Dyibishe v Minister of Police (3050/2019) [2023] ZAECMKHC 108 (5 October 2023)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 108
|

|

Dyibishe v Minister of Police (3050/2019) [2023] ZAECMKHC 108 (5 October 2023)

FLYNOTES:
PERSONAL INJURY –
Police
shooting –
Regulation
of Gatherings Act
–
Shooting during ROGA operation – Defendant must establish
requirements justifying application of deadly
force –
Defendant would be vicariously responsible to account for all
gunshot injuries caused to persons during ROGA
operation –
ROGA introduces a unique situation of legal accountability in
crowd gathering management situations under
its provisions –
Unjustified use of force – Failed to meet onus to prove
justification for shooting – Liability
proven –
Regulation of Gatherings Act 205 of 1993.
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.
3050/2019
In
the matter between:
NOMSA
DYIBISHE
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
HARTLE
J
Introduction:
[1]
The plaintiff sued the defendant for
damages arising from an assault alleged to have been perpetrated
against her at Bathurst on
29 January 2019 by members of the South
African Police Service (“the police”), for whose conduct
she asserts the defendant
is vicariously liable.
[2]
She claims that the police harmed her
either intentionally or negligently by shooting at her with a
firearm(s) or discharging (a)
firearm(s) in her direction or in her
presence, striking both her legs with rubber and live ammunition
bullets/projectiles thereby
causing injury to her body and
consequently damage, which she seeks to recover in the action that
came before me on trial.
[3]
The shooting was alleged to have happened
inside a house situated at Erf 1035 in Memani Street, Bathurst, which
it is common cause
is the home of one of the plaintiff’s
witnesses, Ms. Bulelwa Zweni (“the Zweni homestead”).
[4]
The shooting alleged by the plaintiff
happened to coincide with protest action by the Bathurst community
carried on in close proximity
to the Zweni homestead which - latterly
conceded in an amended plea, culminated in the need for the dispatch
of the Public Order
Policing Unit of the defendant (“POPU”)
to the Nolukhanyo township in Bathurst on that day in order to crowd
manage
and restore public order.
The pleadings:
[5]
The defendant initially pleaded a bare
denial of all the allegations, admitting only the plaintiff's name
and that the issue of
the summons had been preceded by the delivery
of the formal statutory notice of intention to institute legal
proceedings.
[6]
However,
shortly before the trial commenced - by agreement between the parties
only on the separated issue of merits, the defendant
filed an amended
plea in which, apart from eschewing reliance on a special plea that
had been taken to the plaintiff’s particulars
of claim,
[1]
he further purported to amplify his hitherto bare denial as follows:
“
5.3
In amplification of the denial the defendant pleads as follows:
5.3.1
On 29 January 2019 there were service delivery related protest action
in the Bathurst, Bathurst Township
and surrounding area by the
Bathurst Community.
5.3.2
The Public Order Policing Unit (POPs) of the South African Police
Service (SAPS) attended to crowd management
duties thereat.
5.3.3
The Commanding Officers on duty at all material times were Warrant
Officer Bishops and Captain Mhlauli.
In particular Captain
Ntloko was the Commanding officer in charge of the protest action
scene during the time of the plaintiff’s
alleged shooting and
was in charge of the scene and the implementation of the POPs/SAPS
tactical plan.
5.3.4
It is denied that any member of SAPS discharged live ammunition in
that all SAPS members employed the following
measures to manage the
violent and imminent attack by the protesters on SAPS members or in
managing the crowd:
5.3.4.1 stunt grenades;
5.3.4.2 gas/smoke screen;
5.3.4.3 rubber bullets
and stoppers which were discharged through shotguns
5.3.5
The use of the above tools was reasonably necessary and proportional
in the circumstances as the protestors
were committing various acts
of crime, posed a threat of serious violence to the other protestors,
members of the community and
the members of SAPS and were resisting
the efforts by SAPS members to apprehend the protesters or those who
were committing offences
in the presence of SAPS members.  The
conduct of the members of SAPS was at all material times in
accordance with section
49 of the Criminal Procedure Act 51 of 1977
(the CPA).
5.3.6
It is denied that the members of the SAPD entered the property
described by the plaintiff at paragraph 5
of her particulars of
claim
[2]
and shot her.”
(Sic)
[7]
Surprisingly,
the plaintiff did not object to the late amendment although it posed
an odd conflict to the remaining passages of
the plea that put her to
the proof of almost every allegation made by her, even the basis for
the jurisdiction of this court and
the allegation that the members
that she claimed assaulted her (who according to the amended plea
were certainly present in the
area at the relevant time and had taken
charge of the environment under the auspices of a POPU/SAPS tactical
plan that had entailed
at the very least the discharge of rubber
bullets and stoppers through shotguns)
[3]
were employed by the defendant and acting within the course and scope
of their employment with the police service whilst so doing.
[8]
Some
of the anomalies by the amendment were picked up on by Mr. Olivier,
who appeared for the plaintiff, in passing in his opening
address but
he confirmed that there was no objection to the plea being amended
and indicated that he held instructions to continue
with the trial
since there was no effect to the matter thereby whatsoever.
[4]
The statutory context:
[9]
It
was somewhat of a misconception however to imagine that the amendment
would not be problematic in relation to the defendant’s
still
bald denial that his members had harmed the plaintiff especially when
one has regard to the import of, firstly, the applicable
provisions
of the Regulation of Gatherings Act, No. 205 of 1993 (“the
ROGA”) - read together with
National
Instruction 4 of 2014 Public Order Police: Crowd Management During
Public Gatherings and Demonstrations (“the National

