded to pull over and stop on the gravel with gestures by Hela
and flickering of headlights and
hooting. Ambraal and Hela also
testified that they did not hear any warning shots. They
believed they were directly
shot at.
Analysis
[20]
Since the Polo had no
markings on it and given the area and time of night, it may have been
reasonable for Alexandra to suspect
that the occupants of the Polo
were up to no good. It is also likely that Alexandra was
angered by the manner in which Ambraal
coerced him to stop and he
went on the offensive.
[21]
In evaluating the evidence
regarding the events preceding the car chase, it must be borne in
mind that neither Ambraal nor Hela
never spoke to Alexandra. Hela
immediately jumped back into the safety of the Polo when Alexandra
approached him. Alexandra, at
that point, had the upper hand in the
situation. In my view, he overreacted by following the Polo.
There was
no evidence presented which would support a finding that
Ambraal and Hela behaved in a manner that required Alexandra to use
force
against them. Alexandra was armed and clearly did
not fear them. They feared him and therefore they fled.
That was a reasonable inference in the circumstances.
[22]
Counsel for Ambraal
emphasized the fact that Vivian Jacobs had stated in his statement
that the shots were fired after the registration
number and been
taken down when they were “
in
the vicinity of the fire station”
.
The inference sought to be drawn was that Alexandra’s testimony
about the reason for chasing the Polo, i.e. to secure
registration
number, was untrue, since the pursuit of the Polo continued onto
Uitenhage Road when it was no longer justified.
It was
submitted that the defendants’ failure to lead the evidence of
Vivian Jacobs, meant that the inference least favourable
to the
defendants’ case, must be accepted. That submission is
properly made and I respectfully agree with it.
[23]
The two symmetrically
opposite openings in the glass rear window of the Polo, as shown in
the photograph (referred to hereinbefore)
Alexandra’s version
that he fired only in the direction of the Polo, has to be
discounted. The symmetrical spacing
of the openings in the
glass pane of the Polo suggests that the bullets were discharged from
Alexandra’s firearm with measured
accuracy. This tends to
support the proposition that Alexandra was uninjured, rather than
injured, when he fired shots at
the Polo, and that he probably fired
the first shot.
[24]
In addition, Alexandra was an
evasive witness who qualified many of his answers with the words “
as
ek reg kan onthou”
,
suggesting an attempt to avoid giving straight answers to certain
questions. He was also an impatient witness, given to
avoiding
answering questions by simply stating that he did not understand the
question. Attempts to clarify such questions
were to no
avail. I gained a strong impression that he deliberately
did not pay any attention to questions he regarded
as detrimental to
his version. I do bear in mind that Alexander’s version was
corroborated by Eugene Jacobs and the affidavits
deposed to by the
latter, Piet Jonkers and Vivian Jacobs. Yet, it must be noted that
the affidavits, or rather police statements,
were taken during a
police investigation into possible charges of attempted murder
against Alexandra.
[25]
Ambraal and Hela, save for a
few “
modest
discrepancies”
(as
put by counsel for Ambraal), closely corroborated each other and they
did not give the impression that they were untruthful
about the
events of that night.
[26]
Shooting at the occupants of
the Polo was unjustified, on the facts of this case. Two of
Alexandra’s passengers had
already secured the registration
number of the vehicle. There was accordingly no justification for a
continued pursuit of the Polo
after reaching Uitenhage Road, nor for
firing shots. Alexandra could also not reasonably have believed
that his life was
in danger. His testimony that he followed the
Polo merely for purposes of obtaining its registration number, is not
even
borne out by his plea. Therein the purpose of the pursuit
was stated as being an attempt to affect an arrest and that the
force
employed (the shots fired) was proportionate for that purpose.
[27]
The defendants’ version
that Hela was brandishing a firearm can only be accepted if I reject
Hela’s evidence that he
never removed his firearm from its
holster when he got out of the car. Firstly, Ambraal corroborates his
version. Secondly, Hela
and Ambraal’s evidence as a whole had
the ring of truth about it. A third consideration is that, in his
initial plea Alexandra
pleaded that Hela “
alighted
from the vehicle”
brandishing
an object in his hand “
which
appeared to be a firearm
”.
