Williams v Blunden (1967/2018) [2021] ZAECPEHC 35 (25 May 2021)

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[2021] ZAECPEHC 35
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Williams v Blunden (1967/2018) [2021] ZAECPEHC 35 (25 May 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No.:  1967/2018
Date
Delivered:= 25 May 2021
In
the matter between:
DEON
JONATHAN WILLIAMS
Plaintiff
and
SEAN
BLUNDEN
Defendant
JUDGMENT
RAWJEE
AJ:
[1]
This is a delictual claim for damages for
the alleged unlawful, intentional or in the alternative negligent
shooting of the plaintiff
by the defendant.  The issues of
liability for damages and
quantum
of damages were separated by order of this Court in terms of Rule
33(4).  The trial therefore proceeded before this Court only
in
respect of merits with the issue of
quantum
standing over.
[2]
It was common cause that on 20 June 2015
and at 66 Beethoven Avenue in Walmer Heights, Port Elizabeth, the
defendant’s firearm was
discharged resulting in the plaintiff
sustaining a gunshot wound to his abdomen;  that the plaintiff
and defendant had an acrimonious
relationship; that Constable Petrus
of the South African Police Services arrested the defendant who was
already in handcuffs;
that the defendant was pointed out by Mr
Herselman of Atlas Security, now deceased, as the person who
allegedly shot the plaintiff;
that Constable Petrus took
possession of a Glock 19-9mm pistol, a magazine and 10 rounds of
ammunition; and that this pistol was
pointed out as the firearm used
in the shooting of the plaintiff.  The parties furthermore
agreed that the transcript of the
criminal trial was to serve as
evidence before this Honourable Court.
[3]
The plaintiff agreed that he bore the
onus
to prove his claim and the duty to begin.  The plaintiff and his
daughter, Ms Kayleen Williams (“Ms Williams”), tendered
evidence
in support of the plaintiff’s claim.
[4]
Ms William’s evidence
contextualises the shooting incident and places the plaintiff and
defendant on the scene in a heated family
argument.  Her
evidence is confirmed by the defendant in that,
inter
alia
,  he testified that : he was
extremely angry with Ms Williams for accusing him and Ms Marlene
Blunden (“Ms Blunden”) of
being fraudsters and thieves and that
they wanted her to stop doing so; Ms Williams refused to talk to the
defendant and Ms Blunden
resulting in the defendant wanting to remove
her from the home; Ms Williams called the plaintiff for help; when
the plaintiff arrived
on the scene, Ms Williams was sitting in the
lounge with Ms Blunden; that the plaintiff ran pass the patio doors
and entered from
the back door into the kitchen; the security guard
ran out of the house; and that after the shooting incident, in the
foyer between
the lounge and dining room, Ms Williams hit the
defendant over the head with a statue.  She heard the plaintiff
telling the
security guard to call the police and the defendant
telling the plaintiff to get out of his house.  She then heard
the first
shot being fired while she was sitting in the lounge and
ran towards the kitchen and then saw the defendant pointing a firearm
at
the plaintiff.  At this stage, Ms Williams positioned the
defendant somewhere close to the fridge and patio door.  While
the defendant was pointing a firearm at the plaintiff whom she could
not see, she heard another shot being fired in the direction
of the
back door.  She then jumped up and ran into the kitchen (for the
second time) and followed the plaintiff and defendant
who were moving
in the direction of the back door.
[5]
During cross examination, Ms Williams
initially testified that her father was not a violent person.
Mr Beyleveld, counsel for
the defendant, had to remind Ms Williams of
her evidence during the criminal trial about the protection order
granted to her mother
against the plaintiff.  She finally
conceded that the plaintiff can be quiet intimidating and she became
aware of a protection
order being granted to her mother against the
defendant during the criminal trial. Ms Williams was referred to the
photographs which
formed part of the docket which showed marks on the
defendant’s neck and his t-shirt being torn.  Her evidence was
that she
did not know when the defendant sustained the injuries to
his neck or when his t-shirt was torn.  She however confirmed
that
the defendant’s t-shirt was not torn and he did not have the
marks on his neck before he entered the home.  The evidence of
the plaintiff and the defendant as to where they were respectively
standing in the kitchen, the plaintiff’s evidence as to where
the
table and chairs were in the kitchen at the time of the incident, the
evidence of the expert witness as to the trajectory of
the two
bullets and the plaintiff’s evidence at the criminal trial make it
highly improbable that Ms Williams witnessed the shooting
incident
which resulted in the injury to the plaintiff.  Ms Williams
correctly deferred any questions regarding the trajectory
of the
bullets to expert opinion.  Ms Williams did not leave the
impression that she had any intention to mislead the Court.
