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2023
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[2023] ZAFSHC 448
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Maleke v Minister of Police (3989/2021) [2023] ZAFSHC 448 (16 November 2023)
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
number: 3989/2021
In
the matter between:
LIZE
MALEKE
Plaintiff
and
MINISTER
OF POLICE
Defendant
CORAM:
LOUBSER, J
HEARD
ON:
3 & 4 OCTOBER 2023
JUDGEMENT
BY:
LOUBSER,
J
DELIVERED
ON:
16
NOVEMBER 2023
[1]
The plaintiff in this matter issued summons against the defendant for
the payment of R400 000.00
damages following a shooting incident
on 13 March 2021 at Bethlehem. It is alleged in the particulars of
claim that on that date,
members of the South African Police Service
wrongfully and unlawfully assaulted the plaintiff by spraying pepper
spray in his eyes
and shooting him in his left leg.
[2]
In his plea, the defendant admitted that the
plaintiff was shot in the leg by a police constable, but
denied that
the shooting was wrongful and unlawful. It was pleaded that the
policeman shot the plaintiff in self-defence when the
plaintiff
attacked him with a knife and a stick whilst he was on duty.
[3]
The ensuing trial was heard by this court. Two witnesses were called
in support of the plaintiff’s
case, and the defendant presented
the evidence of three witnesses. The plaintiff himself was the first
witness. He testified that
he was 34 years old and that he does piece
jobs for a living, like washing cars. Earlier on the day in question,
he came across
a police informer by the name of Themba. Themba then
pointed him with a firearm and said they were looking for him. He,
the plaintiff,
then ran away to his grandmother’s place. While
he was with his grandmother, he received a call from his wife, who
was at
their home at the time. She told the plaintiff that the police
were looking for him, he testified.
[4]
Upon receiving this news, the plaintiff set off to the house of his
friend Fusi. There he took
a stick, and he and Fusi then proceeded in
the direction of his house where the police were looking for him. He
took the stick
because it was already dark and there was
loadshedding. On the way to his house, the plaintiff and Fusi first
went to a shebeen
where the plaintiff bought a six pack Corona beer.
They proceeded further on their journey to the house of the
plaintiff, he told
the court.
[5]
While they were still walking, a white police vehicle suddenly
appeared around a corner with the
lights on in their direction, The
vehicle then stopped and the same police informer, Themba, alighted
from the vehicle and sprayed
the plaintiff with pepper spray in his
eyes. At the same time, a policeman by the name of Mofokeng alighted
from the right side
of the vehicle and immediately started to fire
shots at the plaintiff. The first two shots missed him, but the third
hit him in
his left upper leg, the plaintiff testified. When the
shots were fired, he was running backwards away from the policeman
because
he realized that they wanted to kill him, he told the court.
He was only 3 to 4 metres away from Mofokeng when he was hit by the
bullet.
[6]
The plaintiff further testified that when he was hit by the bullet,
he fell with his forehead
on the ground. He could not move and one of
Mofokeng or Themba pushed him with a leg on the head to see if he was
still alive.
The two of them then got into the vehicle and left. Soon
thereafter an ambulance arrived and took him to the hospital. When
the
shooting happened, Fusi was a distance behind him, the plaintiff
said. When he was hit by the bullet, Fusi ran away.
[7]
In cross examination the following transpired: The stick or kierie
that the plaintiff took from
Fusi’s house, was actually his,
and it was about a metre long. He also took a knife at Fusi’s
house, which was a fixed
blade knife about 20cm long. He took the
knife for his protection. He carried it in a holder or a pouch on his
waist. He carried
the kierie in his right hand. His left arm was
covered by a blanket. When he was shot, he did not have the knife in
his hand. In
his left hand he was holding a beer. He was not
attacking Mofokeng with the knife. The six pack beer fell on the
ground when he
was shot. The plaintiff further denied that he would
not have fallen on his face while running backwards when he was shot.
