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2024
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[2024] ZAFSHC 2
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Kgalane v Minister of Police (514/2022) [2024] ZAFSHC 2 (5 January 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
514/2022
In the matter between:
MOHLABANE
KGALANE
and
MINISTER
OF POLICE
PLAINTIFF
DEFENDANT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
12, 13 SEPTEMBER and 31 OCTOBER
2023
DELIVERED
ON:
05 JANUARY 2024
[1]
The Plaintiff instituted a delictual claim
against the Defendant for damages in the amount of R2 630 000.00
arising out of
the injuries sustained when the Plaintiff was shot on
the leg. The Plaintiff alleges that he was negligently shot by
unknown members
of the South African Police Service acting within
their scope of duty and employment with the Defendant.  The
parties have
agreed to a separation of the merits and quantum and
this court accordingly ordered such separation in terms of Rule 33(4)
and
the issue of liability will thus be adjudicated first in this
trial.
[2]
The defence of the Defendant is succinctly captured as follows in the
plea:
“
2.
AD PARAGRAPH 4 THEREOF
2.1
… the defendant avers that there were no police officials who
were around the area where the plaintiff alleges that he
was shot by
the police. There is no evidence linking any police official to the
alleged shooting. Defendant denies that any of
its members were
involved in the shooting incident.
2.2
On or about the 31
st
May 2021 the police were deployed on the R30
public road at Theunissen town, Free State where there(sic) protests.
Members of the
community who were protesting were moving from the
location adjacent to the R30 into R30 and blocking it and throwing
stones at
passing vehicles.
2.3
As a means to disperse the protest on R30 the police used rubber
bullets firing towards the protesters who were around the R30.
The
police only concentrated onR30 and did move into the location at the
time and date mentioned in the Plaintiff’s particulars
of
claim.
3.
AD PARAGRAPH 5 & 6 THEREOF
The
defendant has no knowledge of the incident as alleged by the
plaintiff and denies that any police official was involved in such

incident of shooting and thus deny that any police official in the
employ of the defendant was negligent as alleged by the plaintiff
in
his particulars of claim.”
[3]
Three witnesses, who included the Plaintiff testified on behalf of
the claimant. The Plaintiff testified
that he was from work on the
day of this incident. Along the way to his home he made an excursion
to the shop to buy candles as
there was load shedding. He was walking
on foot. Having bought the candles, he proceeded on his way home.
Along the road in a street
which was in the township where he
resided, he met three policemen in uniform and also wearing bullet
proof vests. The policemen
had firearms in their possession. He
suddenly heard three shots being fired. He felt something hot or warm
on his right leg. He
had been shot with rubber bullets. He fell to
the ground.
[4]
He was near the house of one Papiki. He screamed and called Papiki
for help. Papiki came out of
his house and pulled him into his yard.
The policemen shot again and Papiki left him and ran into his house.
Later Papiki came
out again and pulled him into the yard. He was
later taken to hospital for treatment.
[5]
Mr Lebohang Alfred Moleti also testified on behalf of the Plaintiff.
At the material time he owned a
shop in the area where the Plaintiff
resided.  He confirmed that on the day of this incident the
Plaintiff was at his shop
and bought candles. He also testified that
he saw when the Plaintiff was shot in the street where his shop is.
He further testified
that the police were also under his carport and
were shooting at people who were around. According to him, the police
were also
chasing people who were on the football ground. He
testified that the police also hid behind a tree which was behind his
shop and
shot numerous times.
[6]
The last witness to testify for the Plaintiff was Mr Innocent Mantswe
Mojaki (also known as Papiki).
He testified that at about 18h00 he
was at home watching television when he heard the screaming of the
Plaintiff at his gate. The
screams of the Plaintiff were of a person
in pain and seeking help. He went out to inspect what was happening.
He found the Plaintiff
sitting on the ground.  He enquired from
the Plaintiff as to what was wrong and the latter informed him that
he was shot by
the police. The Plaintiff was full of blood on the
right leg. The Plaintiff asked him to get him in his yard. While he
was helping
him into the yard, he heard a shot being fired. He ran
away into his house. He, however, confirms that he saw three
policemen in
uniform with ‘long firearms’. A while later
he came out of his house and took the Plaintiff into his house. His
wife
and son arrived in a car and the Plaintiff was taken away. That
concluded the Plaintiff’s case.
[7]
The Defendant called two witnesses. The first witness was Mr
Olebogeng Phillemon Setlogelo. He is employed
by the Independent
Police Investigative Directorate as an investigator. He was
essentially called to testify on the circumstances
surrounding his
taking of the statement of Mr Mojaki. He confirmed that he read the
statement back to him after he had written
it.
[8]
Warrant Officer Ralikhomo was the last witness to take the stand for
the Defendant. At the time that
he testified in these proceedings he
had been in the South African Police Service for thirty-three years.
His is the commander
of the Public Order Policing in Selosesha, Thaba
Nchu.  On 31 May 2021 his unit was called to assist at
Theunissen where there
were protests. He was also in charge of the
unit. He testified that his unit was the first one to arrive on the
R30 provincial
road where it was later confined for the rest of the
operation. He confirmed that there were only officers of Selosesha on
the
R30 provincial road from the morning until 20h00.He testified
that no incident of shooting was reported to him on 31 May 2021.He

