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[2023] ZAFSHC 33
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Nkoane v Minister of Police (3920/2020) [2023] ZAFSHC 33 (30 January 2023)
FLYNOTES:
POLICE RUBBER BULLETS
DELICT
– Necessity – Rubber bullets – Plaintiff struck
in eye – Police contending that riotous crowd
throwing
stones and other missiles – Contending that justified to
restore public order and also to protect life and
property –
Police should have foreseen injury in residential area – Not
adhering to rule not to shoot at head
or at person running away –
Conduct wrongful and unlawful.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3920/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TINNY
GENEVA
NKOANE
Plaintiff
And
MINISTER
OF
POLICE
Defendant
HEARD
ON:
6,7 & 9 SEPTEMBER 2022
WRITTEN
HEADS OF ARGUMENT DELIVERED ON 15, 21 & 22 SEPTEMBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON
:
This
judgment was handed down electronically by circulation to
the
parties' representatives by email and by release to SAFLII. The date
and time for hand-down is deemed to be 14h00 on 30 January
2023.
[1]
In this matter, the plaintiff claims an amount of R1.7 million as
damages from the
defendant resulting from the injures she sustained
after she was shot in the left eye with a rubber bullet on 15 August
2019. The
plaintiff alleges that she was shot by the members of the
South African Police Services (“the police”) there and
then
acting within the course and scope of their employment with the
defendant.
[2]
Before the commencement of the trial, an inspection
in loco
was held at the instance of the parties and on the basis that it
would enable the court to follow the oral evidence in relation
to the
scene where the shooting incident took place according to the
plaintiff and where the police discharged the rubber bullets
according to the defendant.
Various
points were noted to wit: the point where the plaintiff was walking
immediately before she was injured and the point where
the police
discharged rubber bullets including the location of these points to
each other. The distances between these points were
not measured,
instead it was agreed between the parties that evidence will be led
in that regard.
[3]
The only issue that I have to determine is in respect of the merits
only. The parties
have agreed to separate the issues relating to the
merits and quantum.
[4]
It is common cause that immediately before the plaintiff was injured,
a violent protest
had erupted in the vicinity of the plaintiff’s
residence and
in
order to disperse the riotous crowd, the police discharged stun
grenades and also fired rubber bullets at the crowd. It is also
indisputable that at
all material times hereto the
police were acting within their scope and scope as employees of the
defendant. The plaintiff’s
claim is asserted in the
alternative. It is the plaintiff’s case that the police are
guilty of breaching their duty to protect
her, to ensure that no harm
befell her and that their conduct did not endanger her physical
wellbeing or life by unjustifiably
shooting her. In the particulars
of claim, the plaintiff alleges that:
“
4.1. On
the 15
th
of August 2019, there was community
unrest at Section T, Botshabelo.
4.2. At
about 07:15 on the morning of the 15
th
of August 2019, the
plaintiff was walking to a shop to buy bread in Section T,
Botshabelo. The plaintiff was dressed in her school
uniform.
4.3. Whilst
walking in the street, the plaintiff was approached by a police
armoured vehicle and was shot on the left eye
(“the affected
eye”) with a rubber bullet by members of the South African
Police Service who were in that vehicle and
who, at that time were
attempting to restore the public order to pursue the community
members involved in the unrest…”
[5]
In the alternative, the plaintiff accuses the police of negligent and
wrongful discharge
of rubber bullets in the direction of the
plaintiff and in so doing, the plaintiff sustained an injury to her
left eye which resulted
in the loss of her eye. The police should
have foreseen:
“
10.1
The presence of the plaintiff at the scene of the shooting;
10.2 That the
plaintiff could be struck by a rubber bullet or projectile so
discharged if same was discharged in the plaintiff’s
direction;
and
10.3 That the
plaintiff could be seriously injured if struck by the rubber bullet
or the projectile.”