[8]
The plaintiff further confirmed that he was
arrested this year for the theft of stock. In 2021 the
police wanted
him for stock theft. When the incident happened, the police were
looking for him in connection with stock theft,
although he did not
know it at the time. During the incident, he did not take the knife
out of its holder or pouch.
[9]
Responding to questions from the court, the
plaintiff said that he was not under the influence of liquor
when the
incident happened. The holder or pouch is of the kind that can be
clipped close. It was clipped close when he left Fusi’s
house.
If the knife was found on the ground where the incident happened, he
does not know how it got there. It surprises him, he
said.
[10]
The plaintiff then called Fusi Mhlambi to testify for him. He told
the court that on the day in question,
the plaintiff arrived at his
place saying that his wife called him when he was at his grandmother,
informing that the police were
looking for him. He then gave the
plaintiff’s kierie and blanket to him, which items he had left
there on an earlier occasion.
The two of them then left for the
plaintiff’s house. It was about 7.30 – 8 pm. They first
walked to a tavern, where
plaintiff bought a six pack Corona beer.
They then continued walking to the plaintiff’s house, but on
the way a vehicle,
white in colour, came from the front. At that
stage plaintiff was walking in front, because he, the witness, had
paused to urinate.
A person alighted from the vehicle saying “here
are they”. He sprayed the plaintiff with something like pepper
spray
in the eyes.
[11]
According to the witness, someone then alighted from the driver’s
side, holding a firearm. This person
shot in the direction of the
plaintiff, and the witness saw dust on the ground. The witness then
ran away. When the vehicle arrived,
the plaintiff had a blanket, the
kierie and the Coronas in his possession. He did not see the
plaintiff attacking the driver of
the vehicle or his passenger. When
the plaintiff was sprayed, he stumbled backwards and then he was
shot.
[12]
In cross-examination the witness testified that he
heard only one shot. Responding to further questions,
he confirmed
what he said in his evidence in chief. The plaintiff’s case was
thereafter closed.
[13]
The first witness for the defendant was Sergeant Phatshoane Letaoana,
a crime scene technician, photographer,
forensic field worker and
fingerprint expert with 13 years experience at the SAPS criminal
record centre, Bethlehem. He visited
the scene of the shooting at
approximately 11 pm on the same evening. On the scene he collected 3
cartridge cases, and at the police
station the firearm concerned. He
also found a knife on the ground and a wooden stick, which items he
did not collect because the
Independent Police Investigative
Directorate (IPID) was dealing with the matter. He took photographs
of the scene and handed in
a photo album with a key he had compiled.
The points he photographed were pointed out to him.
[14]
The following appears from the photographs and the key thereto: The
point where the plaintiff allegedly drew
the knife, is a short
distance from where an empty cartridge was found. This is the point
where the first shot was allegedly fired.
On the way to the place
where the plaintiff fell to the ground after being shot, a second
empty cartridge was found. This is allegedly
the point where the
second shot were fired. This point is very near to the point where
the plaintiff fell. The point where the
plaintiff fell, is in close
proximity to the points where the kierie and the knife were found.
Also in close proximity is the point
where the third cartridge was
found. The distance from the point where the plaintiff allegedly
first drew the knife, is 42 metres
away from where the abovementioned
points in close proximity are indicated. The distance from where the
third shot was fired to
the point where the plaintiff fell, is
indicated as 4.4 metres.
[15]
The cross-examination on this witness did not take the matter any
further.
[16]
The next witness who testified for the defendant, was constable
Watson Mofokeng. He is based at the SAPS
stock theft unit at
Fouriesburg. On about 11 March he and an officer went to look for a
man by the name of Lucky, who was implicated
in an incident of stock
theft. It later transpired that Lucky is the plaintiff in the present
matter. They did not find him at
his shack, only his girlfriend
Maditaba. The witness and a warrant officer went back to the shack on
two occasions the following
day, without any success. On 13 March
2021 the witness, accompanied by an informer by the name of Themba
Maropale, came across
Lucky about 7.30 pm in a street. Lucky was
pointed out to him by Themba who was with him in the vehicle. There
was loadshedding
at the time. The witness testified that he then
immediately stopped the vehicle, keeping the headlights on. He and
Themba got out
of the vehicle. Lucky then headed in the direction of
Themba, screaming “here is the dog who sells us to the police,
I was
looking for him”. Lucky was holding a knife in his right
hand and a stick in his left hand. Themba took out pepper spray and
sprayed Lucky with it.
