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[2012] ZASCA 55
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City of Johannesburg Metropolitan Council v Ngobeni (314/11) [2012] ZASCA 55 (30 March 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
: 314/11
Reportable
In the matter between
CITY OF JOHANNESBURG METROPOLITAN
COUNCIL
…......................................................................................
Appellant
and
PATRICK NGOBENI
…...............................................................
Respondent
Neutral citation:
City of Johannesburg
Metropolitan Council v Ngobeni
(314/11)
[2012] ZASCA 55
(30 March
2012)
Coram:
Navsa, Heher, Mhlantla, Tshiqi and Wallis
JJA
Heard:
28 February 2012
Delivered:
30 March 2012
Summary:
Wrongful shooting – conduct of
trial judge – irregular – approach to be followed and
principles to be applied
when dealing with two mutually destructive
versions – trial court misdirected itself.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
South Gauteng High Court,
Johannesburg (Spilg J sitting as court of first instance).
1 The appeal is upheld with costs including those
attendant on the employment of two counsel.
2 The order of the court below is set aside in its
entirety and substituted as follows:
'The plaintiff's claim is dismissed with costs.'
___________________________________________________________
JUDGMENT
__________________________________________________________
MHLANTLA JA (NAVSA, HEHER, TSHIQI and WALLIS JJA
concurring):
[1] This appeal is directed against a judgment of Spilg
J sitting in the South Gauteng High Court, Johannesburg, in terms of
which
the learned judge upheld the claims for wrongful shooting,
arrest and detention by the respondent, Mr Patrick Ngobeni against
the
appellant, the City of Johannesburg Metropolitan Council. It is
convenient to refer to the parties as they were cited in the court
below.
The background
[2] On 15 September 2004, the plaintiff was shot by a
metro police officer Thabo Ledwaba during an incident which occurred
at the
intersection of Queen Street and Buckingham Avenue,
Kensington, Johannesburg. Following the shooting, the plaintiff was
admitted
to hospital having sustained two bullet wounds. He was
arrested and detained whilst in hospital. As a result of the incident
the
plaintiff was rendered a paraplegic. He subsequently instituted
an action against the defendant and its two employees. The metro
police officers who were involved in the incident, were Mr Ledwaba,
who died before the commencement of the trial and Mr Mandlakayise
Mabaso. The plaintiff claimed damages from the defendant and the two
police officers arising from the shooting incident and for
his
subsequent arrest and detention.
[3] The plaintiff founded his claim on two alternative
grounds. First, he claimed that Mabaso and/or Ledwaba unlawfully
assaulted
him by inter alia:
(a) pointing a firearm at him;
(b) shooting him multiple times and wounding him; and
(c) jumping on his chest.
In the alternative, he claimed that Ledwaba negligently
discharged the firearm in his vicinity and this led to him being
injured
in his left shoulder and hip.
[4] The defendant and its employees pleaded that on the
night in question Mabaso and Ledwaba, in their capacity as metro
police
officers, had stopped the plaintiff for a traffic offence and
enquired whether he was in possession of a valid driver's licence.
At
a certain stage, and whilst they were executing their duties as such,
the plaintiff suddenly and without reason, extracted an
unlicensed
firearm from his vehicle and pointed it at Mabaso. The plaintiff
further assaulted Mabaso by hitting him with the firearm
on his right
eye. As a result of the plaintiff's actions, Ledwaba who had been
inspecting a licensed firearm found in the plaintiff's
possession,
sought to defend Mabaso and in the course of such defence fired three
shots at the plaintiff with the licensed firearm.
[5] During the course of the trial in the court below,
it became apparent that the plaintiff was pursuing his claim solely
on the
basis that Ledwaba had acted negligently when he fired the
rounds which caused his injuries. On the other hand, the defendant
adduced
evidence in support of its defence of justification. At the
end of the trial, the judge was faced with two mutually destructive
versions. He accepted the plaintiff's version and held that the
defendant and its employees were liable for the damages suffered
by
the plaintiff. The defendant now appeals against that judgment with
the leave of this court.
The evidence
[6] Before identifying the issues on appeal I will
proceed to set out a brief exposition of the evidence adduced in the
court below.
The plaintiff testified in support of his case.
Inspector Raletsemo testified on behalf of the plaintiff upon the
insistence of
the trial judge. Six witnesses were called on behalf of
the defendant. Mabaso was the defendant’s main witness. The
trial
judge
mero
motu
ordered an inspection in loco to
be held and thereafter called Mr Maseko, the owner of the vehicle
driven by the plaintiff during
the incident.
[7] The plaintiff testified that on 14 September 2004 at
22h30, whilst driving a Nissan LDV (Nissan) to Fontana Cafe, he had
failed
to stop at a stop sign at the intersection of Queen Street and
Buckingham Avenue, Kensington. Two metro police officers noticed
the
infraction, stopped his vehicle and parked their own vehicle
immediately behind the Nissan. Ledwaba exited the patrol vehicle
and
approached the plaintiff, who by then had also alighted from the
Nissan. They met towards the rear of the Nissan where Ledwaba
requested the plaintiff to produce his driver's licence. The
plaintiff disclosed that he did not have a licence, whereupon, so
he
said, Ledwaba asked the plaintiff to 'make a plan'. The plaintiff
handed Ledwaba R40 which the latter accepted but had protested
that
it was not enough.
[8] According to the plaintiff, Ledwaba approached the
front of the Nissan and noticed a loaded and cocked semi-automatic
Norinco
pistol lying on the front seat of the vehicle. He took the
weapon. The plaintiff produced the Norinco’s licence upon
Ledwaba's
request. Ledwaba proceeded to check the licence using the
lights of the patrol vehicle. It was at that stage that Mabaso
alighted
from the patrol vehicle and approached the plaintiff who was
standing outside the vehicle but within the area of the open door of
the Nissan. He had his back to the seat and his left hand was resting
on the open door.
[9] When Ledwaba finished checking the firearm licence,
he proceeded to the front of the Nissan. Using the torch in his left
hand
and holding the Norinco in his right, he checked the licence
disc. It was at that stage that the plaintiff heard three shots being
fired in quick succession. According to him, once the trigger is
depressed and held, the Norinco would fire all the rounds in the
weapon. The plaintiff believed that the shots had been fired
accidentally because immediately after hearing the shots, he heard
Ledwaba saying 'eish' as an exclamation of surprise. The plaintiff
could not feel anything from the waist down and fell to the
ground
whilst holding onto Mabaso. He subsequently discovered that he had
been struck by two of the three rounds. He explained
that he was left
to lie there for approximately four hours before he was removed to
hospital. Whilst lying there Mabaso jumped
on his chest. He did not
lose consciousness and was aware of his surroundings until his
admission to the hospital where he was
kept under police guard.
[10] The plaintiff confirmed that he had made two
written statements to the police. The first, to Inspector Nathane,
who has since
died, was made in August 2005, whilst the second was
taken by Inspector Molatelo Raletsemo in October 2007. He also made a
report
to Dr Güldenpfennig, who had been instructed by his
attorney to compile a medico-legal report. There were material
contradictions
between these statements and his evidence. In certain
instances the plaintiff denied some parts of the statements stating
that
he had not conveyed to the police the information contained
therein. This was despite the fact that a similar report had been
given
to Dr Güldenpfennig.
[11] The trial judge insisted that Inspector Molatelo
Raletsemo be called as a witness during the plaintiff’s case.
He testified
that he took over the investigation of the case after
the previous investigating officer Nathane had died. Raletsemo
testified
that during October 2007, he consulted with the plaintiff
and recorded a second statement. He explained that the plaintiff was
offered an opportunity to make use of an interpreter but declined. He
communicated with the plaintiff in English, isiZulu and Sepedi.