[1]
[6]
The defendant has denied liability and has also pleaded alternative
defences namely
that, the plaintiff’s injuries were not as a
consequence of the rubber bullets fired by the police and in the
event of this
being proven, the defendant avers that the plaintiff
was part of the riotous crowd which was throwing stones and other
missiles
at the police. She sustained the injury when the police
fired rubber bullets at that crowd to ward of the attack on the
police
and their Nyala. The police’s actions were thus
justified, they acted to restore public order and also to protect
life and
property.
[7]
At the pre-trial hearing the parties agreed that the only issues to
be determined
by the trial court was the lawfulness of the
defendant’s actions and whether the defendant is liable for
damages as a result.
[8]
The plaintiff gave evidence in support of her claim and also called
Mr Tshediso Stanely
Moneri as a witness.
[9]
It was the plaintiff’s evidence that at the time of the
incident she was a scholar
aged 17 years old. Between 7h20 and 7h30
she left home to buy bread at tuckshop located within the same street
as her home. She
was dressed in her school uniform as she was
supposed to go to school on that day.
[10]
She was about ten meters away from home when she saw a group of about
ten community members running
towards her. She did not know why they
were running so she continued walking then moments later, she heard a
sound of a gunshot.
She immediately fell down. Her eyes burned, blood
was streaming down her face and she thought she could have been shot.
[11]
Four police officers dressed in police uniform came and stood next to
her for about ten minutes.
She cried and asked for help but they
simply walked away, got into a police armoured vehicle (“Nyala”)
and drove off.
[12]
Moneri and Ms Ntombizodwa Zanele came to assist her by taking her
home. An ambulance was called
but it could not reach her home as the
road was barricaded as a result, she was taken to where the ambulance
was waiting at another
section of the township. The ambulance ferried
her to Pelonomi hospital on the next morning she was transferred to
National Hospital
where he left eye was removed.
[13]
Under cross-examination, she denied of having being part of the
unrest. She stated that she did
not even know there was an unrest.
[14]
It was her testimony that she did not see the police shooting at her
as they were probably behind
the running protesters. The first time
that she saw them was after she had fallen to the ground injured and
bleeding.
[15]
She was adamant that she was shot by the police because immediately
after she heard the sound
of a gunshot she fell down injured and
bleeding. The police then came and stood next to her. Later, she saw
the rubber bullet at
her feet and she was able to recognize it
because she had been previously shot with a rubber bullet.
Furthermore, the doctor who
examined her after she was injured
[2]
confirmed that the injury was caused by a rubber bullet and that if
it was live ammunition, she would have died.
[16]
It was put to her that there were discrepancies in her version in
that, in her particulars of
claim she alleged that the police
approached her travelling in the Nyala and shot her whereas in her
testimony, she told the court
that she only saw the police after she
had fallen down injured. Similarly, in her statement to the police
taken shortly after the
incident
[3]
she mentioned having been admitted at Botshabelo hospital from the
day of the incident until discharged on 18 August 2019 whereas
she
testified that she was also admitted at Pelonomi and later at
National hospital.
[17]
The plaintiff’s response was that she did not see the police or
their Nyala before she
was shot and with regard to what is stated in
the statement, she was only 17 years old when she deposed to the
statement and it
was never read back to her to confirm its contents.
[18]
Moneri testified that it was about 6 and 7 in the morning when he was
woken up by a commotion
of police Nyalas driving up and down in their
area. He was walking towards the soccer field to see what was taking
place when he
saw a group of people running towards him being chased
by the police. The police were firing at them with big guns. After
the group
had passed he found himself facing the police he then ran
into Monate tavern and hid behind the wall facing the street.
[19]
From his hiding place, he observed the plaintiff in her school
uniform walking down the street
and before he could speak to her, he
saw her falling to the ground. The police kept on advancing towards
her and when their Nyala
approached they climbed into it and left.
[20]
When he saw that the plaintiff was holding her face and bleeding, her
went over to help. He realized
that she had been shot with a rubber
bullet. It was laying at her feet covered in blood. He knows what a
rubber bullet looks like
because he had been previously shot with a
rubber bullet. He then took her home with the assistance of other
community members.
The ambulance that was called could not access the
street to the plaintiff’s home as it had been barricaded by the
protesters.
The plaintiff had to be carried to the ambulance at
another section of the township.