did not know how many rubber bullets were fired on this day. He
confirmed that he only authorised the firing of two rubber bullets.
[9]
By agreement certain evidential material in the form of documents was
handed into record. I will specifically
refer to Exhibit C, which is
the Incident Registration Information System report (IRIS report)
during the cause of this judgment.
[10]
The crisp issue for determination is whether the Defendant is liable
for the injuries sustained by the Plaintiff
when he was shot on the
leg. Allied to this question is whether the Plaintiff was shot in the
location by the police acting within
their scope of duty and
employment with the Defendant.
[11]
A delict is generally defined as an act that is wrongful and culpable
and causes harm to another. In
HL
& H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
[1]
the court stated that in general the essential elements of delict
are: a) a conduct, initiating wrongfulness by the defendant;
b)
fault, in this instance negligently by the defendant; c) harm
suffered by the plaintiff’; d) causal connection between
the
conduct and the harm.
[12]
The versions of the parties are diagrammatically opposite to each
other. The Plaintiff asserts that he was
shot in the location when he
came from the shop of Mr Moleti. On the other hand, the pleaded case
of the defendant is
that ‘the police used rubber bullets
firing towards the protesters who were around the R30’
and
that ‘
the police only concentrated on R30 and did not move
into the location at the time and date mentioned in the Plaintiff’s
particulars
of claim.’
[13]
It is trite law that the Plaintiff bears the overall onus of proof.
In this case he needs to prove that he
was shot by the police in the
location and was not part of the people who were involved in the
protest on the R30 on the date and
time he alleges in the particulars
of claim. Simply put, he must prove on a balance of probabilities
that his version is more probable
than the version of the Defendant.
[14]
The version of the Plaintiff and his witnesses is largely undisputed.
This is understandable in view of the
denial by the police that any
of their members were at the scene where the alleged shooting took
place. The police cannot deny
that the Plaintiff was shot and
sustained injuries. There is no other explanation as to how he could
have sustained an injury.
The police can also not dispute that he was
shot by rubber bullets as they do not even know how he came to be
injured.
[15]
The crux of the submission on behalf of the Defendant is that the
‘version by the Plaintiff that he
was shot in front of the
house of Papiki is suspicious and improbable because Papiki did not
hear any gun shots even though the
shooting is said to
have occurred in front of his shop.’
[2]
The cross examination of the Papiki clearly established that he
did not hear the first shooting when the Plaintiff was injured.
What
however remains undisputed is that the Plaintiff screamed and called
for the assistance of Papiki in front of his house. The
testimony of
the Plaintiff is corroborated in material respect that while he was
being hauled into the yard by Papiki, the police
fired a shot. That
Papiki left the Plaintiff and ran away into his home again provides
another corroboration to the testimony of
the Plaintiff. Much as it
is argued that there were contradictions in the versions of the
Plaintiff and Papiki, such contradictions
are immaterial. In my view,
the contradictions in the testimony when viewed in the totality of
the evidence rather seem to show
that Papiki and the Plaintiff did
not tailor their evidence to be the same.
[16]
The testimony of W/O Ralikhomo together with the IRIS report
establishes the improbability of the version
of the Defendant. W/O
Ralikhomo was the commander in charge of a unit from Selosesha. Under
his command were seven other members.
His evidence clearly show that
his unit was confined to the R30 provincial road. Of importance, his
testimony further established
that his unit was not the only unit
called upon to quell the protests at Theunissen on that day. It is
not his testimony that all
other units besides his were also confined
to the R30 road. He could only testify about the movements of his
unit as well as the
rubber bullets issued to his group.
[17]
The IRIS report, compiled by the police shows the following:
“
At
11h00 W/O Kgatlane reported that approximately 500 residents of
Masilo approached the R30. They were burning tyres
inside
Masilo
(my
emphasis). They threw stones at people’s vehicles
in
the location
.
Only a few attempted to barricade the R30.”
[3]
“
The
group scattered back into the location.”
[4]
“
At
14:45 W/O Kgalane reported that …people burned tyres inside
Masilo.”
[5]
“
At
17h01 members patrolling the area and monitoring the situation”
[18]
The IRIS report show that apart from the unit under the command of
Ralikhomo, there were other
units at Theunissen on the day of this
incident. according to Exhibit D, W/O Kgatlane was the unit commander
of one such unit.
While the report by W/O Kgatlane related to an
incident which happened at 11h00, it contradicts in material respect
the pleaded
case of the Defendant that the police were only confined
to the R30 road. I say this because it is inconceivable that while
the
residents were burning tyres and throwing stones in the location,
the police would choose not to stop the commission of such offences