According to him, the plaintiff appeared to be panicking and
uncomfortable when he made the second statement. After recording the
statement, the plaintiff read and signed the statement after
confirming the contents. That concluded the evidence adduced on
behalf
of the plaintiff.
[12] As stated earlier, Mabaso was the main witness on
behalf of the defendant. He testified that on 14 September 2004, he
and Ledwaba
reported for duty and commenced their shift at 23h00. He
was adamant that the incident had occurred on 15 September 2004 at
01h15
and not at the time alleged by the plaintiff. He and his
colleague had observed the plaintiff failing to heed the stop sign.
They
turned on their blue light, stopped the Nissan and parked the
patrol vehicle behind the plaintiff's. As soon as the patrol vehicle
came to a halt, a passenger stood up on the back of the Nissan. They
became suspicious and both alighted from the patrol vehicle.
They met
the plaintiff and his passenger towards the rear of the Nissan. The
plaintiff was asked for his driver's licence which
he could not
produce. Ledwaba approached the front of the Nissan and found a
cocked Norinco pistol lying on the front seat. He
asked the plaintiff
for a licence, which was produced. Ledwaba returned to the patrol
vehicle in order to verify the licence, using
the lights of the
patrol vehicle.
[13]
Mabaso, at that stage,
was searching the passenger who had identified himself as John. After
searching the passenger, Mabaso approached
the plaintiff in order to
conduct a body search. The plaintiff unexpectedly moved away from
Mabaso towards the driver's seat of
the Nissan. He reached into the
vehicle and produced a firearm, which was later identified as a Star
PD pistol. The plaintiff cocked
this pistol and pulled Mabaso towards
him. It was at this stage that the plaintiff hit Mabaso in the right
eye with the muzzle
of the Star PD uttering the words 'woza la wena
nja' (come here you dog). It was immediately after this attack that
Mabaso heard
three shots being fired in quick succession. Mabaso fell
to the ground believing that it was the plaintiff who had fired the
shots.
He later discovered that it was Ledwaba who had fired the
Norinco.
[14] Whilst Mabaso was on the ground, he heard footsteps
and realised that it was the passenger who was running away. He gave
chase
but stopped when the passenger ran into a nearby erf. Mabaso
returned to the scene where Ledwaba explained that
he
had shot
the plaintiff. He further explained that he had a clear view of the
plaintiff when he was holding the firearm to Mabaso's
face and that
he shot the plaintiff in defence of Mabaso. Immediately after the
incident he and Ledwaba reported the incident,
calling for backup and
an ambulance. Mabaso testified that the ambulance arrived at the
scene shortly after they had called for
assistance. Other police
officers arrived, secured the scene and took photographs.
I must mention that the evidence of Mabaso was
interrupted on numerous occasions, namely, when the court on its own
initiative ordered
an inspection in loco to be conducted and when
Inspector Lurie and Mr Maseko were called by the court. I shall deal
with this aspect
later in my judgment.
[15] Leon Pelser, who is employed by Johannesburg Metro
Police Department as an armourer, testified that, on the morning in
question,
he arrived at the scene at 01h55. He confirmed that Ledwaba
and Mabaso were on an all night shift from 23h00 to 07h00. Pelser
found
three spent cartridges at the scene. He took photographs of the
scene, made notes in his investigation diary and requested Mabaso
and
Ledwaba to provide him with their statements. He explained that
Ledwaba reported that the incident occurred at 01h15 and that
he had
fired three rounds. The officers informed him that the plaintiff had
already been taken to the hospital; that immediately
before the
shooting incident the suspect had been sitting in the door of the
vehicle when he suddenly pulled out an unlicensed
firearm, cocked it
and shoved it into the head and eye of Mabaso. Ledwaba and Mabaso
subsequently reported to his office. The officers
each wrote their
statements independently, using separate desks and thereafter handed
these to him. He read the statements to each
officer, and thereafter
Ledwaba and Mabaso signed their statements.
[16] During cross-examination, the material parts of
Mabaso’s evidence were put to Pelser. He testified that if a
firearm
were cocked, the cartridge would be in the chamber. The round
would remain in the chamber when the magazine is removed. To eject
it, one has to cock the weapon. He explained that he had not
discussed the case with members of the South African Police Services
(SAPS) at the scene nor had he examined the firearms. He merely
performed his functions without any hindrance or interruption from
SAPS members. Answering questions posed by the trial court, Pelser
testified that there had been no bullet in the chamber of the
Star
PD. According to him if the firearm were cocked, the pin or hammer
would be lying backwards. In this case, it was not lying
backwards
but was flat.
[17] Captain Sajad Singh, an official police
photographer, testified that he arrived at 02h50 whereafter Sgt
Chuene showed him the
crime scene. He observed only three spent
cartridges. He took photographs and collected forensic evidence. He
later compiled a
photo album in which various exhibits were
identified and drew up a sketch plan. He confiscated the Star PD and
the 9mm Norinco
firearms.
[18]
Inspector Benjamin Lurie, a
ballistics expert testified, in circumstances to which I will revert,
that he had received a firearm,
a .45 ACB calibre Star the serial
number of which had been erased (the Star PD firearm), one magazine,
and five .45 ACB calibre
cartridges. He testified that upon
examination and testing of the Star PD firearm, he had found that it
functioned normally. Regarding
the serial number, he applied an
electro-acid etching process and determined that the serial number of
the Star PD was possibly
16067. This serial number however belonged
to a different make and model of firearm. He was thus unable to
identify the origin
or owner of the Star PD. After concluding the
examination, he handed the Star PD to the administration section.
Lurie explained
that should the muzzle of a cocked Star PD pistol be
pressed against an object or body part with sufficient force, the
slide and
the barrel of the pistol would move back and the trigger be
disconnected. It is a safety mechanism that is built into the firearm
to prevent it from firing. This results in the Star PD pistol not
being capable of firing a round.
[19] Regarding the Norinco firearm, Lurie testified that
it was not fully automatic. It was necessary for the trigger to be
depressed
before any round could be fired. Depressing and keeping the
trigger depressed would not result in more than one round being
fired.
His testimony in this regard was contrary to the plaintiff’s.
Lurie explained that when the trigger is pulled and a shot is
fired
after extraction has taken place – the cartridge cases are
ejected to the right hand side of the firearm. According
to Lurie one
can accidentally dislodge the safety catch without much difficulty
because the safety mechanism on the locking ball
of the safety
selector does not function fully. The safety selector can fall
forward and backwards unassisted.
[20] Michael Venter, who is employed by Nicholas Yale
CC, a local agent of the manufacturing company of the Star PD firearm
testified
but his evidence is of no real consequence.
[21] Mr Mandla Maseko, the owner of the Nissan driven by
the plaintiff, attended the inspection in loco upon the request of
the
trial judge and he brought his vehicle. The judge thereafter
called him as a witness. Mabaso's evidence was interrupted by the
judge to accommodate this witness. Maseko testified that he and the
plaintiff's brother had swapped cars for the day as he had to
travel
to Piet Retief. On 15 September 2004 he received a call from the
police, who enquired about the whereabouts of his vehicle
and
thereafter notified him about the incident. He later recovered his
vehicle from the police in a damaged condition. The driver’s
door panel had been pierced by two bullets. The window, as well as
its mechanism that allows one to open and close the window,
was also
damaged. The vehicle was repaired; the bullet holes were closed; the
window was replaced and the winding mechanism was
fixed.
[22] Dr Gordon Maritz Güldenpfennig was called by
the defendant inter alia, to explain the version of events conveyed
to him
by the plaintiff. He testified that the trajectory of the
bullet was downwards. He explained that it was possible that the
bullet
had ricocheted and come into contact with the shoulder bone
which could have caused the bullet to deflect and change its
trajectory.