[21]
During cross-examination, he stated that the place where the
plaintiff was shot is about 8 meters
from where he was hiding. He was
able to see her and her surroundings because he was by the fence
facing the street. He could also
clearly see the police when they
approached in the plaintiff’s opposite direction firing at the
running protesters and subsequently
shooting the plaintiff on the
face.
[22]
He concluded his evidence by stating that the plaintiff was shot by
the police, they were the
only ones who had firearms and shooting at
people.
[23]
The defendant’s version was relayed by four members of the
Public Order Policing unit of
the South African Police Services
(“POP”)
viz
: Captain Khanu Benjamin Maboe, warrant
officer Morake William Rapudingoana, warrant officer John Kgaelele,
and sergeant Thapelo
Chere Motsoeneng. Their experience and service
in the police respectively, ranged between 15 and 36 years.
[24]
Maboe is the unit commander of POP in Selosetsha. He testified that
around 4:15 the police went
to the soccer field situated next to the
main road in Botshabelo, the Jasmin Makgothu Highway (“the
highway”) to provide
protection to the Municipality officials
who were under attack from a group of violent protesters. The unrest
had erupted following
the dismantling and removal of incomplete
shacks that were erected in the soccer field. Stones and other
missiles were thrown at
the Municipality’s officials, their
vehicles including the police.
[25]
In order to control and disperse the riotous crowd, the police
discharged stun grenades and also
fired rubber bullets at the crowd.
The crowd was relentless, they continued with their attack causing
the
police and the Municipality’s officials to
abandon the site. The police retreated and went to stand guard at the
highway however,
the situation became volatile and he realized that
they needed backup. At that time, they were only fifteen and
travelling in four
soft tops “Kombis” and sedans.
[26]
He mobilized more police officers and also requested Nyalas as their
stone resistant as compared
to the soft tops. Around 6 and 6h15
respectively, backup arrived from Thaba Nchu with two Nyalas and from
Bloemfontein with more
Kombis.
[27]
One Nyala remained where Maboe was posted and the second one went to
stand guard next to the
Reahola complex.
[28]
Soon thereafter, the driver of the second Nyala, Rapadingoana called
for assistance stating that
their Nyala was stuck in a ditch next to
the soccer field while pursuing the protesters. He also reported that
they were under
attack, the protesters were taking advantage that the
Nyala was stuck and pelting them with stones. One of the Kombis went
over
to assist while Moboe and the remaining officers went to attend
to a complaint about protesters vandalizing a school.
[29]
Under cross-examination he stated that the spot where the Nyala was
stuck was about four hundred
(400) meters away from the residential
area.
[30]
It was his testimony that when the police fired rubber bullets the
protesters ran into the residential
area. He has no knowledge whether
there are police officers who chased after the protesters into the
residential area, particularly
next to Monate tavern.
[31]
He further stated that no injuries were reported to him on that day,
he only found out about
the plaintiff’s incident when he was
contacted by an officer from the Independent Police Investigative
Directorate (IPID)
who was investigating the circumstances
surrounding the plaintiff’s shooting.
[32]
He was asked about the shooting incident involving one of the
officers, sergeant Thabiso Edward
Letsili. He was one of the officer
involved in this operation and in his warning statement
[4]
he admits that the police went into the township travelling in a
Nyala and that he had alighted from the Nyala and chased after
a man
that he had observed throwing stones at the Nyala. Whilst chasing
this man, he shot him on the head with a rubber bullet
and arrested
him.
[33]
His response was that the golden rule regarding the use of rubber
bullets is that, the shot must
be aimed at the lower part of the body
never at the head and definitely not at a person who is running away
because the main aim
of the police is to restore order. Furthermore,
according to police protocol, any injuries resulting from incidents
involving the
police should have been reported to him over the radio
and he must in turn report to IPID.
[34]
The next witness called was Rapudingoana, the driver of the Nyala
that was stuck in the ditch.
It was his testimony that the Nyala got
stuck while they were chasing the protesters and when the protesters
realized that the
Nyala was stuck, they returned and threw stones. To
ward off the attack, the police alighted from the Nyala and
discharged stunt
grenades and also fired rubber bullets at the crowd.