She
did testify to being stressed and having heard her evidence and read
her testimony in the criminal trial, this court finds that
the
consequential trauma she faced from the events of that day has had an
impact on her recollection of events.
[6]
The plaintiff’s evidence is that he was
called by Ms Williams saying the defendant was trying to throw her
out of the home and he
rushed to her aid.  He entered the home
through the back entrance which leads directly into the kitchen.
The defendant
was standing in the kitchen next to the hob talking to
the security guard.  He walked up to the defendant and with the
use of
expletives asked him what he thought he was doing and told the
security guard to call the police.  The defendant responded with
more expletives ordering him to leave his house.  There was a
robust verbal altercation between them which ended up in the
plaintiff
pushing the defendant’s hand away from his face.
The plaintiff and defendant had to be in close proximity to each
other for
this to have occurred.  The defendant then moved his
hand to his belt and the first shot was fired.  The security
guard
then ran out of the house from the same back door through which
the plaintiff entered the house.  Soon thereafter, the defendant
was pointing the gun at him and ‘he fired two more shots at him.
He was only hit by one bullet which entered and exited just
above the
right hip in the right iliac breast.  He moved towards the
passage.  The defendant was still pointing a gun at
him.
He grabbed the defendant’s sister, Ms Blunden, to protect himself.
His daughter then hit the defendant from the
back.  He collapsed
and was then taken by the paramedics to hospital.  Under
cross-examination the plaintiff admitted that
the defendant and him
had an acrimonious relationship.  The plaintiff could not
explain why he simply did not advise his daughter
to call the police
for assistance.  His response was that he did not do so because
he knew the defendant was abusive towards
women and children.
This was quickly laid to rest when the plaintiff conceded that he was
the one who had a protection order
against him for physically
assaulting his ex-wife (the defendant’s sister and Ms Williams’
mother).  The plaintiff further
conceded to being “cross” at
the time.  He further testified that on arriving at the home he
ran to the back door and ran
inside and once inside walked at a fast
pace to where the defendant was standing next to the stove, in front
of the oven and started
confronting him.    During the
confrontation, he tried to push the defendant’s hand away from his
face to prevent
the defendant from hitting him in the face and it was
during this movement that the defendant’s hand went down to his
side and
the first shot went off.  At this stage he did not see
the gun yet.  He could not comment on the bullet hole in the
cupboard
door close to where him and the defendant were standing.
He correctly said that he did he not have any knowledge as to the
degree of the trajectory of the bullet being consistent with where
the defendant was standing and from which the firearm was discharged
from his hip.  He was asked to confirm that at the criminal
trial his evidence was that after the first shot was fired, he tried
to prevent the defendant from taking out the firearm and that he was
trying to wrestle the gun away from the defendant while they
were
fighting.  His maintained that after the first shot was fired,
he did not wrestle but only attempted to wrestle the gun
away from
the defendant.  He said that after the first shot was fired, he
turned around and moved towards the entrance to the
lounge while the
defendant stood near the stove pointing the firearm at him and fired
a shot at him when he turned to the side to
go to the passage.
He could not say where this projectile went after exiting him.
He admitted that this could not be
the second projectile which hit
the toaster on the opposite end of the kitchen and that the only two
bullet holes that were found
in the kitchen was the one in the
cupboard door under the stove and the one in the toaster.  The
plaintiff had gone to the house after he was discharged from hospital
to see if he could find any other bullet marks and he was not able to
find any.  Except for his say-so at this trial only, there
is no
evidence of a third shot being fired.  Furthermore, the
plaintiff could not explain how the defendant’s t-shirt was
torn or
how the defendant received the marks around his neck.  The
plaintiff excluded his daughter or his ex-wife from having
caused the
marks around the defendant’s neck and from tearing his t-shirt.
It was common cause that the photos regarding
the defendant’s torn
clothes and marks on the neck were taken by his son and formed part
of the police docket.  During the
criminal trial the plaintiff
said the marks were self-inflicted.  Fortunately for him, this
was not his evidence before this
Court.  Despite the vigorous
cross-examination during this trial, the plaintiff maintained that he
did not know how the defendant
sustained the injury to his neck or
how his clothes were torn.  This placed his credibility and
reliability in question.