Instruction”)
under
which collective provisions the POPU would have assumed control over
the crowd management environment and have been legally
obliged to
regulate it and to restore public order said to have been compromised
by the claimed threats of serious violence relied
upon in the plea
[5]
and, secondly, the kind of justification envisaged by section 49 of
the Criminal Procedure Act, No. 51 of 1977 (“CPA”).
[6]
[10]
Both
of these justification measures empower the police to use force that
would otherwise be obviously wrongful to impose upon a
civilian
.
[7]
[11]
Section
9 (2) of the ROGA, for example, permits the use of force (but
excluding the use of weapons likely to cause serious bodily
injury or
death)
[8]
to disperse
participants in a gathering or demonstration,
[9]
or force entailing the use of a firearm and other weapons to prevent
or quell serious violence or damage to property in a crowd
gathering
environment provided
the
degree of force which may be so used shall not be greater than is
necessary for the prevention of the illegal actions aforementioned,

and are required to be moderated and proportionate to the
circumstances of the case and the object to be attained.
[10]
W
ere
it to be contended (as it was in fact the case in this instance) that
the plaintiff got hurt in the course of
a
crowd gathering operation for such a reason,
[11]
one would have expected the defendant pertinently to have admitted
not only that offensive measures
[12]
were taken in relation to the plaintiff by shooting her (or at least
by shooting in her presence), but also the “riot damage”