[35]
The backup arrived in a Kombi and found the protesters still pelting
stones. He does not remember
what happened afterwards as he
concentrated on extracting the Nyala from the ditch and when he
ultimately succeeded he drove the
Nyala back to the highway. None of
the officers who were in the Nyala went into the residential area. He
did not see the officers
who came with the Kombi going into the
residential area.
[36]
In cross-examination he told the court that he does not know the
distance between the township
and the area where the Nyala was stuck.
[37]
Kgaelele was in the Nyala that was driven by Rapudingoane. On arrival
at the highway they found
a group of protesters pelting stones at the
vehicles passing by. They (the police) pursued the protesters in the
Nyala but it got
stuck in a ditch. The protesters returned and pelted
stones at them, they exited the Nyala and fired rubber bullets at the
protesters
with the assistance of the backup.
[38]
He told the court that after the Nyala was extricated, they drove
back to the highway. He does
know where the Kombi or its occupants
went and he also does not remember whether some of the officers who
came with the Kombi went
into the township or not.
[39]
The last witness to be called was Motsoeneng. He is one of the seven
officers who came with the
Kombi. He confirmed that when his crew
arrived at the spot where the Nyala was stuck they found the
protesters throwing stones
at the Nyala and barricading the road.
Four of them alighted from the Kombi, it then drove to the police
station while they remained
and assisted their colleagues by firing
rubber bullets at the crowd which was repeatedly advancing the Nyala
and throwing stones.
After the Nyala was extricated all the police
officers boarded the Nyala and went back to the highway.
[40]
He also did not see any police officer going into the residential
area. He also did not hear
of any injuries.
[41]
Thus is in short the summary of the evidence before this court and in
addition to the parties’
viva voce
evidence, documents
marked as
Exhibit “A5
”, “
A26”
and “
A242”
were also handed in as evidence.
[42]
After all the evidence had been proffered, the issues which remained
to be determined are whether
the plaintiff’s injury resulted
from being shot by the police and if the court finds that indeed the
plaintiff was shot by
the police as alleged, a further question is
whether there is a basis of justification as pleaded by the
defendant.
[43]
The onus is on the plaintiff to prove that t
he
injury she sustained which ultimately resulted in her losing her left
eye was caused by the police
on a balance of
probabilities.
[44]
The parties have presented mutually destructive versions with regard
to the circumstances under
which the plaintiff was injured. So, in
National
Employers General Insurance v Jaggers
[5]
and S
tellenbosch
Farmers’ Winery Group Ltd
&
Another v Martell Et Cie & Others
[6]
the courts highlighted the technique to be adopted by a court to
resolve factual disputes as follows:
“
To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’ reliability will depend, apart from the factors
mentioned under (a) (ii),
(iv) above, on (i) the opportunities he had
to experience or observe the event in question and (ii) the quality,
integrity and
independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail.”
[45]
Applying this technique to the germane facts, the plaintiff gave a
detailed account of how, where
and in what manner she sustained the
gunshot injury. The plaintiff was an honest witness. She conceded
that she did not see the
police shooting at her. All she was able to
tell the court is that, after seeing a group of people running
towards her she heard
a sound of a gunshot. Moments later she felt an
object striking her on the face, she fell down in excruciating pain
and also noticed
that she was bleeding. Whilst still on the ground,
the police came to hover above her then left and a rubber bullet was
next to
her feet.
[46]
While I accept that there were certain contradictions between the
plaintiff’s oral evidence
and the documentary evidence
including the particulars of claim in relation to whether the police
approached her in a Nyala before
she was shot or after and how many
days and which hospitals she was hospitalized after the incident: I
do not consider these discrepancies
material to warrant the rejection
her evidence in
toto.
Evidence is not required to perfect but
truthful, in fact the minor discrepancies show honesty in the sense
that the evidence has
not be tailored to suit the circumstances of
the case.