This court finds that the defendant
tailor made his evidence of three shots being fired, in the absence
of any supporting evidence,
to support his version of the defendant
taking aim and firing two shots at him.  Having considered the
evidence of the acrimonious
relationship between the plaintiff and
defendant, the plaintiff’s temperament, that the defendant was
angry, the marks on the defendant’s
neck and his torn clothes and
the ballistic evidence (detailed below), it is probable that the
there was a scuffle between the plaintiff
and defendant.
[7]
The defendant called Mr Jacobus Steyl, a
ballistics expert, as a witness who also testified at the criminal
trial.  His experience
includes
inter
alia
, ballistic examinations,
interpreting wound ballistics and reconstructing crime scenes.
Mr Steyl confirmed the correctness
of the content of his report save
insofar as an amendment was made as to the trajectory of the bullet
being slightly downward.
He explained that this amendment did
not impact when he has regard to the basket of ingredients, he uses
to reach his findings in
his report.  Mr Steyl’s experience as
a ballistics expert was brought into question during his cross
examination.
He however detailed his qualifications and
expanded on his qualifications and experience, in particular that he
has the same qualification
of the American Services which is
equivalent to a degree in South Africa.  The reason for his
American qualification is that
there was no degree in South Africa at
the stage when he studied and all firearm examiners were sent for
education and training to
America where they obtained an equivalent
qualification and also to do further courses in America.  He has
an equivalent degree
dealing with his training and experience and is
a member of the Association of Firearm Tool Mark Examiners.  The
Court accepts
Mr Steyl is an expert in the field of ballistics.
[8]
Mr Steyl’s evidence related to the two
gunshots which were fired and the probable trajectories of those
bullets.  His evidence
is that when drafting his report he
considered the factual scenario which supported his own trajectory of
the bullets, the photographs
at the scene, the J88 of both the
defendant and the plaintiff, the statement of Ms K Williams and D
Williams, the defendant’s Plea
Explanation and consultations with
the defendant’s attorney. Mr Steyl further said that he never puts
any version which is given
to him by a party in his report as it is
forensically incorrect to do so.  He confirmed that the
photographs used in his report
were taken by himself and that it is
his own examination and trajectory and not that of the plaintiff.
He first examined the
bullet hole itself and then did the trajectory
of that bullet hole.  He then saw where the trajectory would
come up and the
angle of that trajectory as indicated in the
photographs.
[9]
Mr Steyl visited the scene three and a half
years later, i.e. on 7 January 2019, and one of the exercises he
conducted was to look
for any other marks or any other impact marks
that could relate to the incident.  He did not find any evidence
of a third projectile
or third mark in this matter but admitted that
the delay in examining the scene was not ideal.  There was no
evidence led of
a third shot being fired at the criminal trial. He
testified that the firearm used was a Glock firearm which is a
semi-automatic
pistol designed in such a fashion that pressure would
have to be applied to the trigger to fire a shot.  Mr Steyl
described
the damage to the cupboard door as a stable bullet impact
consistent with the angle a bullet would have followed if somebody
with
the defendant’s height was standing close to the oven.
He then dealt with the second trajectory, i.e. the hole in the
toaster
and confirmed that the impact damage on the toaster can be
associated with the bullet after it perforated the complainant.
He explained that when a bullet is in flight it is normally 9mm in
diameter so when anything is impacted it will leave a round defect.
The defect on the toaster, however, is irregular in that it is a
little bit oval on the top section with a sharper point on the bottom
section.  This means the bullet of the projectile was unstable
or it was damaged which created this defect itself and it further
confirms as to why this bullet is then found inside the toaster
instead of it hitting right through the toaster.  He was
consistent
in his evidence that a normal 9mm parabellum bullet will
shoot right through the toaster if it was a direct impact shot.
It
was his uncontested evidence that the shot to the toaster was not
a direct impact shot and that it was most likely that this was
the
bullet which hit the plaintiff.
[10]
The two trajectories he found were very
different trajectories.  As to whether the plaintiff’s version
could be correct that
he did not touch the firearm and instead he
only  pushed the defendant’s hand away and the defendant’s
hand then went to
his side and then the firearm went off, Mr Steyl
testified that it was clear from the trajectory that the firearm was
pointing downwards
towards the cupboard when the shot went off and
more importantly that because of the positive trigger pressure
required to shoot,
this shot could not have gone off with just a
touch to the firearm.  He said that this ballistic evidence is
more consistent
with the defendant’s version of a scuffle between
him and the plaintiff with them grappling with the gun when the shots
were fired.