caused thereby,
[13]
and
thereupon to plead grounds for justification.
[12]
Section 49 of the CPA, the measure which
the defendant pleaded its actions accorded with at all material
times,
however,
also
gives police officers legal justification in certain circumstances to
use force in carrying out arrests, which were alleged
in the
defendant’s amended plea to have been purportedly inevitable
and necessary in these circumstances arising from the
crowd
management operation but it has not contended contrariwise that she
was arrested or that any peace officer purported to arrest
her at the
scene.
[13]
This section provides as follows:
“
49.   Use
of force in effecting arrest.
—(1)  For
the purposes of this section—
(
a
)
“
arrestor”
means any person authorised under
this Act to arrest or to assist in arresting a suspect;
(
b
)
“
suspect”
means any person in respect of whom
an arrestor has a reasonable suspicion that such person is committing
or has committed an offence;
and
(
c
)
“
deadly force”
means force that is likely to
cause serious bodily harm or death and includes, but is not limited
to, shooting at a suspect with
a firearm.
(2)  If
any arrestor attempts to arrest a suspect and the suspect resists the
attempt, or flees, or resists the attempt
and flees, when it is clear
that an attempt to arrest him or her is being made, and the suspect
cannot be arrested without the
use of force, the arrestor may, in
order to effect the arrest, use such force as may be reasonably
necessary and proportional in
the circumstances to overcome the
resistance or to prevent the suspect from fleeing, but, in addition
to the requirement that the
force must be reasonably necessary and
proportional in the circumstances, the arrestor may use deadly force
only if—
(
a
)
the suspect poses a threat of serious violence to the arrestor or any
other person; or
(
b
)
the suspect is suspected on reasonable grounds of having committed a
crime involving the infliction
or threatened infliction of serious
bodily harm and there are no other reasonable means of effecting the
arrest, whether at that
time or later.”
The impact of the
defendant’s amended plea:
[14]
Rule 22 (2) of the uniform rules of court
behooves a defendant to either admit or deny or confess and avoid all
the material facts
alleged in the combined summons or declaration and
to state which of these said facts are not admitted and to what
extent and shall
clearly and concisely state all material facts upon
which he relies.
[15]
In
this instance the defendant in my view opportunistically failed to
engage responsibly with the material facts
(most
especially accepting as a premise that the plaintiff was harmed by
being shot at and struck) despite the very onerous burden
placed upon
the specialised members of POPU by the provisions of the ROGA, read
together with the National Instruction, to be accountable
[14]
for such an operation undertaken at the scene of protest action
including any “riot damage” that arose therefrom.
[15]
[16]
Further, the acknowledgement by the
defendant that his specialized unit took charge of the crowd
gathering scene or environment
on the day and at the time of the
plaintiff’s claimed shooting and that certain measures were in
fact employed to manage
the alleged “violent and imminent
attack by the protestors on SAPS members or in managing the crowd”
coincidentally
very much put the defendant’s members on the
scene for legitimate operational functions under the provisions of
the ROGA.
Therefore, the defendant ought at least to have conceded
that the members meeting their constitutional policing functions were
conducting themselves as such, in Bathurst, on the day and at the
time the plaintiff says she was injured, at a place that resorts

within this court’s area of jurisdiction. Against such a
premise it could then be fairly concluded that the members concerned

were certainly acting in the course and scope of their employment
with the defendant as such.
[17]
One would also have expected the defendant
to have acknowledged the presence of the plaintiff in the area and
the possibility of
her having got in harm’s way as it were
either as being co-incidentally in the midst of the crowd management
environment,
a participant in the gathering or demonstration, or one
falling foul of the provisions of ROGA or other law, who happened to
have
been present (on the defendant’s version of what went
down) when the offensive measures adopted according to the tactical

plan were carried out by POPU, or arrests were effected, but no such
admission (or even possibility) was pleaded.
[18]
The defendant’s direct invocation of
section 49 of the CPA in any event further logically presupposes an
arrest of the plaintiff
or reason to have arrested her (in the sense
of her having been a “suspect”), that she was fleeing or
attempting to
flee during an attempt to arrest her while being aware
that such an attempt was being made, and more especially that “deadly