According to him the plaintiff has partial sensory loss
from the level of T8 further down; thus the paralysis. There was a
possible
deduction from the way the bullet travelled, as it could
have caught the edge of the scapula. The path of the bullet was
consistently
in a downward direction and it moved to the right side.
He testified that, during consultation, there was no mention of the
officers
trying to get the blood out, nor did the plaintiff mention
that the officers tried to kill him. He conceded that the plaintiff
may have mentioned this, but because it was not relevant for purposes
of the report he did not write it in his notes.
[23] Inspector Rajendra Naidoo's evidence was tendered
to disprove the plaintiff's explanation that he voluntarily handed in
his
Norinco firearm to the police for safekeeping, because he was not
permitted to keep a firearm at the place where he was residing.
Naidoo’s testimony revealed that on 9 September 2005, almost a
year after the shooting incident, Naidoo had arrested the
plaintiff
and confiscated his firearm after receiving a report that the latter
had been involved in the theft of a motor vehicle.
The judgment in the High Court
[24] As indicated earlier in my judgment, Spilg J was
faced with two mutually destructive versions. Regarding the question
of
onus
of proof, the judge held that the issue of the
onus
was irrelevant as, either way, the result would be the same. He
preferred and accepted the evidence of the plaintiff. He criticised
Mabaso in regard to the time of the incident despite the existence of
objective facts which favoured the defendant’s version
of
events. Both Mabaso and the plaintiff testified that they had heard
three shots being fired. The judge, however concluded that
four or
five shots were fired. The judge ignored the evidence of Inspector
Lurie that the Norinco was not fully automatic, as well
as that of Dr
Güldenpfennig in respect of the trajectory of the bullet. Spilg
J criticized the manner in which the police
had conducted their
investigation. In this regard he was strongly influenced by the fact
that the plaintiff had never been charged
with unlawful possession of
a firearm. He suggested that the metro police and Pelser may have
conspired against the plaintiff and
may have planted the Star PD
firearm at the scene to falsely implicate him.
[25] In the result, Spilg J concluded that Ledwaba had
not fired the Norinco in order to defend Mabaso, but did so
unintentionally
and negligently.(My emphasis.) He further
found that Ledwaba was negligent in that he held a dangerous weapon
after having been
warned of the existence of a bullet in the breech
whilst he was in close proximity to a civilian and still holding the
firearm
with his finger on the trigger. Spilg J accordingly found
that the defendant was liable for the damages suffered by the
plaintiff
and for the wrongful arrest and detention of the plaintiff.
It is against this conclusion that the defendant launched the appeal.
[26] The defendant raised the following issues for
determination on appeal:
(a) whether the trial judge had adopted the proper
approach when faced with mutually destructive versions;
(b) whether there was any merit in the appellant’s
perception that the trial judge was biased;
(c) whether the calling of a witness by a trial judge in
civil proceedings was irregular; and
(d) whether the calling by the trial judge for an
inspection in loco was irregular.
[27] In his written argument counsel for the defendant
contended that the judge descended into the arena and committed
various irregularities
during the trial, namely, the judge
mero
motu
called witnesses, called for an inspection in loco to be
held and unduly interfered when Mabaso testified. He argued that the
conduct
of the judge evidenced bias in favour of the plaintiff. On
the other hand, counsel for the plaintiff denied the allegation of
bias
against the judge. He contended that the judge had the
discretion to call witnesses and call for an inspection in loco at
any stage
of the trial. He submitted that this had not prejudiced the
defence case.
[28] In this court the parties agreed that the judge
behaved in an inappropriate manner during the trial. They accepted
that the
judge deserved some censure with regard to the manner in
which he conducted the trial. It was submitted that, despite the
behaviour
of the judge, the appeal could be determined on the merits.
It is apposite at this stage to deal with the aspect relating to the
judge's conduct, as some of the issues raised may have a bearing on
the merits.
The conduct of the trial judge
[29] It is unfortunately necessary to
make some adverse comments about the conduct of Spilg J. The trial
record runs to approximately
23 000 lines, of which 7200 lines were
occupied by the judge, either when questioning witnesses or making
comments. His active
participation in the proceedings constitutes a
third of the record. This, in my view, is highly inappropriate. In a
trial the judge
has to act as an impartial arbiter. The law requires
that a judicial officer must conduct the trial open-mindedly,
impartially
and fairly and such conduct must be manifest to all those
who are concerned in the trial and its outcome.
1
In
Take
and Save Trading CC v Standard Bank SA Ltd
2
Harms JA held:
'A balancing act by the judicial officer is required because there is
a thin dividing line between managing a trial and getting
involved in
the fray.'
[30] In
Jones
v National Coal Board
,
3
Denning LJ said:
'In the system of trial which we have evolved in
this country, the judge sits to hear and determine the issues raised
by the parties,
not to conduct an investigation or examination on
behalf of society at large, as happens, we believe, in some foreign
countries.
Even in England, however, a judge is not a mere umpire to
answer the question "How's that?" His object above all is
to
find out the truth,
4
and to do justice according to law; and in the
daily pursuit of it the advocate plays an honourable and necessary
role. Was it not
Lord Eldon, L.C., who said in a notable passage that
"truth is best discovered by powerful statements on both sides
of the
question" . . . and Lord Greene, M.R., who explained that
justice is best done by a judge who holds the balance between the
contending parties without himself taking part in their disputations?
If a judge, said Lord Greene, should himself conduct the
examination
of witnesses,
"he, so to speak, descends into the arena and is liable to have
his vision clouded by the dust of the conflict."
. . .
So firmly is all this established in our law that the judge is not
allowed in a civil dispute to call a witness whom he thinks
might
throw some light on the facts. He must rest content with the
witnesses called by the parties . . . So also it is for the
advocates, each in his turn, to examine the witnesses, and not for
the judge to take it on himself lest by so doing he appears
to favour
one side or the other . . . And it is for the advocate to state his
case as fairly and strongly as he can, without undue
interruption,
lest the sequence of his argument be lost . . . The judge's part in
all this is to hearken to the evidence, only
himself asking questions
of witnesses when it is necessary to clear up any point that has been
overlooked or left obscure; to see
that the advocates behave
themselves seemly and keep to the rules laid down by law; to exclude
irrelevancies and discourage repetition;
to make sure by wise
intervention that he follows the points that the advocates are making
and can assess their worth; and at the
end to make up his mind where
the truth lies. If he goes beyond this, he drops the mantle of a
judge and assumes the robe of an
advocate; and the change does not
become him well.'
The procedure described by Denning LJ is clearly set out
in rule 39 of the Uniform Rules of Court and governs trials in this
country.
[31] Trollip AJA in
S
v Rall
5
laid down three principles of proper
judicial behaviour, namely:
'(1) The Judge must ensure that "justice is done" . . . and
should also ensure that justice is seen to be done….
He should
therefore so conduct the trial that his open-mindedness, his
impartiality and his fairness are manifest to all those
who are
concerned in the trial and its outcome, especially the accused.
(2) A Judge should also refrain from indulging in questioning
witnesses or the accused in such a way or to such an extent that
it
may preclude him from detachedly or objectively appreciating and
adjudicating upon the issues being fought out before him by
the
litigants.
(3) A Judge should also refrain from questioning a witness or the
accused in a way that may intimidate or disconcert him or unduly
influence the quality or nature of his replies and thus affect his
demeanour or impair his credibility.'
[32] In
S
v Le Grange
,
6
Ponnan JA stated the following with
regard to
judicial behaviour:
'It must never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial. The integrity of the justice
system is
anchored in the impartiality of the judiciary. As a matter of policy
it is important that the public should have confidence
in the courts.