[11]
The second aspect when looking at bullet
trajectories is that the height of the firearm plays a pivotal role
in that it determines
the trajectory that this projectile will
follow.  The height in the firearm in this case is important
because it will determine
whether the bullet will hit the toaster
itself on impact.  Mr Steyl found that the plaintiff’s wound
runs from left to right
and if he was placed in the trajectory of the
bullet penetrating the toaster his back will face the cupboard with
the toaster on
it and the left-hand side of the plaintiff would be
facing the firearm itself.  Mr Steyl opined that the defendant’s
version
as to how the events unfolded is consistent with the
projectile examination and evidence in that the scuffle originated
near the
cupboard where the first projectile was found and then moved
towards the side where the toaster was when the second shot went
off.
He considered the plaintiff’s version that he was
standing at the opposite wall close to the kitchen door when the
second shot
went off.  He testified that this would mean the
projectile would not have had enough energy to hit the wall and then
go across
the room to hit the toaster.  His evidence was that it
was very unlikely that this had happened. Mr Steyl furthermore, based
on the two trajectories and the injury to the plaintiff, excluded a
frontal shot from being possible.  He confirmed the left-hand
side wound to be 108cm from the ground and the right-hand side wound
to be 100cm from the ground leaving an 8cm difference which
was a
slightly downward trajectory.  This slightly downward trajectory
did not change his opinion regarding the projectile entry
into the
toaster.  One of the reasons he concluded that there was a
struggle was because there were two opposing bullet trajectories
found.  In his experience, the two opposing trajectories are
consistent with a struggle scenario.
[12]
Under vigorous cross examination, Mr Steyl
maintained that the injury sustained by the defendant to his neck and
his torn t-shirt,
the injury sustained by the plaintiff as a result
of being shot at and the two trajectories could only be explained by
a firearm
being held low and parties moving around in a scuffle.
This was the difference between the more probable version of a
struggle
trajectory versus an aiming and firing shots trajectory.
He maintained that the two trajectories were not consistent with the
plaintiff’s version of the defendant aiming and firing a shot at
him.  With regard to the change of the trajectory to slightly
downwards, Mr Steyl said that when a trajectory goes through the body
itself there are differences in the trajectory and all that
tells him
is that he has to take into consideration that the person could have
been moving.  The slightest movement of the body
can change a
trajectory and he is alive to this in his report.  His second
consideration was the low height of the firearm.
He said that
if he took the low height of the firearm plus the trajectory through
the body into consideration the trajectory could
still end up in the
toaster.  Mr Steyl testified that only if he was dealing with
the one ingredient in the ballistic basket
could he find the
plaintiff’s version to be probable. This is however not done.
He further testified that the now slightly
downward trajectory of 8cm
did not change his conclusions reached because it would depend on the
body height at the angle of the
person moving as well as the height
of the firearm.  He concluded that it was highly likely that
there was a struggle scenario
where two parties were moving.
[13]
Mr Steyl pointed out that his opinion would
remain the same even though he was presented with new information of
a slightly downward
trajectory, in particular that a struggle
scenario was now more likely because the firearm was still low.
Mr Steyl then reconfirmed
that the trajectory of the bullet through
the body is relevant in that the movement in the body by bending or
any other movement
can easily explain the 8cm difference in the
trajectory.
[14]
The three reasons for the opinion that
there was a struggle scenario was the two opposing bullet
trajectories, the downward or level
trajectory and that the firearm
was in a lower position.  He confirmed that there would
obviously be a difference if there was
a straight downward
trajectory.  His opinion was that it was more likely that there
was a struggle.
[15]
The plaintiff’s opinion that Mr Steyl did
not correctly mark the impacts of the bullets to say which impact
belonged to which bullet
is not supported by expert evidence.
The court accepts the expert evidence of Mr Steyl that the bullet
which hit the cupboard
was a stable bullet and therefore could not
have penetrated a body.  The second shot to the toaster,
however, indicates that
it had penetrated a body before hitting the
toaster.  There is no evidence to contest this.
[16]
Mr Steyl confirmed that his reconstruction
of the crime scene and the ballistic examination goes hand in hand.
The main criteria
for ballistic examiners to visit scenes is to
determine trajectories, to determine bullet angles and impacts,
velocity and determine
the energy of projectiles and fragmentation
and damage to different surfaces.  That is all part of the
ballistic examination.
