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Dlamini v Configen Close Corporations t/a Zero Tolerance Security (5711/2019) [2023] ZAFSHC 467 (30 November 2023)

80 Reportability
Delict
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Brief Summary

Delict — Unlawful assault — Gunshot injury — Plaintiff claiming damages for gunshot wound inflicted by security official employed by defendant — Plaintiff's evidence based on circumstantial evidence with no direct proof linking defendant's employee to the shooting — Court finds insufficient evidence to establish that an employee of the defendant shot the plaintiff or that the security officers were armed — Plaintiff's claim dismissed due to lack of credible evidence supporting his allegations.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned a delictual action for damages arising from a shooting incident in which the plaintiff alleged that he sustained a gunshot wound to his right upper arm, with consequential psychological shock and trauma. The plaintiff sued the defendant, a private security entity trading as Zero Tolerance Security, on the basis that a security officer in the defendant’s employ unlawfully shot him at the University of the Free State’s QwaQwa campus during student unrest.


The proceedings came before the Free State Division of the High Court, Bloemfontein, for adjudication on the merits only, and not on quantum. At the commencement of trial, the court made an order separating certain issues for determination under Rule 33(4) of the Uniform Rules of Court, specifically the issues reflected in paragraphs 1 to 6 of the plaintiff’s particulars of claim and the corresponding portions of the plea. The remaining issues were postponed for later adjudication.


Although the defendant had delivered a plea, the defendant’s attorneys had withdrawn prior to trial. The notice of set down was served on the defendant, but the defendant failed to appear. The trial therefore proceeded in the defendant’s absence, with the plaintiff presenting evidence from two witnesses.


The general subject-matter of the dispute was whether, on the evidence (largely circumstantial), the plaintiff had proved that an employee of the defendant shot him, and if so, whether the shooting was unlawful. In the event, the court determined the matter on the preliminary question of whether the plaintiff had proved causation and attribution to the defendant’s employee(s), rather than reaching the issue of unlawfulness.


2. Material Facts


The plaintiff testified that in October 2017 he was a student at the University of the Free State’s QwaQwa campus. On the night of 23 October 2017, he and a fellow student, Mr Mpho Radebe, studied at the library until around midnight and then began walking back to their residence.


It was common cause on the plaintiff’s version that there were ongoing “fees must fall” protests on campus, but both he and Radebe maintained that they were not participants. While walking, they observed a group of protesting students and security personnel whom the plaintiff believed were deployed to address the protests.


A critical factual feature, emphasised in the judgment, was that the plaintiff asserted he recognised the security personnel as the defendant’s employees due to their camouflage uniforms, but he could not identify any specific insignia or identification marks linking those individuals to the defendant. The court treated this as significant because attribution to the defendant was a central element of the claim.


The plaintiff’s evidence regarding the shooting itself was that he heard gunshots, chaos ensued, and people started running. He saw Radebe fall. While attempting to assist Radebe, the plaintiff felt a jerking sensation in his right arm. He ran to a nearby female residence to seek help and only then realised that something was lodged in his arm and that he had been shot with live ammunition.


The plaintiff further testified that security personnel blocked the campus’s main gate and that between approximately 01:00 and 02:00 he and Radebe were transported to the entrance gate, where members of the South African Police Service (SAPS) were present and an ambulance was called.


Radebe’s evidence corroborated the plaintiff’s account in the respects the court considered material: he testified that he also only heard gunshots and then fell; he later realised at the nearby female residence that he had been shot, experiencing difficulty breathing. He further stated that, while in the residence, he could hear security officers shooting at protesters. The court nonetheless treated the evidence of both witnesses as lacking direct proof of who fired the shot that injured the plaintiff.


The plaintiff sought to rely (in argument) on documents discovered under Rule 35(9), including references to a firearms register, warning statements, and a ballistic report. However, the court held that no admissible evidence was led to establish the truth of the contents of those documents, and they were not admitted by agreement nor introduced under a recognised hearsay exception.


3. Legal Issues


The central legal question was whether the plaintiff discharged the onus of proof, on a balance of probabilities, that he had been shot by an employee of the defendant acting in the course and scope of employment.


This determination was primarily an exercise in the application of legal principles to facts, particularly the evaluation of circumstantial evidence and inferential reasoning in civil proceedings. The court was required to determine whether the proven facts supported a reasonable inference that the defendant’s employee fired the shot, as opposed to leaving the matter in the realm of speculation.