Upon this social order and security depend. Fairness and impartiality
must be both subjectively present and objectively
demonstrated to the
informed and reasonable observer.'
[33] In this case Spilg J appears to
have been on a personal fact-finding mission. He descended into the
arena,
mero
motu
called
witnesses and on his own initiative decided that an inspection in
loco be held. I turn now to illustrate the instances where
Spilg J
entered the fray, contrary to the principles outlined above. It will
be necessary in certain instances to set out the relevant
extracts
from the record.
(a)
An
order that an inspection in loco be held
[34] It is trite that an inspection
in loco is ordinarily conducted upon the application of a party. If
it is at the instance of
the judge, he or she must explain why they
deem it necessary that an inspection in loco should be held. In all
cases it should
be held at the earliest possible opportunity. After
an inspection, the judge must place his or her observations on the
record and
allow the parties to comment thereon. The proper method of
recording the observations of the court at an inspection in loco was
set out in
Kruger v
Ludick
7
as follows:
'It is important, when an inspection
in
loco
is made, that the record should
disclose the nature of the observations of the Court. That may be
done by means of a statement framed
by the Court and intimated to the
parties who should be given an opportunity of agreeing with it or
challenging it and, if they
wish, of leading evidence to correct it.
Another method, which is sometimes convenient, is for the Court to
obtain the necessary
statement from a witness, who is called, or
recalled after the inspection has been made. In such a case, the
parties should be
allowed to examine the witness in the usual way.'
[35] The record discloses the following exchange with
regard to what transpired before the judge decided that an inspection
in loco
be held:
'
COURT
:
It is okay. While we are waiting then what is the view about an
inspection
in loco
,
to see the scene, the view of the plaintiff Mr Swanepoel?
MR SWANEPOEL
:
M'Lord, I have no objection to such inspection ... [intervention].
COURT
: Will it
serve a purpose?
MR SWANEPOEL
: It will serve a purpose with regard to a certain
... [indistinct] pertaining ... [intervention].
COURT
: When should it be conducted though? Because if it is
relevant to what you may want to ask this witness, I believe you
should not
complete your cross-examination, because then it means
recalling and it also means that there will be a re-examination.
MR SWANEPOEL
: Yes.
COURT
: That is the issue. What is your attitude, Ms Goedhart?
MS GOEDHART
: M'Lord, my respectful submission to Your Lordship
is that we do not believe that it is going to make, elucidate
anything. There
are photographs in EXHIBIT A which were taken on the
night in question, which we submit to Your Lordship would be far more
beneficial,
because in order to get the same feeling, then you
literally have to go there at night time to know how it looked like
... [intervention].
COURT
: Have you been to the scene?
MS GOEDHART
: No, M'Lord, but the photographs do indicate,
M'Lord, that it is a built up area. The other difficulty, M'Lord, is
the incident
happened five years ago.
COURT
: Yes.
MS GOEDHART
: There is no guarantee that, if we take the time
and spend the time, that when we get there, M'Lord, it will still be
the same
scene, and, whatever, evidence may or may not have been on
the tar at that stage, M'Lord, is now no longer going to be there.
. . .
COURT
: So we have got that evidence already. We know it is
three houses. That is, I think we are going to have the inspection.'
Upon resumption of the proceedings, and after having
conducted the inspection in loco, the judge who appeared to have
taken some
photographs himself during the inspection in loco, made
the following statement:
'COURT
: Well I have got news for everybody I downloaded the
photographs that were taken yesterday. They are available.
Unfortunately I
am going to take it no one has got a laptop with
them, but there are a number of photographs depicting the door. But
possibly the
witness can recall and just for assisting us I take it
that this is alright.'
[36] There is no doubt that none of the parties applied
for an inspection in loco. It is clear that it was ordered by Spilg J
to
counter the evidence of Mabaso. His evidence was interrupted to
allow for the inspection to be held. This was despite the
protestations
of the defendant's counsel. The judge actively
participated during the inspection, took photographs and
mero
motu
interviewed Maseko, the owner of the
Nissan. After the inspection, the guidelines set out in
Kruger
v Ludick
were not followed, in that, the
observations of the judge were never placed on record. Instead, the
observations by the plaintiff's
counsel during the inspection were
used as a basis to further cross-examine Mabaso. This procedure was
totally flawed. It is unbecoming
of a judicial officer to behave in
that manner.
(b)
Calling
of a witness
[37] As indicated earlier in my
judgment, Spilg J
mero
motu
called
the investigating officer to deal with the apparent contradictions
relating to the statement by the plaintiff. After the
inspection in
loco he called Maseko to testify. As a general rule, in civil cases,
the court has no power to call a witness without
the consent of the
parties. The issue must be thoroughly canvassed with the parties to
enable them to express their views or objections.
In
Rowe
v
Assistant
Magistrate
,
Pretoria
,
8
the court held:
‘
In a civil action the parties lay before
the court what evidence they think is necessary to support their
respective cases, and
if, on determining the case, a magistrate or
judge
is unable on the evidence before him to come to a decision, or finds
it difficult to decide where the truth lies, I do not think
he ought
to take upon himself the right of calling a witness who had not been
called by either of the parties in order to make
his task easier, or
in his view, to do justice between the parties.’
[38] The following statement was made by the trial judge
when he decided to call Maseko and in the process interrupted the
evidence
of Mabaso for the defendant:
'
COURT
:
That he will be called tomorrow, that because he would be
predominantly a witness for the plaintiff that despite where we have
gone, your rights are rights of examination and the examination
whilst Ms Goedhart's rights are those of cross-examination. And
that
I am not going to debate on
.
If you want I will give you the authority which I have.
. . .
When the cross-examination commenced the judge sought to
limit it:
COURT
: Court
called this witness to deal with the identification of his car.
MS GOEDHART
:
m'Lord, with respect once a witness is called and the defendant has
the opportunity and right, particularly, M'Lord, with respect
at the
stage at which it has taken place, it was at the court's insistence
... [intervenes].
COURT
: Yes.
MS GOEDHART
: But we are already in the defendant's case,
M'Lord, and the fact of the matter is that there has been no
explanation from the
plaintiff as to why this particular witness was
not called before.
COURT
: I must add I do not see the relevance, but I will allow
the cross-examination to go beyond the reason for the court calling
him,
the witness. I will then reconsider the basis upon which
re-examination takes place at a later stage, but at this stage your
rights
of cross-examination are to deal with any matter that you
believe relevant,
which will include most probably why you did not
call the witness
to deal with where the bullets were in the
vehicle on the night. So please carry on.'
. . .
No such restriction was placed on the plaintiff's
counsel.
'
COURT
: That we do have. So I think just confirm that that did
take place when he was asked to indicate where he was immediately
before.
MR SWANEPOEL
: Sir you remember yesterday at the inspection
in
loco
you were asked where were you positioned immediately before
the incident and you showed the position basically in the door of the
driver's side of the bakkie. ... Indeed.'
(My emphasis.)
[39] In my view, the manner in which the witness,
Maseko, was called is inappropriate. The judge did not explain the
purpose of
calling this witness. He interrupted the cross-examination
of Mabaso. This involved a procedural disadvantage for the defendant.
The judge was quick to protect the witness when cross-examined as to
his credibility and that of the plaintiff. The trial judge
erred when
he rejected the objections of the defendant’s counsel to his
calling Maseko. In my view, the calling of this witness
was an
irregularity. His evidence is accordingly inadmissible.
(c)
Refusal of the court to
excuse a witness
[40] During the plaintiff's case, an admission was made
on his behalf that the contents of Inspector Lurie's report would be
admitted.