Identification is only one aspect of
ballistics.  He explained that none of the ingredients in his
ballistic basket could be
taken in isolation.  If it was taken
in isolation then anything would be possible.  It was therefore
necessary that all
the ingredients be taken together.  The
height of the firearm was the third ingredient.  Mr Steyl based
his opinion on
matters of fact and during his evidence he clearly
drew a line between matters of fact and matters of value thereby
assisting the
court as an expert witness (and not usurping the role
of the Court).
[17]
The defendant pleaded that the firearm was
discharged and that the plaintiff did sustain a gunshot wound to the
abdomen as a result
of such discharge, but that this came about as a
result of an unlawful attack by the plaintiff on the defendant which
culminated
in a scuffle and a struggle with the firearm accidently
being discharged.
[18]
His evidence was that he collected a large
sum of cash from the airport before going to 66 Beethoven Street, as
agreed with his sister,
Marlene Blunden.  He confirmed the
plaintiff’s evidence that the only way to enter the house was
through the back door as
his mom normally held the key to the front
security gate which remained locked.  The back door leads into
the kitchen where
the alleged shooting incident took place.
Both his sisters, Ms Cheryl Williams and Ms Blunden, as well as his
mom were present.
He enquired from his sister as to why the
plaintiff was involved in their family business as they were
divorced.  He also stated
that they have done nothing wrong to
his sister and her daughter.  Ms Williams arrived at home and
she was told that they want
to talk to about the accusations made by
her that they are thieves and fraudsters.  Ms Williams refused
to speak with them and
went to her room and locked the door.
They followed her.  The defendant admitted to kicking a hole in
Ms William’s bedroom
door and entering her room where they
continued arguing.  It was during this argument that Ms Williams
called the plaintiff.
They then went back to the lounge area.
The alarm was going off and a security guard came to the house.
He came to the
front door and enquired as to whether there was an
emergency and the defendant said no, there was just a family
dispute.  He
told the security guard to come around the back,
which he did, and he came in through the kitchen door.  He then
also went to
the kitchen and stood next to the stove.  The
security guard then went to the lounge and spoke to Ms Williams and
her mother,
Ms Cheryl Williams, and Ms Marlene Blunden.  He
remained standing at the stove listening to them.
[19]
The plaintiff rushed in from the back door
of the kitchen swearing at him.  He was still standing at the
stove when the plaintiff
entered the kitchen, and they had an
argument and exchanged expletives heatedly.  He was grabbed by
the sweater and it was then
that his sweater was torn.  The
plaintiff then grabbed him by the neck and proceeded to strangle
him.  He managed to pull
one of the plaintiff’s hand away from
his neck and in that action the plaintiff’s hand hit the gun and he
realised that the defendant
had a gun on him.  The plaintiff
then went for his gun which was on the plaintiff’s left hip with
the butt facing him.
He tried to prevent the plaintiff from
pulling the gun out.  The plaintiff then let go of his neck
completely and used this
hand to get the gun.  While they were
struggling with the gun, he pulled it resulting in a shot going off.
They were moving
during the scuffle.   They continued to
struggle and he made sure that the gun was not facing in his
direction.  He
got it away from the plaintiff when the second
shot went off and everyone was now in the kitchen.  He had
control of the gun.
He put it back into his hip and moved
towards the lounge area.  He was in a daze.  He denied that
there was ever a third
shot that was fired.  The plaintiff also
moved into the dining room area which is opposite the lounge.
The plaintiff was
coming over to him on the lounge side to engage
with him, but his sister, Marlene, prevented this.  He was then
facing the plaintiff
with his back towards the passageway when he
felt something hit him on the head.  He saw Ms Williams walk
away with the statue
in her hand.  He was bleeding and in a daze
and in shock.  His sister, Marlene, then said he needed to get
out of the house
for the plaintiff to be treated by the paramedics
and he left the house by the back door through which he entered.
The Atlas
security guard then told him to put his hands behind his
head and kneel on the paving, which he did.  The guard then took
possession
of his gun.  His son had taken the photographs at the
scene.  He denied shooting the plaintiff deliberately or that he
was preparing himself to shoot the plaintiff when he came to the
house.  This is highly improbable as the plaintiff did not
reside there and the defendant knew this. During rigorous
cross-examination by Mr Niekerk, the defendant maintained that he was
trying
to prevent the plaintiff from pulling out his firearm and that
he did not pull out the firearm.  He explained that when he said
he defended himself during his bail hearing he meant he was
preventing the plaintiff from pulling out his firearm.  This is
accepted.