A further legal issue concerned the admissibility and evidentiary status of documents discovered under the Uniform Rules of Court. Specifically, the court had to decide whether documents produced following Rule 35(9) discovery could be treated as evidence of the truth of their contents, and whether they could be used to establish identification of the shooter and a ballistic match without proper evidentiary foundation.


Although unlawfulness (and justification such as self-defence) was identified as a separated issue in the formulation of issues, the court’s resolution of the case turned on the failure to prove the shooter’s identity and employment link, with the result that unlawfulness did not become determinative on the evidence accepted as admissible.


4. Court’s Reasoning


The court approached the matter on the basis that the plaintiff bore the onus to prove that the injury was caused by a gunshot fired by an employee of the defendant. It found that there was no direct evidence that any particular person employed by the defendant pulled the trigger, and that the plaintiff’s case therefore depended on circumstantial evidence.


In addressing circumstantial proof, the court applied the approach articulated in Macleod v Rens 1997 (3) SA 1039 (E), namely that a civil court must identify the proven facts and then assess where the balance of probabilities lies when reasoning inferentially from those facts. The court also relied on De Wett and Another v President Versekeringsmaatskappy Bpk 1978 (3) SA 495 (C) (with reference to Caswell v Powell Duffryn Associated Collieries Ltd (1939) 3 All ER 722) to emphasise the distinction between permissible inference and impermissible conjecture or speculation, holding that an inference requires objective proved facts from which the sought conclusion can reasonably be drawn.


Applying these principles, the court highlighted two evidentiary gaps that prevented a probability-based inference in the plaintiff’s favour. First, it found there was no credible evidence that the security personnel observed in camouflage were in fact employees of the defendant, given the absence of identifying marks and the inability of the witnesses to link those individuals to the defendant beyond the general appearance of their clothing. Second, the court noted that neither the plaintiff nor Radebe testified that the security officers were armed with firearms, which meant the court could not infer that one of them fired the shot that injured the plaintiff.


The court also considered the evidential neutrality created by the absence of proof about who else may have had firearms at the scene. It held that there was no evidence that protesting students were armed, but equally no evidence they were not, and similarly no evidence that security officers were armed or unarmed. On that footing, the court considered that the inferential chain required to attribute the shooting to the defendant’s employee was not established by proved facts.


A substantial portion of the reasoning dealt with the plaintiff’s attempt (through counsel’s submissions) to rely on the contents of discovered documents (including a firearms register, warning statements, and ballistic material) to establish that a particular firearm issued to a particular person employed by the defendant was discharged and matched to the bullet removed from the plaintiff. The court rejected this reliance on the basis of admissibility. It applied Visser v 1 Life Direct Insurance Ltd 2015 (3) SA 69 (SCA) for the proposition that production of documents under Rule 35 procedures does not make the contents evidence of their truth; unless admitted as true, the contents remain hearsay and are inadmissible unless brought within an exception. The court further noted that the plaintiff did not apply for admission under section 3 of the Law of Evidence Amendment Act 45 of 1998, and accordingly the court could not have regard to those contents.


The court considered the defendant’s plea, noting that the defendant denied the incident and denied that an employee shot the plaintiff. It also considered the plea-over allegations referring to broader unrest, presence of multiple security and policing entities (including SAPS and other security companies), and shots allegedly fired in self-defence. The court concluded that these pleaded allegations did not advance the plaintiff’s case, and in any event did not clearly relate to the specific incident described by the plaintiff and Radebe. In the final analysis, the court held that the probabilities did not favour the plaintiff on the crucial question of attribution of the shooting to the defendant’s employee(s).


5. Outcome and Relief


The court held that the plaintiff failed to prove, on a balance of probabilities, that he was shot by an employee of the defendant. As a result, the court granted absolution from the instance.


The judgment, as delivered, did not record a separate or express order as to costs in the extract provided, beyond the order of absolution.


Cases Cited


Macleod v Rens 1997 (3) SA 1039 (E).


De Wett and Another v President Versekeringsmaatskappy Bpk 1978 (3) SA 495 (C).


Caswell v Powell Duffryn Associated Collieries Ltd (1939) 3 All ER 722.


Visser v 1 Life Direct Insurance Ltd 2015 (3) SA 69 (SCA).


Selero (Pty) Ltd and Another v Chauvier and Another 1982 (2) SA 208 (T).


Klaassen v Benjamin 1941 TPD 80.


Legislation Cited


Law of Evidence Amendment Act 45 of 1998, section 3.