[47]
I am satisfied that the plaintiff’s evidence can be relied upon
as the truth of what occurred
on that day. Her evidence is also
corroborated by:
47.1 Moneri. He saw
the police chasing shooting at the protesters which prompted him to
go and hide in the yard of Monate
tavern. Whilst there he saw the
plaintiff being shot by the police. It does not end there, after the
plaintiff fell he also saw
the police approaching her and after they
left, he found a rubber bullet covered in blood next to the
plaintiff;
47.2 The J88
medical report, exhibit “A5”: it states that the
plaintiff was “
shot with a rubber bullet in the eye (left)
this morning
”; and
47.3 The warning
statement by sergeant Letsili, exhibit “A242”: it is
admitted that on the day of the incident
the police entered the
residential area and one of the protesters was shot in head with a
rubber bullet.
[48]
The plaintiff’s version fits in with the
objective facts. I have found no reason to reject it. No
evidence has
been tendered to gainsay the plaintiff’s version that the
object that caused her the injury was a police rubber
bullet.
[49]
On the other side, it was expected of the defendant’s witnesses
to adduce evidence to prove
that the plaintiff was not shot at the
street of her home as she alleged but at the site where the Nyala was
stuck and the police
shot her in retaliation for stoning the police
and their Nyala.
[50]
None of the witnesses testified to that effect, Maboe told the court
that he remained on the
highway and later went to attend to a
complaint about a school being vandalized. He was adamant that he had
no knowledge about
the incident involving the plaintiff’s
shooting. I find that it is quite peculiar that as a unit commander
Maboe would have
no knowledge about the plaintiff’s incident
including the other shooting incident involving Letsili who was an
officer under
his command.
[51]
As regards, Rapudingoane he first testified well when he was giving
direct evidence stating how
he was able to see the protesters
throwing stones at the Nyala and that even went out of the Nyala to
discharge stunt grenades
and rubber bullets at the protesters
however, during cross-examination his demeanour was that of a person
who could not admit or
deny seeing the police chasing the protesters
all the way to the township. His other version was that he did not
see the police
going to the township because he was concentrating on
extricating the Nyala from the ditch. Same as Kgaolele and
Motsoeneng, when
their versions on this aspect were tested under
cross-examination, their responses were also that they could not
recall if the
police went to the township and they also did not see
that happening. It is important to note that on the available facts,
Motsoeneng
was in the same crew as Letsili. They were the backup crew
that travelled from Bloemfontein.
[52]
It is my considered view that these witnesses’ lack of candour
affected their credibility.
[53]
Also on the probabilities, evidence is either probable or not. It is
highly improbable that the
plaintiff would have been shot by someone
else other than the police. As correctly pointed out by Moneri no one
else was discharging
rubber bullets on that day and at the time the
plaintiff was injured except the police.
[54]
The defendant’s attempt to circumvent the truth did not end
there. Having regard to the
agreement between the parties at the Rule
37
[7]
pre-trial conference the
fact that the plaintiff was shot by the police was conceded. What
remained to be determined was the issue
relating the lawfulness of
the defendant’s actions. Instead, at the trial and during
cross-examination of the plaintiff the
defendant summersaulted and
re-introduced the defence disputing that the police were responsible
for shooting.
[55]
According to the defendant’s counsel Ms Macakati, the defendant
is entitled to have the
matter
to
be still decided on the pleadings despite the terms of the agreement
concluded in terms of rule
37.
[56]
I disagree, a deviation from the provisions of rule 37 is
plainly
bad, it would
also
defeat
the whole purpose of the provisions of rule 37 which are meant to
facilitate and expedite the handling of a trial by eliminating
any
preliminary issues that may delay the trial.
[57]
The are submissions made by the defendant on this aspect need to be
addressed. In the heads of
argument,
[8]
the following is stated:
“
9.
In addition, the Honourable Justice Daniso enquired on the second day
of the trial whether the issue
of the shooting and or shooting
incident by the members of the police occurred is an issue in
dispute. The Defendant responded
in the affirmative and although this
aspect was not formulated in the Rule 37 conference minutes, it is an
aspect in dispute on
the pleadings.