[17]
After Lucky was sprayed, he kept on approaching Themba, and he chased
Themba, who had run around the vehicle
to where the witness was
standing. Lucky then charged at the witness, saying that the witness
must shoot him, because he is going
to stab him. The witness
testified that he then retreated away from the vehicle, telling Lucky
to stop what he wanted to do. Lucky,
however, still charged at the
witness, who then fired a shot in the air. This warning shot did not
deter Lucky, who kept on coming.
The witness then turned around and
started running away, with Lucky chasing after him. After running a
distance, the witness looked
over his shoulder and he saw that Lucky
was now close to him. The witness then fired a second shot in the
air, and ordered Lucky
to stand still, but Lucky kept on coming. The
witness then ran again, but found that Lucky was now too close to
him. It is then
that he turned around and fired a shot in the
direction of Lucky, hitting him in the thigh. The witness then called
his commander
and the police station, saying that he had shot
somebody, and they must summon an ambulance.
[18]
Returning to the spraying incident, constable
Mofokeng told the court that Themba did not spray the plaintiff
directly in his eyes. He only sprayed in the direction of the
plaintiff and below his chin to the rest of his lower body. He added
that the plaintiff did not make a case against him after the
incident. Only the police did, but he was not prosecuted.
[19]
In cross-examination the witness was referred to the preamble of a
statement he afterwards made to the police,
which stated “stabbed
with knife”. The witness confirmed that he saw that inscription
at a later stage, and he requested
constable Nhlapo, who took down
his statement, to correct those words because he was not stabbed.
Apparently she did not correct
it. The witness testified that he also
made another statement, which was handed in as exhibit “B”.
In this statement
he merely denied that he ever withdrew the case
against the plaintiff after indicating that he had forgiven the
plaintiff. He signed
the withdrawal statement without knowing what he
was signing.
[20]
The witness further denied that his statement was correct where he
said that the plaintiff only pulled out
his knife after he had chased
Themba around the vehicle. He already had the knife in his hand
before he was sprayed with the pepper
spray.
[21]
The third and last witness called by the defendant was Themba
Mngomezulu. He testified that he was an informer
of the SAPS and
stationed at Bethlehem. On the evening of 13 March 2021 he was with
constable Mofokeng in a vehicle, because Mofokeng
wanted him to
identify the suspect Lucky to him. They came across Lucky in a
street, and he said to Mofokeng this is Lucky. They
stopped and both
alighted from the vehicle. Lucky approached them and said “yes,
I have been looking for you police dogs”,
and he further said
“you, Themba, you continuously report us to the police”.
When Lucky spoke those words, he was approaching
them and pulled out
a knife. He came to the witness first to fight him. The witness took
out pepper spray and sprayed in the direction
of Lucky, who was some
3 – 4 metres away, he testified.
[22]
The witness then ran around the vehicle, and Lucky
changed direction and chased after Mofokeng, who then
shot in the
air. Mofokeng then ran for a distance with Lucky in pursuit. Mofokeng
then fired a second shot in the air. When Mofokeng
fired the third
shot, they were already far away and it was dark. The witness heard
something like a cry, and went to look what
was happening. He found
Lucky bleeding on the ground and holding his leg.
[23]
Themba concluded his evidence in chief by saying that it is not true
that he had threatened Lucky earlier
with a firearm. He also
testified that he did not alight and just spray Lucky. Lucky was not
backtracking when he was shot. He
was also armed with a kierie apart
from the knife.
[24]
In cross-examination the witness confirmed that the plaintiff was not
shot close to the vehicle. It happened
a distance away in the dark.