force” was in fact used, which violation of her bodily
integrity would otherwise be entirely wrongful in law.
[19]
It makes no sense in either justification
scenario outlined above then for the defendant to have purported to
deny that the act
complained of by the plaintiff was done unlawfully
without agreeing that the act was done in the first place. But deny
the defendant
did (baldly that the plaintiff was harmed by the police
or at all in fact), whilst reserving unto himself the right to argue,
only
if the plaintiff succeeded in proving that the police shot her
in such manner and place as she describes in her particulars of
claim, that such shooting was legally justified.
[20]
Although
an arrest in terms of the provisions of the CPA could arise naturally
after or following a dispersal manoeuvre under the
ROGA or in
consequence thereof, the defendant seems to have conflated the two
justification scenarios in the amended plea whereas
each come with
their own unique legal requirements.
[16]
The defendant would however certainly have attracted liability
by reason of a resort to either peculiar measure, whether
the alleged
harm is said to have arisen under the watch of the POPU during the
execution of the tactical operation, or afterwards
by the local
police purporting to carry out arrests as part of their ancillary
policing functions. Here the context was a fluid
scene of a claimed
unrest situation or crowd gathering that required offensive measures
to be put in place and which culminated
in arrests, although
ostensibly not of the plaintiff. Reading between the lines the
subtext for the possible entitlement to arrest
(and use of deadly
force
vis-à-vis
the plaintiff) is reliant on an inference in the first place that she
was acting criminally, but in order to get to that determination
this
court is asked to find that because she was injured by being shot in
her legs (a state of affairs that she was required first
to prove but
which admission the defendant seriously resisted making), it must be
inferred that she was therefore amongst those
being dispersed because
she had acted  unlawfully.
[21]
Not
only was the plea confusing, but it considerably lengthened the
proceedings since the plaintiff was obliged to establish every

material fact she relied upon, most notably that she had been shot or
injured at all (despite official records amongst the defendant’s

own discovered documents objectively recording that she suffered
gunshot wounds contemporaneously with the execution of the operation

and had to be removed from the crowd management scene by ambulance)
and, more significantly, that the perpetrators of the shooting
were
in fact police officers.
[17]
[22]
The
strange manner of pleading also affected the incidence of where the
onus lays because in a proper invocation of the provisions
of section
49 of the CPA that assumes an arrest
by
a peace officer
in the first place the defendant would bear the onus to establish
justification for the use of deadly force as contemplated by
that
section in the course of a police officer carrying out such an
arrest.
[18]
[23]
In
this respect the premise of the defendant’s case rested
especially on documentation that the parties had agreed upfront
would
be referred to at the trial, the authenticity of which the defendant
strongly vouched for.
[19]
Although the parties’ agreement did not extend to the truth of
the contents of any document in particular referred
to, the import of
the parties’ pretrial concessions at least confirmed that each
document was what it purported to be and
that the documents included
in their respective bundles were admissible in evidence without
formal proof.  In my view the
documentation that was discovered
by the defendant and especially relied upon contains its own
seemingly cohesive narrative of
the salient features of the incident
or event at least from the perspective of a crowd management
operation and what is expected
to be officially recorded in such a
context.
[24]
The
official records foretold for example that several rounds were in
fact discharged by the police on that day and during the
implementation of the POPU/SAPS’ tactical plan at the scene,
including in fact live ammunition earlier that afternoon.
[20]
The official documentation also heralded that the plaintiff had
suffered gunshot wounds on the same day and at the time of
the
implementation of the plan under the watch of POPU and that she was
transported away from the scene by ambulance because of
her serious
gunshot injuries.
[25]
For this reason, it appeared strained that
so much contention arose in the trial around the issue of whether the
plaintiff was shot
at all, or injured, and, if so, with what and by
whom, whereas the defendant’s amended plea (especially
paragraph 5.3.5 thereof)
was (and is) in my view capable of being
read as an implied admission that the defendant’s members
acting under the operational
command of one Captain Ntloko ultimately
had at the relevant time at the very least fired rubber bullets that
could have struck
and injured the plaintiff as claimed by her.
[26]
The
defendant’s plea might be termed a variation of a bare denial
or a bare denial with a twist (but without him investing
himself in
the variables or the twist) that the court strongly criticized,
albeit in the context of upholding an exception, in
the matter of
Nqupe
v MEC, Department of Health and Welfare, Eastern Cape Province
.
[21]
In that matter it was observed that it is not “technically
adequate” to plead a non-admission of facts in circumstances

