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[2019] ZAECPEHC 71
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Minister of Police v Jack (1100/2014) [2019] ZAECPEHC 71 (17 October 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 1100/2014
In
the matter
between:
MINISTER
OF
POLICE
Applicant
And
JEANETTE
JACK
Respondent
JUDGMENT – APPLICATION FOR
LEAVE TO APPEAL
BESHE
J:
[1]
This is an application for leave
to appeal against my judgment in which I found in favour
of the
plaintiff. I found that the plaintiff had succeeded in showing that
the defendant was liable for the damages she suffered
to her right
eye.
[2]
The parties will be referred to
as per their appellation were during the trial.
[3]
At the stage when the trial got
underway, the parties had narrowed the issues to allegations
that are
contained in paragraphs 4 and 5 of the plaintiff’s particulars
of claim. Those allegations being the following:
“
4.
On or about 15 August 2012, and on, at or near Bantom Road,
Kwanobuhle, Uitenhage,
a member of the South African Police Services
(“SAPS”), whose further particulars are unknown to the
Plaintiff, wrongfully
and unlawfully, and intentionally, shot the
Plaintiff with a rubber bullet / projectile which struck her above
the right eye,
alternatively,
unlawfully and negligently,
discharged a firearm, discharging rubber bullets / projectiles, in
the direction of the Plaintiff,
and in so doing the Plaintiff was
shot above her right eye, as aforesaid.
5.
In respect of the alternative claim, the said member of the SAPS
acted negligently
and unlawfully in that when he discharged his
firearm he knew, alternatively, should have known:
5.1. of
the presence of the Plaintiff;
5.2.
that the Plaintiff could be struck by the rubber bullet / projectile
so discharged from the said
firearm, by the aforesaid member of the
SAPS, if he discharged the same in the direction of the Plaintiff;
5.3
that the Plaintiff would be injured if struck by the said rubber
bullet / projectile.”
[4]
Plaintiff’s claim for
damages was for a sum of R450 000.00. A day preceding the
commencement of the trial, defendant admitted / conceded the quantum
of damages to be the sum of R204 968.00.
[5]
Neither of the parties’
ophthalmic experts could determine, having assessed the plaintiff’s
injury to the eye, what caused the injury. Both experts were of the
view that the injury could have been caused either by a discharge
of
a rubber bullet or by a stone.
[6]
After hearing testimony from six
(6) witnesses, five (5) in support of plaintiff’s
case and one
(1) in support of defendant’s case, I found in favour of the
plaintiff.
[7]
Warrant Officer Felix
who
testified in support of the defendant’s case denied that at the
stage plaintiff suggests she was injured the police at
the scene had
protective gear, carried rifles or that there were armoured vehicles
at the scene and according to him no rubber
bullets were fired at
that stage.
[8]
All five (5) witnesses who
testified on behalf of plaintiff’s case testified that
there
were armoured motor vehicles at the scene at the relevant stage, that
the police were wearing protective gear and were armed
with rifles.
Two of the witnesses were not even aware that plaintiff allegedly got
shot or was injured at that stage. (
Mr and Mrs Matai
). They
did not even know the plaintiff and her son
Bongani
. So did
witness
Mr Tose
.
[9]
The appeal is premised on
inter alia
the grounds that:
Material
contradictions were abound in the account given by the witnesses who
testified in support of the plaintiff’s case
and that on that
basis I should have granted absolution from the instance at the close
of plaintiff’s case.
[10]
As I indicated earlier in this judgment, the issues were narrowed
down to whether plaintiff’s
injury was caused by a stone thrown
by one of the protestors who were pelting police with stones or by a
rubber bullet that was
fired by the police in their bid to quell a
violent protest or disperse the crowd.
[11]
It was argued on behalf of the defendant that the
following,
inter alia
were material contradictions which
should have cast the plaintiff’s version in doubt and should
have rendered plaintiff’s
evidence not to be credible:
Plaintiff having initially stated that
she stopped because teargas was affecting her chest and later saying
because she anticipated
it would affect her;
Whether her windows were rolled up as
she suggested or open according to her son
Bongani
;
Whether she was struck as she was
going around the car (
Bongani
) or alighted from motor vehicle
already injured (
Mr Tose
);
Whether the group of protestors was
toyi-toying or just listening to a person addressing them.
A lot was made about what the police
vis-à-vis
crowd were doing when plaintiff and her son
were driving to one
Gomma-gomma’s
house.
[12]
A lot was also made about plaintiff having
disavowed seeing the protestors hurling stones at the police.
Yet
according to one of the witnesses in support of plaintiff’s
case
Ms Matayi
the crowd threw stones at the police.
[13]
I held the view, and still do, that the suggested
contradictions, where there are such, are not material
to the issue
in dispute.
[14]
I was satisfied and still am that witnesses in
support of plaintiff’s case corroborated each other
as regards
inter alia
the police having been armed with rifles and
wearing protective gear and firing shots. Defendant’s sole
witness denied this.
Regarding the firing of shots, defendant’s
counter to this was that the witnesses must have mistaken the sound
made by stun
grenades for rubber bullets shots.
[15]
There was no evidence placed before me by the
defendant to show that plaintiff was negligent in any way
to warrant
a finding that there was contributory negligence on the part of the
plaintiff.
[16]
The appeal is also directed at my at my order
directing the defendant should pay costs at a High Court scale
even
though I awarded her damages in the agreed amount of R204 968.56.
It is trite that in awarding costs, the court has a
discretion that
it has to exercise judicially upon a consideration of the facts of
the case under consideration. My order in this
regard was influenced
amongst other things by the fact that the claim for damages was
initially for a sum of R550 440.00.
It was only during pre-trial
conference held on the 19 and 21 May 2015, the last date being the
date on which the trial commenced,
that defendant admitted the
quantum of plaintiff’s claim for general damages as a result of
the incident in question to be
R150 00.00. Surely it could not have
been expected of plaintiff to halt the process and apply for a
transfer of the matter to the
Magistrates’’ Court at that
late stage.
[17]
In my view, plaintiff was justified in instituting
the action in the High Court given that there was uncertainty
regarding the prognosis of her injury to right eye which required
surgery.
[18]
I am therefore not persuaded that the appeal has a
reasonable prospect of success.
[19] Accordingly,
the application for leave to appeal is dismissed with costs.
_______________
NG BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant : Adv:
F Petersen
Instructed
by
: THE
STATE
ATTORNEY
29
Western Road
Central
PORT
ELIZABETH
Ref:
V Madokwe/610/2014/E
Tel.:
041 – 585 7921
For
the Respondent : Adv: MN
Paterson
Instructed
by
: GP
VAN RHYN MINNAAR &
CO
C/o
2 LEXICON ATTORNEYS
2 Clevedon Road
Central
PORT
ELIZABETH
Ref:
GP2/0604
Tel.:
041 – 373 7434
Date
Heard
:
11
October 2019
Date
Reserved
: 11 October 2019
Date
Delivered
: 17 October 2019