Rules of Court Cited


Uniform Rules of Court, Rule 33(4).


Uniform Rules of Court, Rule 35(9).


Uniform Rules of Court, Rule 35(10).


Held


The court held that the plaintiff bore the onus of proving that he was shot by an employee of the defendant and that, on the admissible evidence presented, the plaintiff failed to establish that the security personnel at the scene were employees of the defendant or that any such personnel were armed so as to support an inference that a defendant’s employee fired the shot. The court further held that documents discovered under Rule 35 procedures did not constitute proof of the truth of their contents and were inadmissible hearsay absent admission or a successful application under section 3 of the Law of Evidence Amendment Act 45 of 1998. The claim on the merits therefore failed, and absolution from the instance was granted.


LEGAL PRINCIPLES


Inferential reasoning in civil trials requires that the court identify the proved objective facts and then determine whether the sought conclusion follows by reasonable inference on a balance of probabilities; where objective facts are insufficient, the reasoning process collapses into speculation, which cannot sustain a finding for the party bearing the onus.


In claims dependent on circumstantial evidence, the party bearing the onus must produce sufficient proved facts to support the inference sought, and the court must evaluate probabilities against the totality of admissible evidence rather than assumptions about what might have occurred.


Documents discovered and produced under Uniform Rule 35 are not, merely by production, evidence that the contents are true. Unless the truth of the contents is admitted, those contents remain hearsay and are inadmissible unless brought within a recognised exception, including (where applicable and properly invoked) admission under section 3 of the Law of Evidence Amendment Act 45 of 1998.

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[2023] ZAFSHC 467
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Dlamini v Configen Close Corporations t/a Zero Tolerance Security (5711/2019) [2023] ZAFSHC 467 (30 November 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
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:
5711/2019
In
the matter between
:
XOLANI
THOKOZANE DLAMINI
Plaintiff
and
CONFIGEN
CLOSE CORPORATIONS t/a
ZERO
TOLERANCE SECURITY
Defendant
Registration
number: 2010/160277/23
CORAM:
PJJ ZIETSMAN AJ
HEARD
ON:
14 NOVEMBER 2023
DELIVERED
ON:
30
NOVEMBER 2023
Introduction
[1]
The Plaintiff instituted action against
the defendant for damages
suffered by him as a result of a gunshot wound to his right upper arm
and subsequent psychological shock
and trauma.
[2]
The Plaintiff’s pleaded case
is that on 23 October 2017 a
security official in the employ of the defendant unlawfully and
wrongfully assaulted him on the QuaQua
campus of the University of
the Free State, by shooting him in his right upper arm.
The
issues
[3]
Although the matter came before me
only in respect of the merits of
the plaintiff’s claim, it was not clear from the court file
which of the allegations in
the particulars of claim ought to be
adjudicated separately.
[4]
Accordingly, on the first day of the
trial I made an order that the
issues outlined in paragraphs 1 to 6 of the plaintiff’s
particulars of claim, together with
the corresponding allegations in
the defendant’s plea be separated out in terms of Rule 33(4) of
the Uniform Rules of Court
and that the remainder of the issues
stands over for later adjudication.
[5]
It is further apposite to point out
that prior to the matter having
been set down, the Defendant’s attorneys withdrew as attorney
of record however the notice
of set down was duly served on the
defendant and notwithstanding the defendant was in default of
appearance at the trial.
The matter thus proceeded in the
Defendant’s absence.
[6]
The issues for determination are thus:
6.1
The
locus standi
of the plaintiff;
6.2
The incident;
6.3
Whether an employee of the defendant shot the plaintiff;
6.4
If it is found that the defendant shot the plaintiff whether such
action was lawful.
The
evidence
[7]
Two witnesses, to wit the Plaintiff
– Mr Xolani Dlamini –
and Mr Mpho Radebe testified during the trial.
[8]
It is the Plaintiff’s testimony
that during October 2017 he was
a BA Education student of the University of the Free State at its Qwa
Qwa campus.
[9]
During the evening of 23 October 2017
the Plaintiff and Radebe
studied at the library until approximately 24:00, at which time they
decided to make their way back to
their residence.
[10]
They were aware of the “fees must fall” student
protests
on campus but did not participate in same.
[11]
As they were walking back to their residence the Plaintiff
saw a
group of protesting students and security personnel of the Defendant,
who, according to him, was deployed by the University
to deal with
the protests on campus.
[12]
According to the Plaintiff, he recognised the Defendants’