10. It is
so that this issue in dispute ought to have also found its way into
the pre-trial minute, whose primary purpose
is to narrow the issues
as formulated in the pleadings. However, this was an omission and the
court is nonetheless implored to
take into consideration as this is
an important aspect for the Defendant’s case and in light of
the defendant’s evidence.
11.
The court was referred to paragraph 4.1. read together with paragraph
5.1 of the Defendants’ plea.
12.
That this aspect did not find its way into the pre-trial minutes is
by no means or form a concession that
the Defendant accepted that its
employees are responsible for the plaintiff’s injury…”
[58]
The defendant’s contentions herein are based on
a
gross distortion of the factual events which
took place in court and at the pre-trial hearing. Counsel for the
defendant has deliberately
avoided to state that the court’s
enquiry on whether the issue relating to the plaintiff’s
shooting was in dispute
was a result of the cross-examination of the
plaintiff in terms of which the veracity of the plaintiff’s
evidence that she
was shot by the police was challenged, despite the
fact that the defendant had conceded this aspect at the pre-trial
conference.
[59]
It is equally misleading to state that the disputed issue “
did
not find its way into the pre-trial minute
.” In paragraph
14 of the minutes of the pre-trial it is distinctly recorded that:
“
14.
ISSUES TO BE DETERMINED BY THE TRIAL COURT
The issues in dispute
are the following:
14.1
…
14.2
Whether the defendant’s action was lawful
14.3
Whether the defendant is liable for damages
14.4
Whether Plaintiff suffered any damages, and the nature and extent of
such damages.”
[60]
Having regard to the facts that that I have alluded to above, I
conclude that the evidence tendered
by the defendant does not accord
with the probabilities and it is merely a fabrication solely invented
to suit the circumstances
of the case. I cannot rely on such
evidence, the defendant’s version is accordingly rejected as
false.
[61]
For these reasons above, I am inclined to decide the disputed issues
in favour of the plaintiff.
I conclude that the plaintiff has proven
on a balance of probabilities that she was shot by the police with
the result that she
sustained an eye injury.
[62]
It is tested law that an
infringement
of bodily integrity is
prima
facie
unlawful.
The onus rests on the defendant to prove that the plaintiff’s
shooting was justified.
[9]
[63]
On the available facts, the defendant’s assertion that the
police’s actions were
justified simply on the basis that they
were aimed at protecting life and property from the
riotous
group which was stoning the police is untenable because on the
accepted evidence, the plaintiff was not part of the riotous
group.
[64]
That aside, the
reasonable
person in the position of the police would have foreseen that by
chasing and firing at a fleeing group of protesters
in a residential
area for that matter, there was a reasonable possibility of injuring
the plaintiff. The police should have taken
steps to guard against
that occurrence. They failed to do so and, if they had taken the
measures to avoid injuring the plaintiff
namely, by complying with
their
protocol and also the general rule which
prohibits the police from shooting a person in the head let alone
when the person is running
away the injury sustained by the plaintiff
could have been avoided.
[65]
I am not persuaded that the defendant has discharged the onus of
proving that the police actions
were justified. I find that their
conduct was wrongful and unlawful consequently, the defendant
is
vicariously liable for the injuries sustained by the plaintiff.
[66]
In the result I make the following order:
1.
Judgment is granted in favour of the
plaintiff on the merits with costs.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff: Adv. M.S. Mazibuko
Instructed
by: Mokhomo Attorneys
BLOEMFONTEIN
Counsel
on behalf of the defendants: Adv. I. Macakati
Instructed
by: Office of the State attorney
BLOEMFONTEIN
[1]
Paras 4 to 10 of the plaintiff’s particulars of claim.
[2]
Exhibit “A5” is a copy of the J88 medical report.
[3]
Exhibit “A26.”
[4]
Exhibit “A242”.
[5]
1984 (4) SA 437
at 440 D – G.
[6]
2003 (1) SA 11
at 14 1 – 15E at [5].
[7]
Of the Uniform Rules.
[8]
Page 7 at paras 9 to 12.
[9]
Benson
& Simpson v Robinson
1917
WLD 126
.