and confine themselves on the provincial road. Common sense dictates
that the police would attend the scenes where there were unrests,
in
this case, in the location.
[19]
In cross examination, W/O Ralikhomo conceded that he could not deny
that other members of the
police got in the location on foot. He also
accepted that he did not see what those members did while they were
in the location.
Of further importance the IRIS report show that the
police fired over 70 rubber bullets on that day. The version of the
Defendant,
seen through the evidence of W/O Ralikhomo and the IRIS
report make it highly improbable to the R30. It is therefore my
finding
that the police were not confined to the R30 provincial road.
[20]
The submission in argument on behalf of the Defendant that ‘the
probability is that the
Plaintiff was amongst the people throwing
stones at the cars and that he was shot there and crawled to Papiki’s
place’
is improbable and calls for speculation. The Defendant
did not plead that the Plaintiff was part of the people protesting
and was
shot during the protests. He did not allege any justification
to thwart the wrongfulness alleged by the Plaintiff. Such speculation

must be rejected. In
Minister
of Safety and Security v Slabbers
[6]
the court said the following:
“
The purpose of
pleadings it to define the issues for the other party and the court.
A party has a duty to allege in the pleadings
the material facts upon
which it relies. It is impermissible for the plaintiff to plead a
particular case and seek to establish
a different case at the trial.
It is equally not permissible for the trial court to have recourse to
issue falling outside the
pleadings when deciding a case.”
The Defendant did not
plead that the Plaintiff was part of the people protesting and was
shot during the protests. The Defendant
did not allege any
justification to thwart the wrongfulness alleged by the Plaintiff.
What is submitted is a mere speculation which
must be rejected.
[21]
The Plaintiff’s claim is founded on the
actio
iniuriarum
.
The infringement the Plaintiff seeks compensation on, arises out of
the right to bodily integrity, which is both physical and

psychological. The court in
Minister
of Justice v Hofmeyer
[7]
said the following:
“
One
of an individual’s absolute rights of personality is his right
to bodily integrity. The interest concerned is sometimes
described as
being one in
corpus
,
but it has several facts. It embraces not merely the right of
protection against direct or indirect physical aggression or the

right against false imprisonment. It comprehends also a mental
element. For present purposes a convenient summary of the position
is
to be found in W A Joubert’s
Grondslae
van die Persoonlikheidsreg
(1953) at 131:
‘
(1)
Die reg op fisiese integriteit
Die
geobjektiveerde regsgoed is hier nie die liggaam in die gewone
konkrete sin van die woord nie, maar
die hele fisies-psigiese kant
van die persoonlikheid
. Die mens het onder hierdie hoof 'n
persoonlikheidsreg t a v : die
liggaam
, waardeur hy beskerm
word teen enige fisiese aantasting daarvan, hetsy deur gewelddadige
besering, hetsy op meer indirekte wyse
soos deur die toediening van
gif, die veroorsaking van fisiese skokke, ens.; onafskeibaar van die
voorgaande, die
gesondheid
in volle omvang, insluitende die
verstandelike welstand; die
liggaamlike vryheid
, sodat hy
beskerm word nie net teen gevangehouding nie maar ook teen enige
belemmering van die bewegings-en handelingsvryheid;...."
[22]
The police officials who shot the Plaintiff failed to live up to the
standard of a reasonable
police officer in the position of the
Defendant’s employees. When they shot the Plaintiff with three
rubber bullets at close
range, they should have foreseen the
reasonable possibility that their conduct would injure the him. It is
undisputed that they
failed to guard against such occurrence. It
cannot be argued otherwise that there is a clear connection between
the wrongful conduct
of the employees of the Defendant and the injury
the Plaintiff sustained. That the police officials who shot the
Plaintiff were
conducting the business of the Defendant cannot be
disputed. I accordingly find that the Plaintiff was shot by members
of the South
African Police acting within their scope and duty with
the Defendant.
[23]
it is trite that costs are in the discretion of the court. There was
an application to compel
which was withdrawn by agreement between the
parties and costs thereof stood over for later adjudication. I am not
satisfied that
a proper case has been made out for the costs in that
regard. I accordingly make the following order:
ORDER
1.
The Defendant is liable for 100% of the Plaintiff’s proven or
agreed upon damages;
2.
The Defendant is liable for the Plaintiff’s costs of the trial;
3.
Each party shall bear his costs of the application to compel.
P.
E. MOLITSOANE, J
On
behalf of the Plaintiff:
Adv.
HJ van der Merwe
Instructed
by
Symington
& De KOK
BLOEMFONTEIN
Ref
FKM
0147
On
behalf of the Defendant:
Adv.
NM BAHLEKAZI
Instructed
by
State
Attorney
BLOEMFONTEIN
Ref
66/202200165/P7M
[1]
2001(4) SA 814(SCA) at para 13.
[2]
See para 8.6 of the Defendant’s Heads of Argument.
[3]
See Plaintiff’s trial bundle, page 51.
[4]
See Plaintiff’s trial bundle, page 52.
[5]
See Plaintiff’s trial bundle, page 53.
[6]
668/2009[ZASCA] 163(30 November 2009).
[7]
1993(3) SA 131(A) at 145J- 146A.