It was therefore no longer necessary to call this witness
as the parties were agreed on the contents of his report. Spilg J,
however
disagreed and refused to excuse the witness as emerges from
the following excerpt:
'
MS GOEDHART
: M'Lord, in light of the
admissions Inspector Lurie is present I would like to excuse him in
the light of the admissions.
COURT
:
No, I would actually like to ask
him some questions he is not excused. I am serious.
MS GOEDHART
: Would Your Lordship ... [intervenes]
COURT
: There are things that I would like to know, yes. So
when the defendant, he can be on the end of a phone call. I do not
know when
the plaintiff's evidence ... [intervenes].
MS GOEDHART
: As the court pleases.
COURT
: But he is not going to be excused there are things that
I need to understand as well.
MS GOEDHART
: As the court pleases, M'Lord.
COURT
: Ultimately, everyone is giving evidence for my benefit.
MS GOEDHART
: As the court pleases.
COURT
: And I have gone through the papers and there are things
and really, I see it as a difficult case and I really would like
assistance
and from experts. I am not sure Mr Lurie is the one who
would know and that is why I cannot say yes or no, but I think when
the
defendants starts its case if Mr Lurie could be present and then
I could release him. Say at 10:00 in the morning I am sure he has
important things to do and then we can just release him.'
[41] The parties agreed the contents of Insp Lurie's
report. It was not open to the judge to insist that he be called to
give evidence
on matters extraneous to the report. The manner in
which Spilg J dealt with the issue is irregular as he had no regard
to the submissions
by the parties.
(d)
Interference and
interventions by the judge
[42] The record is replete with instances where the
judge intervened by engaging the witnesses, especially Mabaso and
Pelser, in
unfairly lengthy questioning, a task that ought to have
been left to counsel. It is necessary to set out a few of these
passages
in the judgment to illustrate the point:
(i) Mabaso, during his cross-examination, mentioned that
he had previously worked as a paramedic. The judge, not counsel for
the
plaintiff, promptly challenged him stating that this was new
evidence. The following exchange between the judge and the witness
ensued:
'
COURT
: You have not mentioned that in your evidence-in-chief.
You hold yourself out as having been able and capable and that is the
impression
you tried to lead, certainly the court, to believe that
you were competent in dealing with this situation. Are you now saying
you
were not? --- I am trained, M'Lord, the only thing is I am not
licensed. The licensing should ... [intervention].
You were never asked about a license, were you Mr Mabaso? --- M'Lord?
Were you asked about a license, yes or no? --- Not at all.
Then answer the question as directed to you, please? --- Alright.'
(ii)
As indicated earlier Mabaso’s
testimony, in particular, during cross-examination, was often
interrupted by the judge. The
record discloses the following
questions put to Mabaso by the judge and his answers to them:
'
COURT
: Is there anything else that you would like to mention,
before Mr Swanepoel carries on that you believe is of relevance? ---
I
believe it is of, thank you, M'Lord, I think it is of relevance to
know the fact that, I was not, I have never had any incident
like
this in my life, especially that my life should be threatened the way
it was. I was not in the right state to do anything
and I remember
very well Officer Ledwaba asked me to stay away and not have anything
to do with him, because it was like he was
fearing that maybe I would
do anything to injure Mr Ngobeni.
And why was your foot on Mr Ngobeni? --- Yes this happened later on.
Why was your foot on Mr Ngobeni? --- Mr Ngobeni as I was asking him
the questions he told me that he is fainting, and so that he
says
that he is fainting that came to me to say that I would need to turn
him on the side. So all I could have done was to hold
him with the
hands for him to be on the side and maybe put something to make his
body tilt.
Why did you not use your hands? --- I could have done that.
Why did you not is the question? --- I would not have a good balance.
I could not actually kneel ... [intervention].
But why was Ledwaba not with you? --- He was with me, but he was
checking, M'Lord, to say if we have a good cover.
So you are lifting another human being with your foot, that is your
evidence? --- I just need to demonstrate what ... [intervention].
Did you or did you not lift another human being with your foot? ---
That is what I did, M'Lord.
And that person you know was injured, correct? --- On the side where
he was injured ... [intervention].
Was he injured or not? --- He was injured, M'Lord.
Please carry on Mr Swanepoel.'
(iii)
A further example of the
lengthy questioning by the judge is as follows:
'
COURT
: So how could you do it with your foot, the right foot
you said? --- The right foot, I used the right foot, because my left
foot
was injured, so I could not really kneel down.
So you stood on your left foot that was injured? --- Yes, M'Lord, but
because I held on the door I had balance enough so that I
can tilt
him on the side.
Sorry, so you stood on your injured foot? ---
The injured foot we
are talking of just an abrasion.
No, but you did not say that it was just an abrasion? --- I did say
that, M'Lord.
In your statement, you said there was an injury, not an abrasion in
your statement. Let us go to your statement --- On the statement
it
does not say but in the court I did.
What did you call it? --- I called it that I was injured.
You were injured? --- I was injured yes.
Any injury? --- Yes.
And in your evidence-in-chief you said it was an abrasion? --- I did
say an abrasion, M'Lord.
Okay. --- So I did clarify.'
(iv) The judge continued with his questions and became
more aggressive in his approach. Counsel for the plaintiff had to
observe
whilst the judge proceeded with the lengthy questioning. The
record reads:
'
COURT
: Sorry, who found the firearm? --- Mr Ledwaba.
So please how do you explain this? Mr Mabaso I am now saying it is
not a game here. We cannot, one cannot keep changing situations.
Now
you told us, you testified that Mr Ledwaba had taken the firearm from
the vehicle. How could he possibly then be covering while
you said at
the same time as it sounded to me that you were searching the
passenger. Now please, how can you perform, how can Mr
Ledwaba now be
assuming a position if both of you are searching? Please Mr Mabaso do
not assume
that this court is a toy to be played with.
Will
you please tell me which version it is, because unless you can
reconcile the two? Can you reconcile the two? --- I can.
Now do so? --- At the time when I went into the vehicle approaching
the bakkie, their vehicle, Mr Ledwaba was ahead of me. He is
the one
who approached them and I also approached them and at the time as we
both approached them, I took the position of having
to search the
passenger, because he went past the passenger and also went past the
driver, Mr Ngobeni. So him going to take that
position, he just
spotted that a firearm is just lying on the seat. So he asked the
question about the firearm, so him having to
see the firearm and
asking the firearm, he thought he should just take it immediately.
. . .
COURT
: Did anything else occur, that you have not told the
court at this stage? Anything else? --- M'Lord, it happened very
fast. I am
quite sure that all I remembered it was more the
conversation, ... [indistinct] to the court, what he asked it was
about the drivers
license that was Officer Ledwaba, he asked about
... [intervention].
What I find very strange Mr Mabaso. --- Yes, M'Lord?
And maybe you can assist. Is that you start off by claiming that
there is a suspicion, because the passenger is lying on the back?
---
That is correct.
Because you do not expect to see anyone at the back? --- Not really,
M'Lord, can I explain?
No, no I understand that. And you know that the greatest version is
that there was nobody in the vehicle? --- That is correct.
So now something that you do not expect which is denied, but let us
just stay with it, you were suspicious, because somebody is
in the
back? --- That is correct.
Mr Ledwaba sees a firearm lying and nothing is said, no further
action is taken and no other proportioning matters, measures are
taken and you are happily being satisfied that the passenger is okay.
His hands can go down. Mr Mabaso I have great difficulty
in
understanding this. --- I do understand, M'Lord, but I can just ...
[indistinct].
Yes please, because I need assistance, if that is how it happened,
that is how it happened. --- M'Lord, there are a number of things
that have been said which I do not think I will be in a position I
can say that, even if it was said it was not true. Example the
manner
of us using the torch, I did not have a torch, and Officer Ledwaba
did not have a torch. So in a manner ... [intervention].