[20]
The plaintiff’s evidence and that of the
defendant are similar insofar as it relates to their close proximity
to each other when
the gun was first fired and that there was a
heated argument between them on the plaintiff’s arrival at the
home.
[21]
The defendant was present while evidence
was led and while the plaintiff’s counsel raised this during cross
examination, he did
not pursue the prejudice to the defendant in his
written argument.  This was not the first time any of the
witnesses had testified
regarding this incident and this court finds
the defendant’s evidence to have remained consistent in material
respects.  The
same cannot be said for the evidence of the
plaintiff who at the criminal trial said the defendant inflicted the
injuries on himself
and during this trial could not explain how the
defendant sustained the injury to his neck or how his t-shirt got
torn.  He
more pertinently now testified to three shots being
fired without any supporting evidence.
[22]
In
a delictual action such as this, the onus rests on the plaintiff to
prove on a balance of probabilities legal causation and wrongfulness;
damnum
(damages);
negligence; and factual causation of the injury, i.e. the injury must
have been caused by the negligent conduct of the
defendant.  The
classic test for negligence as formulated in
Kruger
v Coetzee
[1]
,
is applicable.
[2]
[23]
This court is faced with two mutually
destructive versions.  The plaintiff alleges he was aimed at and
shot at by the defendant
while the defendant alleges that the
plaintiff was shot accidentally during a scuffle between them.
This court must adopt the
approach set out by the Supreme Court of
Appeal in the matter of
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell et Cie SA and
others
2003 (1) SA 11
(SCA) by making
findings on the credibility of witnesses, their reliability and the
probabilities.
[24]
I refer to what is detailed above
inter
alia
, that Ms William is a credible
witness, but her evidence cannot be relied on as I found that she was
traumatised by the incident
which resulted in her recollection of
events being impeded.  I do not find the plaintiff to be a
credible witness for the reasons
stated above, inter alia, that three
shots were fired.  The defendant has remained consistent in his
version of a scuffle between
him and the defendant which resulted in
the shooting incident (this was his version at the criminal trial
too).
[25]
Mr Steyl’s evidence is uncontroverted and
the plaintiff’s reliance on the judgment of
Abdo
N.O. v Senator Insurance Co Ltd & Another
1983
(4) SA 721
(ECD) is accordingly misplaced.  Central to the issue
in this matter is the trajectory of the bullets and Mr Steyl’s
expert
knowledge and skill in ballistics places him in a better
position to draw inferences than this Court and I have accordingly
relied
on his expertise to assist me. (
PriceWaterhouseCoopers
Inc v National Potato Co-op Ltd
[2015]
2 ALL SA 403
(SCA) refers).
[26]
The plaintiff did not discharge the onus of
proving his case on a balance of probabilities when considering all
the evidence as a
whole, in particular, the acrimonious relationship
between the plaintiff and defendant, the plaintiff’s temperament,
the fact that
both the plaintiff and defendant said they were angry
at the time, the defendant’s torn t-shirt and the marks around his
neck and
the uncontested expert forensic and ballistic evidence of Mr
Steyl.
[27]
I accordingly make the following order:
27.1
the plaintiff’s action is dismissed; and
27.2
the plaintiff is to pay the defendant’s
costs.
A RAWJEE
ACTING JUDGE OF
THE HIGH COURT
(Electronic
signature)
Appearances:
For Plaintiff:
Adv D Niekerk instructed by Brown, Braude and Vlok Inc
For
Defendant:  Adv A Beyleveld SC instructed by Kaplan Blumberg
Attorneys
Date Heard:
19-25 March 2020 (postponed
sine die
due to Level 5 Covid 19
lockdown)
Due to lockdown the
matter could not proceed in open court and heads of argument were
filed electronically
[1]
1966(2)
SA 428(A) at 430 E
[2]
“
for
the purposes of liability
culpa
arises if –
(a)
a
diligens
paterfamilias
in the position of the
defendant –
(i)
would foresee the reasonable possibility
of his conduct injuring another in his person … and causing him
patrimonial loss; and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b)
the defendant failed to take such
steps.
…
Requirement
(a)(ii) is sometimes overlooked. Whether a
diligens
paterfamilias
in the position of the
person concerned would take any guarding steps at all and, if so,
what steps would be reasonable, must always
depend upon the
particular circumstances of each case.”