employees from the camouflage uniforms that they were wearing, but
despite the Court’s questions is this regard he could
not point
out or identify any specific identification marks on the uniforms
which would link the security officers with employment
by the
Defendant.
[13]
As the Plaintiff was walking towards his residence he all
of a sudden
heard gunshots and the next moment is was chaos. People started
running and that was when the Plaintiff realised that
Radebe had
fallen to the ground.
[14]
The Plaintiff tried to help Radebe, but he felt a jerking
sensation
in his right arm.
[15]
Other persons attended to Radebe and the Plaintiff decided
to run to
the nearby female residence to seek help. It was there that he
realised that something was stuck in his arm, that he
had been shot
with live ammunition and that Radebe was bleeding on the right side
of his body.
[16]
The Plaintiff testified further that the security company
blocked the
main entrance and exit gate to the campus. At around 01:00 to 02:00
the plaintiff and Radebe was transported to the
entrance gate where
members of South African Police Services (SAPS), who was also present
on the scene, called an ambulance to
take them to hospital.
[17]
The Plaintiff’s evidence is that he made an assault
charge with
the SAPS, but he was later informed that the prosecuting authorities
refused to prosecute the matter.
[18]
The Plaintiff also testified that a bullet was removed from
his arm
and he was told that it was sent for testing.
[19]
Mr Radebe’s evidence corroborated the evidence of the
Plaintiff
in all material aspects.
[20]
He, too, testified on more than one occasion that he only
heard
gun shots whereafter he fell to the ground.
[21]
Thereafter, he was taken to the nearby female residence –

residence B – and it was there where he realised that he had
been shot with live ammunition because he struggled to breath.
He
further testified that while he was in the female residence he could
hear the security officers shooting at the protesters.
[22]
Like the plaintiff, Radebe also laid an assault charge and
he later
received a letter from the SAPS that informed him that the case had
been “nullified”. However, the said letter
was not
admitted into evidence.
Discussion
[23]
The onus rest on the Plaintiff to prove that he was shot by
an
employee of the Defendant.
[24]
However, there is no direct evidence that an employee of the

Defendant pulled the trigger and shot the Plaintiff.
[25]
The high water mark of the Plaintiff’s evidence is that
he
“heard gunshots” and realised at the female residence
that he had been shot with live ammunition.
[26]
Radebe also only heard gunshots and later realised that he
was shot
with live ammunition.
[27]
Thus, the Plaintiff’s case has to be decided on circumstantial

evidence.
[28]
But the case is not without difficulty.
[29]
First, there is no credible evidence that the persons dressed
in
camouflage uniform were employed by the Defendant.
[30]
Second, neither the Plaintiff nor Radebe testified that the
security
officers were armed.
[31]
It raises the question whether, on the bases of inferential

reasoning, a finding in favour of the Plaintiff can be made.
[32]
Macleod
v Rens
[1]
was an
action for damages in consequence of bodily injuries sustained by a
plaintiff in an accident involving a motor car driven by defendant

where there was no direct evidence as to the accident. The issue of
the defendant’s negligence had to be decided on circumstantial

evidence.
Erasmus
J held, at p 1047F that:
“
[Inferential
reasoning] involves consideration of the sufficiency of the evidence
seen in the light of the rules of law and logic
relating to indirect
evidential material.
In
all civil trials
'(t)he
enquiry then is where, on all the evidence, the balance
of probability lies. If it is substantially in favour of

the party bearing the
onus
on the pleadings he
succeeds; if not, he fails.'
(
Dictum
in
Klaassen
v Benjamin
1941 TPD 80
at 87, referred to in
Arthur
v Bezuidenhout (supra
at 574H).)”
[33]
Erasmus J went on to explain that the court must first identify
the
proven facts and although the relevant evidence might encompass not
only concrete or physical facts, but also such other relevant
facts
which are notorious and not merely the result of personal
observation. The facts so found then forms the basis for the
consideration
of the probabilities.
[34]
In
De
Wett and Another v President Versekeringsmaatskappy Bpk
[2]
the court distinguish between presumptions and inferences thus:
“
In
regard to the submission of plaintiff's counsel, the remarks of Lord
WRIGHT in
Caswell v Powell
Duffryn Associated Collieries Ltd
(1939)
3 All ER 722
at 733 appear to me to be apposite:
"Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective
facts from which to
infer the other facts which it is sought to establish. In some cases
the other facts can be inferred with as
much practical certainty as
if they had been actually observed. In other cases the inference does
not go beyond reasonable probability.
But, if there are no positive
proved facts from which the inference can be made, the method of
inference fails and what is left
is mere speculation or conjecture."
[35]
In order to find for the Plaintiff, I have to come to a finding
that,
on a balance of probability, the security officers on the scene were
in the employ of the Defendant and a shot fired by one
of them
injured the Plaintiff.
[36]
I have difficulty to come to such a finding.
[37]
There is no evidence to infer that the security officers
on the
scene were in the employ of the Defendant. The fact that they wore
camouflage uniform without any identification marks to
identify the
Defendant does not tilt the probabilities in the Plaintiff’s
favour.
[38]
But even if I accept that the security officers were in the