He also confirmed that the plaintiff was accompanied by another
unknown person when they approached
the vehicle. He knows Fusi, and
that other person was not Fusi. He thought at the time that Lucky was
going to attack him, because
he had the kierie in his left hand and
the knife in his right hand. The six pack beers fell on the ground
when the plaintiff was
chasing Mofokeng.
[25]
Now, having regard to all the evidence presented in this case, it is
clear that the court is confronted with
two mutually destructive
versions. The version advanced by the plaintiff is that he was
assaulted by the two people in the vehicle,
while their version is
that they were attacked by the plaintiff and that they were acting in
self-defence. How a court will deal
with such a situation, was aptly
explained by Eksteen, AJP, as he then was, in the full bench decision
of
National
Employers’ General Insurance v Jagers
[1]
as follows:
[26]
“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, and where there are two
mutually destructive stories, he can only succeed
if he satisfies the
court on a preponderance of probabilities that his version is true
and correct and therefore acceptable, and
that the other version
advanced by the defendant is therefore false or mistaken and falls to
be rejected… 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.”
[27]
In the present case, it is not only the probabilities that play a
conclusive role, but the factual evidence
clearly shows where the
truth lies. Here I specifically refer to the evidence of Sergeant
Letaoama, the crime scene technician
who visited the scene on the
same night. His evidence and what he found on the scene was not
contested at all. He found an empty
cartridge a short distance from
the place where the plaintiff allegedly drew his knife. He found a
second cartridge a distance
away near the place where the plaintiff
fell to the ground. At the place where the plaintiff fell, he found
the third cartridge
in very close proximity to the place where he
found the knife and the kierie on the ground. The distance from where
the plaintiff
first drew the knife to the spot where the plaintiff
fell and where the cartridge, the kierie and the knife were found, is
indicated
as a distance of 42 metres.
[28]
If the plaintiff’s version reflected the truth, all three the
cartridges would have been at the same
place, namely the place where
Mofokeng and Themba alighted from their vehicle. To put it
differently, what Sergeant Letaoama found
on the scene, fits the
version of Mofokeng and Themba like a glove. It is clear to this
court, even beyond a reasonable doubt,
that Mofokeng and Themba were
attacked by the plaintiff, and that Mofokeng tried to get away from
the vehicle, firing a second
warning shot in the air in the process.
At the place where he eventually shot the plaintiff, the plaintiff
was in close proximity
and still armed with the kierie and the knife.
I have no hesitation in rejecting the plaintiff’s version as
false.
[29]
Even the probabilities of the matter favour the version of Mofokeng
and Themba. Firstly, it is highly improbable
that Mofokeng would have
fired three shots in succession at the plaintiff the moment he
alighted from the vehicle, without any
reason to do so. Secondly, I
find it highly improbable that the plaintiff would fall on his face
after being shot while he was
retreating at speed away from Mofokeng.
Thirdly, it is improbable that the plaintiff’s knife fell on
the ground while it
was in a pouch that was clipped close. The
probabilities are that the knife was in the plaintiff’s hand
when he was struck
by the bullet, as Mofokeng had testified.
[30]
The last question is whether it can be said that
Mofokeng exceeded the limits of self-defence when he fired
the shot
at the plaintiff. I think not. The knife that was found on the scene,
is a big knife and without any doubt a very dangerous
weapon. That
knife could easily have killed Mofokeng. Moreover, it was dark at the
time and the plaintiff kept on chasing Mofokeng
despite two warning
shots that were fired by Mofokeng in the process. Lastly, Mofokeng
fired at the lower body of the plaintiff,
and not the upper body,
where the shot could have caused fatal consequences.
[31]
In the premises, the plaintiff cannot succeed. The following order is
made:
1.
The plaintiff’s action is dismissed with costs.
P.
J. LOUBSER, J
For
the plaintiff:
Adv.
C. Zietsman
Instructed
by:
Loubser
van der Walt Inc., Pretoria
c/o
Jacobs Fourie Inc., Bloemfontein
For
the Defendant:
Adv.
S. F. Sibisi
Instructed
by:
The
State Attorney
Bloemfontein
/roosthuizen
[1]
1984
(4) SA 432
at 440 D-G