In his later amended plea
this was changed to “
alighted
from the vehicle
brandishing
a firearm
,
(alternatively brandishing an object in his hand which appeared to be
a firearm)”.
Counsel
for Ambraal submitted, correctly in my view, that if it were indeed
the defendants’ case all along that Hela brandished
a firearm,
his plea would have reflected that without qualification, from the
outset.
Volenti
Non Fit Iniuria
[28]
This defence, which ought to
be applied with great caution
[1]
can only succeed if a defendant is able to prove that the plaintiff
had knowledge of, appreciated the extent of, and consented
to the
risks attached to the act(s) of that defendant. It cannot be
disputed that Ambraal and Hela were on duty and wore
reflective
clothing. Neither of them consented to being shot, least of all
Ambraal. The defendants did not prove any
of the elements that
would constitute the defence in question. Accordingly, the
defence of
volenti non fit
iniuria
must fail.
Contributory
Negligence
[29]
It was submitted that
Alexandra had no reasonable grounds to suspect that Hela and Ambraal
were attempting to hijack or rob him.
Given that they were
driving in an unmarked vehicle such a belief was not unreasonable.
This fact is relevant to the
events that followed that night because
in retrospect, there was no need for a confrontation of the kind
witnessed that night if
Ambraal and Hela were in a proper, marked
traffic vehicle. That however, did not justify Alexandra’s
willful conduct. The
two traffic officers were on duty dressed in
uniform. They were entirely justified in pulling Alexandra off the
road. The first
thing Hela and Ambraal did when they sensed danger
was to flee. They believed that they were going to die.
In the circumstances
this belief was not unfounded. In my view, there
was no contributory negligence on Ambraal’s part.
Conclusion
[30]
Alexandra testified that he
had excellent eyesight. He was accompanied by at least four
adult men, even though one was asleep.
With the headlights of
the Ford shining onto the rear of the Polo, its registration number
must have been relatively easy to secure
and once that was done here
was no need for further pursuit, let alone a need to shoot at
occupants of that vehicle.
Even if Hela fired the first
shot, which I do not believe happened, there was still no need for
Alexandra to retaliate. Alexandra
acted irresponsibly and
intemperately. He thus endangered the lives of his own passengers and
could have killed Ambraal if his
bullet had not lodged itself in her
skull. The subsequent continued pursuit of the Polo and the
firing of shots at its occupants,
struck me as acts of aggression or
bravado, rather than an exercise to obtain the Polo’s
registration number. The shooting
was therefore unjustifiable in the
circumstances.
[31]
Alexandra stated that he
acted in his capacity as a police officer on that evening. This was
not disputed. The first defendant
did not plead that Alexandra
was acting on a frolic of his own it. Accordingly, the first
defendant is vicariously liable
for the unlawful and negligent
actions of Alexandra on the evening in question.
[32]
For all the aforesaid reasons
the first defendant is liable to pay for the damages suffered by the
plaintiff.
[33]
Order
1.
The first defendant is liable
to compensate the plaintiff for such damages as the plaintiff may
prove she had suffered during the
shooting incident that occurred on
5 July 2010.
2.
The first defendant is to pay
the plaintiff’s costs of suit.
____________________
E
REVELAS
Judge
of the High Court
Appearances
:
For
the plaintiff, Adv S H Cole instructed by Ngqakayi & Ngqakayi
Inc, Port Elizabeth (Ref.: DJM/ub/CIV1942/10)
For
the defendants, Adv C Mey instructed by The State Attorney, Port
Elizabeth (Ref.: Mr Lategan 1245/2011/B)
Date
heard: 05 May 2016, 06 May
2016 and 16 May 2016
Date
delivered: 12 July 2016
[1]
Santam Insurance Co Ltd v
Vorster
1973 (4) SA 765
(A) at 777 and
Netherlands
Insurance Co of SA Ltd v Van der Vyver
1968
(1) SA 412
(A) at 421.