Did you have a torch in the vehicle? --- The torch was there in the
vehicle.
So there is a vehicle that is issued with a torch? --- That is
correct.
But you did not use it? --- We did not use the torch.
Alright. --- So, it actually makes sense to say that, at the way of
the passengers especially approaching us, we should not really
allow
that to happen. Now the suspicion ... [intervention].
Why did you not say stop? --- Even in not doing that I do not
understand.
When you got out of the vehicle, why did you not say stop to them?
--- M'Lord, when we put on the blue lights, it is common that
obviously you are going to stop. So the driver immediately alighted
from the vehicle. We are not comfortable with that, because
if then
if you happen to elect the passenger, I mean the driver, a suspect
having to come to you then you are not in the better
position to
defend yourself, anything can happen.
So you got three, actually three causes of concern there? --- That
the concern yes, for the suspect to approach me.
Okay. --- That is a concern. The other concern is having to have a
passenger at the back of the bakkie lying down, unless one is
sick,
so the question was asked to Mr Ngobeni to say why is the passenger
lying at the back and he said he does not know him, he
does not trust
him, so that is why he is sitting on the back. So that to me really
still put up a concern. That is the reason why
I would ask you got to
lift up your hands. That is what we immediately asked them that they
should lift up their hands. But we
used that discretion. We could
also have followed by having to point them with a firearm until the
search was over, but we did
not do that.
MR SWANEPOEL
: I put to your ... [intervention].
COURT
: Sorry I have a question, why not? --- We felt that they
were complying, because they lifted their hands up.
Thank you. --- So ... [intervention].'
(v) What follows herein is a further examination of
Mabaso by the judge. In certain instances, there is an indication
that the judge
was not satisfied with the responses and would ask
repetitive questions:
'
COURT
: Why is that, why do you not agree? --- Because at the
time when the shooting took place it was Officer Ledwaba who shot. It
was
three quick shots ... [indistinct].
Are you definite about it? You are certain, you do no mistake that
there might have been four? --- This was three ... [intervenes].
Are you definite that there was not four? --- M'Lord, ...
[intervenes].
Even though you were in whatever state you say you were? ---
M'Lord, it was three quick shots.
You are certain? --- Certain about it, M'Lord.
If someone said there were four would they be lying? --- I know that
it was only three.
Would they be lying if they said there were four? --- They would,
M'Lord.
Thank you. Please continue.'
'
COURT
: Sorry an incident of this nature, what do you mean by
that?
MR SWANEPOEL
: A serious incident.
COURT
: Oh, sorry, I missed that. Sorry, a serious incident of
this nature, you say, you put to the witness a serious incident of
this
nature.
... [intervenes].
MR SWANEPOEL
: I can re-ask the question, M'Lord.
COURT
: No, no, I just need to know what the answer was. I mean
the question and the answer.
MR SWANEPOEL
: A supervisor ... [intervenes].
COURT
: Yes?
MR SWANEPOEL
: I put the words a senior officer from Metro
Police must attend the scene.
COURT
: Okay. A senior officer of Metro Police must attend the
scene of an incident of this nature.
MR SWANEPOEL
: Indeed, M'Lord.
COURT
: Of a serious incident of this nature.
MR SWANEPOEL
: Do you agree? --- I do agree.'
[43] It is possible but not necessary
to set out all the passages in which the trial judge interfered. The
record speaks for itself.
As a general principle, the judge may ask
questions at the end of re-examination to clarify issues. In
S
v Mafu
,
9
the court held that although a
presiding judicial officer is sometimes obliged to ask questions of
witnesses, it is important to
guard against conduct which could
create the impression that the judge is descending into the arena of
conflict or is partisan
or has already decided issues which should
only be decided at the end of the trial. Nor should a presiding
officer put attacking
propositions to an accused person, as such
conduct is capable of creating the impression that the judge is
acting as a cross-examiner,
associating himself with the case for the
state. The court also emphasised the manner of questioning because an
irregularity will
occur when questions are put to an accused in a
belligerent or intimidating manner, or so repetitively or
confusingly, as to amount
to judicial harassment.
[44] As is apparent from the examples cited above, the
judge improperly interfered and took a very active role in the trial.
He
also interrupted the cross-examination of Pelser and questioned
him extensively. I do not intend to set out the relevant extracts.
The questions in most instances were not meant to clarify issues but
to show inconsistencies in the witnesses’ evidence and
discredit them, a task that should have been reserved for counsel.
This is evidenced by the judge’s remarks with regard to
the
decision of the National Prosecuting Authority, an aspect that will
be addressed shortly in my judgment. In the result, the
actions of
Spilg J had the effect of creating a perception that he was the
plaintiff’s second counsel.
(e)
Concerns
of
the
trial
judge
about
the
decision of the National Prosecuting Authority
[45] Spilg J was alarmed to learn that the office of the
National Prosecuting Authority (NPA), was ready to make a decision on
whether
or not to continue with the charges against Mabaso. He felt
strongly that such a decision by the NPA, albeit an independent
institution,
could not be made prior to the delivery of his judgment.
What follows herein are his views in effect expressing that the NPA
should
wait for his judgment before taking a decision.
'
COURT
: There is an issue that is of great concern to me in
particular with regard to the administration of justice. I am most
concerned
that on Monday a decision may be made by the prosecuting
authority as to whether to continue with the charges against Mr
Mabaso
or not. I obviously have not formed a view on, but of concern
to me certainly is the lack of adequate investigation that to me was
quite apparent from the current investigating officer's answers. I do
not know if anyone is going to be attending court, the Criminal
Court
on Monday. Mr Swanepoel are you aware if the attorney is going?
MR SWANEPOEL
: We are not a part of those proceedings, M'Lord.
COURT
: Well I am concerned that if a decision is taken and
that decision is not to continue with the prosecution that it is
premature
for that decision to be taken until my judgment is
delivered.
MR SWANEPOEL
: I agree, M'Lord.
COURT
: But the
matter is to proceed, I have no difficulty with that, but if a
decision is taken and I need to know who the prosecutor
is and that I
need to be in contact with that prosecutor so that there is no
misunderstanding. But I believe an informed decision
with regard to
the continuation of prosecution or not may depend on the decision I
make and as a High Court I would regard it as
disrespectful if a
decision is taken now with full knowledge that a judgment is awaited
in this very matter concerning the same
issues as the
onus
would be different, but that the same issues and
that it is a
prima facie
decision is going to be taken, sorry, a decision
is going to be taken by a prosecuting authority based on information
that he is
given, which I believe will be inadequate until such time
as my decision comes out and I am planning to give this decision
certainly
I was hoping within a day or so of hearing argument. It
looks like argument may only be during court recess, but I would
appreciate
it if I can be given the number of the prosecuting
authority and that counsel are in my presence when I speak to the
prosecuting
authority.'
[46] Section 179 of the Constitution
deals with the NPA.
10
Its independence is guaranteed
therein. The judge is not entitled to discuss the prospects of the
case with the prosecutor or request
him or her to make a decision to
prosecute. There is no doubt that Spilg J wanted to speak to the
prosecuting authority. In my
view, the quality of his views on the
issues appear to have been impaired. He seems to have made up his
mind that Mabaso was guilty
of an offence; hence his desire that the
NPA should await the delivery of his judgment. In my view, what the
judge sought to achieve
can be seen as an attempt to intrude upon the
prosecutorial independence of the prosecuting authority in
contravention of the Constitution
and the
National Prosecuting
Authority Act 32 of 1998
.