Defendant’s employ it still does not tilt the probabilities in
the Plaintiff’s favour because there is no evidence
that the
security officers were armed with firearms in order to draw the
inference that one of them fired the bullet that injured
the
Plaintiff.
[39]
And just like there is no evidence that any of the security
officers
were armed there is likewise no evidence that any of the protesting
students were armed. The confers is also true. There
is no evidence
that the security officers and/or any of the protesting students were
not armed.
[40]
Mr Cassim who appeared for the Plaintiff tried to persuade
me, in his
heads of argument, to have regard to the firearms register, the
warning statements and the ballistic report included
in the documents
discovered by the Plaintiff.  He contended that the documents
show that fire arm with serial number T 63[…]
was issued to Mr
MM Nhlapo who was in the employ of the Defendant and who admitted in
his warning statement that he had discharged
the firearm. The
documents further shows, so it was contended, that the said firearm
was ballistically matched to the bullet removed
from the Plaintiff’s
arm.
[41]
The Plaintiff discovered the aforementioned documents in terms
of
Uniform Rule 35(9) but did not tender any evidence as to the
truthfulness of the contents thereof.
[42]
Willis JA
writing for the Supreme Court of Appeal in
Visser
v 1 Life Direct Insurance Ltd
[3]
held at par [39] that:
“
It
is trite that the production in evidence of documents in terms of
rule 35(10) of the Uniform Rules of Court, after these have
been
admitted in terms of rule 35(9), as happened in this case, does not
extend to the truthfulness of the contents thereof. The
documents are
not evidence that the content thereof is true. The contents,
unless admitted as being true, remain hearsay evidence
and therefore
inadmissible unless they qualify for admission under one of the
recognised exceptions to the hearsay rule.”
(footnotes
omitted)
[43]
The
contents of the said documents has not been admitted and are thus
inadmissible on the basis of hearsay
[4]
.
Nor did the Plaintiff apply to have it admitted in terms of section 3
of the Law of Evidence Amendment Act 45 of 1998.
[44]
I therefore cannot take any cognisance of the contents of
the said
documents.
[45]
I also considered the Defendant’s plea.
[46]
As a starting point it must be emphasised that the Defendant
denied
the incident, and in particular that one of its employees shot the
Plaintiff. Thus, to my mind, the plea does not take the
matter any
further.
[47]
However, the Defendant also pleaded over that the protestors
has
caused severe damage to the campus in the proceeding days, hence the
campus was locked down, the uprising escalated and the
protesters
wanted to forcefully enter the campus and unrestrainedly attacked the
security and policing authorities to gain access.
A number of
security and police were present at the venue, amongst others the SA
Police Service, SA Defence Force and other security
companies, a
number of shots were fired out of self-defence by the said security
and policing authorities.
[48]
The Defendant’s plea over does not tilt the probabilities
in
favour of the Plaintiff because it clearly refers to shots that were
fired by the SAPS and “other security companies”
at a
time when the protesters wanted to forcefully enter the campus and
unrestrainedly attacked the security and policing authorities.
[49]
The aforementioned plea clearly does not refer to the incident
as
testified by the Plaintiff and Radebe.
Order
[50]
I therefore find that the Plaintiff has not proved its case
on a
balance of probabilities and the order I make is one of absolution
from the instance.
PJJ
ZIETSMAN AJ
Counsel
for the Plaintiff:
Adv A
Cassiem
Instructed
by:
Gildenhuys
Malatji Inc
c/o
Bezuidenthout Inc
BLOEMFONTEIN
[1]
1997
(3) SA 1039 (E).
[2]
1978
(3) SA 495
(C) at 500 F.
[3]
2015
(3) SA 69 (SCA).
[4]
See
also
Selero
(Pty) Ltd and Another v Chauvier and Another
1982 (2) SA 208
(T) at 215 F - 216 H.

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