General
remarks by Spilg J
[47] Spilg J made various comments during the trial. He
referred to his army training and involvement with the former South
African
Defence Force and South African Police Services and his
involvement with insurance companies etc. I do not intend to burden
this
judgment with all the comments which, in my view, were
unwarranted.
[48] In the result, Spilg J breached many of the canons
of judicial behaviour and was overzealous in his approach. Conduct of
this
nature cannot be countenanced and has the potential of bringing
the judiciary into disrepute. His behaviour constitutes an
irregularity
which would have vitiated the proceedings but for the
parties’ request that we consider the merits on appeal.
[49] It is to that issue that I now
turn. The judgment of the court below was assailed on the grounds
that the judge had failed
to apply recognised principles when dealing
with two mutually destructive versions and that he had, as a result,
failed to consider
the inherent improbabilities in the plaintiff's
evidence. Counsel for the plaintiff on the other hand asserted that
the trial judge
had given due consideration to the credibility of
witnesses and of the probabilities. Furthermore, he argued that the
defendant
had to discharge the
onus
with regard to its defence of
justification and that the court had considered the defence. It was
his contention that the police
had made too many mistakes and had
conspired against the plaintiff and falsely implicated him.
Conclusion
[50] It is trite that a party who
asserts has a duty to discharge the
onus
of proof. In
African
Eagle Life Assurance Co Ltd v Cainer
,
11
Coetzee J applied the principle set
out in
National
Employers' General Insurance Association v Gany
1931 AD 187
as follows:
'Where there are two stories mutually destructive,
before the
onus
is
discharged the Court must be satisfied that the story of the litigant
upon whom the
onus
rests
is true and the other false. It is not enough to say that the story
told by Clarke is not satisfactory in every respect, it
must be clear
to the Court of first instance that the version of the litigant upon
whom the
onus
rests
is the true version . . . .'
[51] The approach to be adopted when
dealing with the question of
onus
and the probabilities was outlined by
Eksteen JP in
National
Employers' General v Jagers
,
12
as follows:
'It seems to me, with respect, that in any civil
case, as in any criminal case, the
onus
can ordinarily only be discharged by adducing
credible evidence to support the case of the party on whom the
onus
rests. In a civil case the
onus
is obviously not as heavy as it is in a criminal
case, but nevertheless where the
onus
rests on the plaintiff as in the present case, and
where there are two mutually destructive stories, he can only succeed
if he satisfied
the Court on a preponderance of probabilities that
his version is true and accurate and therefore acceptable, and that
the other
version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether that evidence
is
true or not the Court will weigh up and test the plaintiff's
allegations against the general probabilities. The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the case and, if
the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true. If however the
probabilities are
evenly balanced in the sense that they do not favour the plaintiff's
case any more than they do the defendant's,
the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his evidence is true and that the defendant's
version is false.'
[52] In the present case the
plaintiff, during the trial, abandoned his main ground and pursued
his claim on the basis that Ledwaba
negligently discharged the
firearm. It follows that the plaintiff bore the
onus
of proof and had to prove that
Ledwaba had been negligent. Accordingly, the defendant no longer had
a duty to prove the defence
of justification as it could not raise
such a defence against a claim of negligence. In the result, the
plaintiff had to prove
the element of negligence on Ledwaba’s
part in order to succeed. Regarding the question of
onus
,
Spilg J remarked:
'I am satisfied that after subjecting the evidence in this manner the
truth is readily discernible. Moreover I am satisfied that
irrespective of who was required to discharge the
onus
, the
result will be the same.'
[53] I do not agree with the trial judge when regard is
had to the facts. It is difficult to comprehend how the judge could
make
this statement unless he had pre-judged the issues. He adopted
an approach that is flawed and which cannot be applied when faced
with two mutually destructive versions. It was imperative for Spilg J
to have been alive to the issue relating to the
onus
and to make a determination in that regard. Had the
trial judge adopted a proper approach and applied the principles set
out in
the
Jagers
case,
the result would have been different. I will hereafter show how the
trial judge erred in his approach.
(a)
The issue relating to the
time of the incident.
[54] It was submitted that the plaintiff’s version
that the incident occurred around 22h30 was more probable and that
his
evidence about the time-lines were merely estimates. This
argument cannot be sustained against the objective facts. There is no
dispute that Mabaso and Ledwaba's shift commenced at 23h00. There is
furthermore objective evidence that the paramedics were despatched
at
01h30 and arrived at the scene at 01h35. They left from the scene at
02h00 and the plaintiff was admitted at the hospital at
02h10. This
evidence cannot be disputed. Spilg J in his assessment of the
evidence remarked as follows with regard to the time
of the incident:
'However the plaintiff's recollection of time is not relevant. If he
is an hour out, it makes no difference to the version he gave.
It is
the failure of Mabaso to account to explain how all this could have
happened within 15 minutes that puts into question why
they delayed
in recording the time of the incident. It is a factor that I must
weigh.'
[55] There is no basis for this statement. The plaintiff
had a duty to discharge the
onus
.
His recollection of the time of the incident was in my view an
important factor. It is incorrect for the judge to state that the
plaintiff’s recollection in this regard is irrelevant. The
plaintiff’s version is clearly wrong against the background
of
the objective facts; that Mabaso and Ledwaba commenced duties at
23h00. They reported for duty at their office and thereafter
left to
conduct patrol duties. It follows that the incident could not have
taken place before 23h00 but after midnight. The plaintiff
wants the
court to believe that, after sustaining such severe injuries, he was
left unattended for more than four hours. His version
of the time
when the incident occurred cannot be true and has to be rejected. It
also raises a further question of why he lied
about the time and what
he was doing. The version given by Mabaso has a ring of truth. The
paramedics arrived shortly after the
incident. There is nothing
peculiar in Mabaso’s explanation on the timeline and how the
events ensued after the shooting.
In the result, the trial judge
erred when he accepted the plaintiff's version with regard to the
time of the incident.
(b)
Number of shots fired
[56] Both Mabaso and the plaintiff testified that they
had heard three shots being fired. Pelser and Singh testified that
they found
three spent cartridges. The trial judge despite the
absence of objective facts relied on the evidence of Maseko and that
of the
plaintiff that the Norinco carried nine rounds prior to the
shooting and concluded that at least four or five shots had been
fired.
He held:
'Accordingly the mere fact that no bullet appeared to have been found
by the repairer does not militate against the fact that it
had not
been removed after the incident and before it arrived at the
repairer.
. . .
Moreover, the plaintiff's own testimony that he heard three shots
fired yet confirms that there were nine rounds in the Norinco
give
little reason to believe that this evidence was manufactured. It is
only the police photographs taken later at the scene which
indicated
that only four bullets remained in the Norinco's magazine after the
incident.
. . .
Subject to any further contradictory evidence or anomaly I make the
finding that four shots were fired by Ledwaba which explains
why only
four bullets were found in the magazine after the incident whereas
the unchallenged evidence of the plaintiff is that
he had loaded the
Norinco with nine bullets and I apologise, I think there were four
rounds of ammunition found and accordingly
that five had in fact
being fired of which at least four are accounted: two in the driver’s
door and two that struck the
plaintiff.'
[57] Counsel for the plaintiff, in my view, correctly
conceded that there was no basis for this conclusion as the plaintiff
had
also stated that three rounds were fired. Accordingly there was
no factual basis for this finding. It follows that the judge was
obliged to accept the evidence presented by the parties and not make
his own assumptions or speculate.
(c)
Injury sustained by Mabaso
[58] It was submitted on behalf of the plaintiff that
Mabaso could have sustained the injury from contact with any object
when he
jumped away and fell on the ground after the shots were
fired. Counsel further argued that the abrasion around the eye did
not
appear to have been caused by a muzzle of a firearm. In this
regard, reliance was placed on the conclusion of the court below, in
terms of which it held:
'I however accept that I cannot account for that without speculation.
In other words the fact that the firearm was pushed into
his eye is
not the only reasonable possible explanation for his injury. It does
not accord with what was visibly seen and alleged.
It required the
person against whom the muzzle was placed to be moving towards the
plaintiff or being stationary for such an injury
to be inflicted.'
[59] This submission has no merit. Mabaso explained how
he sustained the injury. It was never suggested by anybody that the
injury
could be self-inflicted. Accordingly, Mabaso's version on how
he sustained the injury remained uncontroverted. There was some
bruising
around his eye. This is evident from the photographs and is
consistent with his version in that regard. It follows that the judge
erred when he rejected Mabaso’s version of how he sustained the
injury in the absence of evidence to the contrary. He should
have
accepted the evidence and not relied on conjecture and speculation.
(d)
Medical evidence
[60] The judge rejected the evidence of Dr Güldenpfennig
about the trajectory of the bullet. The doctor could not exclude the
possibility that the bullet upon entering the plaintiff's body came
into contact with the shoulder bone which would have caused
the
bullet to deflect and change its trajectory. It has to be borne in
mind that the plaintiff was leaning forward behind the seat
with his
back turned at an angle to Ledwaba. The exact position of Ledwaba
when he fired the rounds is unknown. But on Mabaso's
version, the
plaintiff was in the process of pulling Mabaso towards him whilst
hitting him with the Star PD pistol. Mabaso explained
that he
resisted and moved backwards. It is clear therefore that this was not
a static scene and this could explain the trajectory
of the bullet
which moved downwards. There was accordingly no basis for the judge
to ignore the evidence of Dr Güldenpfennig
in this regard.
(e)
Finding
that
Ledwaba
negligently
discharged
the
firearm
[61] As I had mentioned earlier in the judgment, the
judge concluded that Ledwaba unintentionally and negligently
discharged the
firearm. This finding is however at odds with the
evidence adduced before the court. There is the objective evidence
that the firearm
was tested at a firing range by Lurie. It was found
to be incapable of firing automatically. Lurie stated that it would
require
a conscious act to pull the trigger and that at the very
least one would have to depress the trigger every time before a round
could be fired. He further stated that it would require some skill
for one to fire the rounds in quick succession.
[62] In my view, it is improbable that the firearm,
having regard to its inherent inability to fire uninterruptedly, was
negligently
discharged three times. It will be recalled that the
acceptable expert evidence is that it requires conscious and
deliberate action
to discharge the firearm successively. The
probabilities, therefore favour the defendant's version that Ledwaba
could only have
discharged the firearm intentionally when defending
his colleague. The position of the spent cartridges as shown in the
photographs
was also consistent with Ledwaba approaching the Nissan
and firing deliberately in defence of his colleague. The court below
accordingly
erred when it concluded that Ledwaba had discharged the
firearm negligently as the evidence did not support such a
conclusion.
(f)
Police cover-up
[63] Counsel for the plaintiff submitted that the police
conspired against the plaintiff and falsely implicated him to cover
up
their actions when they shot him. It has to be borne in mind that
the whole incident started as a traffic offence. The metro officers
happened to observe the plaintiff committing the offence and decided
to execute their duties. There was no allegation that Pelser
had
manufactured the incident report to advance the conspiracy against
the plaintiff. Nor was it ever put to Pelser that allowing
Ledwaba
and Mabaso to write their statements in the same office constituted a
conspiracy.
[64] For the plaintiff's version to be true, the court
would have to accept that there was a conspiracy between the police
and the
metro officers, including Pelser, and that the whole story of
the firearm had been fabricated. Pelser would have had to manufacture
the evidence contained in the incident report and remove the extra
rounds within an hour. The plan would have to have involved
the
police officers from different units and the metro officers to
prepare for an uncertain event and implicate an innocent person.
Mabaso and Ledwaba would have foreseen that they would encounter
problems and that they would have to plant incriminating evidence
against the plaintiff to exonerate themselves. The court would have
to conclude that the Star PD firearm was deliberately placed
in the
Nissan to falsely implicate him. That version is, in my view,
far-fetched and has to be rejected. The police indeed did
not
properly secure the scene. That however, does not indicate a police
cover-up. At worst for the police, it reveals ineptitude.
In the
result there was no factual basis for the conclusion of the trial
judge. It was not appropriate for him to speculate and
find that
there was a conspiracy. The probabilities are that the Star PD pistol
could only have been in the plaintiff's possession
and was used by
him to attack Mabaso.
[65] In the result the judge misdirected himself when he
failed to decide the issue of
onus
of proof and in the process
disregarded the unsatisfactory aspects of the plaintiff’s
evidence. He did not consider the inherent
contradictions in the
plaintiff’s testimony
vis a vis
his written statements
to the police and Dr Güldenpfennig as well as against the
objective facts. The plaintiff’s version
is, on the objective
facts and probabilities, false and not sustainable. The plaintiff
accordingly failed to discharge the
onus
of proof. In these
circumstances, the court below erred in its conclusion when it found
that Ledwaba negligently discharged the
firearm. It follows that the
plaintiff's claim should have been dismissed. The appeal has to
succeed.
[66] In the result the following order is made:
1 The appeal is upheld with costs including those
attendant on the employment of two counsel.
2. The order of the court below is set aside in its
entirety and
substituted as follows:
'The plaintiff's claim is dismissed with costs.'
_______________
N Z MHLANTLA
JUDGE OF APPEAL
APPEARANCES
For Appellant: R Stockwell SC
G M Goedhart
Instructed by: Webber Wentzel, Johannesburg
Matsepes Inc, Bloemfontein
For Respondent: A J Swanepoel
Instructed by: H C Makhubele Attorneys, Johannesburg
McIntyre & van der Post, Bloemfontein
1
S
v Roberts
1999 (4) SA 915
(SCA) at 923
A.
2
Take
and Save Trading CC v Standard Bank of SA Ltd
2004
(4) SA 1
at para 4.
3
Jones
v National Coal Board
[1957] EWCA Civ 3
;
[1957] 2 All ER
155
(CA) at 159A-B. See also
Yuill v
Yuill
[1945] 1 All ER 183
at 189.
4
As
to the scope of this see Hon J J Spigelman AC
"Truth
and Law'
[2011] 85
ALJR
,
746.
5
S
v Rall
1982 (1) SA 828
(A) at 831H-832G.
6
S
v Le Grange
[2008] ZASCA 102
;
2009 (1) SACR 125
para 21.
7
Kruger
v Ludick
1947 (3) SA 23
(A) at 31. See
also
Bayer South Africa (Pty) Ltd v
Viljoen
1990 (2) SA 647
(A) at
659H-660B and
Goldstuck v Mappin &
Webb Ltd
1927 TPD 723
at 734.
8
Rowe
v Assistant Magistrate, Pretoria
1925
TPD 361
at 369.
9
S
v Mafu
[2008] ZAGPHC 38
;
2008 (2) SACR 653
(W).
10
Section
179(2) of the Constitution provides:
'The
prosecuting authority has the power to institute criminal
proceedings on behalf of the State, and to carry out any necessary
function incidental to instituting criminal proceedings.'
11
African
Eagle Life Assurance Co Ltd v Cainer
1980
(2) SA 234
(W) at 237D-H.
12
National
Employers' General Insurance v Jagers
1984
(4) SA 437
(E) at 440D. See also
Stellenbosch
Farmers' Winery Group Ltd v Martell et cie
2003
(1) SA 1
(SCA) para 5 and
Dreyer v AXZS
Industries (Pty) Ltd
2006 (5) SA 548
(SCA) at 558E-G.