where it results in the plaintiff being left in doubt about the
extent of the non-admission especially where the facts stated in
the
pleadings do not suggest any reason why the defendant would have no
knowledge of the particular fact relied upon.  In
the context of
the defendant’s plea, having conceded a shooting during the
ROGA operation that it has supreme control over,
and during which the
defendant accepts that their members discharged rubber bullets at
least in a scenario where reliance is placed
upon a purported
justification in terms of section 49 of the CPA to have used force,
it makes no sense to then have denied a shooting
of some kind, or
harm for that matter.
[27]
Reading
between the lines, as the court was obliged to in
Sokompela
v The Minister of Safety and Security
,
[22]
the defendant’s plea was in my opinion not really one of a
denial of the assault.  Instead, I regard it as a true case
of
confession and avoidance which has influenced the approach I adopt
herein.
Other challenges:
[28]
Something
else happened before the trial commenced which also led to an awkward
and sensitive situation. The plaintiff had sought
to file expert
notices and summaries of doctors that were delivered out of time and
to which the defendant objected.  Evidently
these experts,
Doctors Sauli and Naiker respectively, would have confirmed more
definitively that the plaintiff had in the first
place been injured
and with what object or tool. This would have put it beyond the pale
so to speak that the bullets or projectiles
lodged in her flesh, and
which were later removed by surgical procedure, had come from the
defendant’s arsenal as it were.
I understood that the intention
was that such an opinion might be formed in consequence by a
specialists in ballistics who the
plaintiff ultimately never
qualified.  The plaintiff in fact withdrew these notices and
took
up the challenge to prove that she had been injured by police
officers on the scene and her counsel awkwardly sought to establish

without the benefit of expert ballistic evidence that she had been
shot with ammunition that was commonly in use by the police
.
[23]
[29]
Whatever difficulties the plaintiff may
have brought upon herself by making the concessions which she did, I
mention as an aside
that in these unique circumstances
and
the complex nature of operations conducted under the provisions of
the ROGA where riot damage is acknowledged in official documentation

to have resulted,
the parties should before
the trial had commenced meaningfully have engaged with each other to
properly explore the exact areas
of contention against the spectre of
the provisions of the ROGA in particular,
by
focusing on the implied concession that the plaintiff had in fact
been injured, albeit in circumstances where it was suggested
she was
being arrested or had a reason to be arrested for her participation
in the protest action and got hurt in the course of
such arrest.
[30]
As it turned out, even the invitation
extended to the defendant to concede the issue of the jurisdiction of
this court was ignored.
[31]
Whilst
in a criminal trial it is perfectly permissible to simply put the
state to the proof of every allegation and for the accused
person to
count it as one’s fortune that it might not be possible for it
to meet its onus for one reason or another, in the
context of civil
trials and especially within the milieu of case management and its
objectives, the parties have a mutual responsibility
to ensure that
areas of contention are sensibly narrowed down.  The standard is
that litigants through their attorneys are
expected to “a
material degree” to “promote the effective disposal of
the litigation”.
[24]
[32]
In my view the parties ought at the very
least to have conferenced again after the amended plea was introduced
to consider, against
the unique impact of the defendant’s
revelation that his members had carried out a crowd management
operation (by necessary
implication under the provisions of the ROGA
during which ammunition was discharged), what further concessions
could then have
been made.
[33]
Be that as it may and against that
background, I refer to the salient features of the evidence that was
placed before me, firstly
by the plaintiff
who
accepted that she bore the onus
to prove
that she had been shot by the police in the Zweni homestead on that
afternoon and as best she could without expert ballistic
evidence to
establish that the ammunition used belonged to the police.
[34]
I should mention that there was a lot of
distraction about the precise nature of the injury suffered by the
plaintiff and what kind
of ammunition could have caused it, which I
do not consider it necessary to go into. It is in my view a red
herring, the only real
issue being whether the plaintiff was in fact
and on the probabilities harmed by the police during or as a tangent
to, or in consequence
of, the conceded POPU operation by being shot
at, whether with rubber bullets or live ammunition.
Plaintiff’s
testimony:
[35]
Ms. Dyibishe, 52 years at the time of the
testimony, confirmed that she was a resident of Bathurst. She was at
her own home in the
area until about noon on the day in question when
she learned that her brother’s son had passed away. She
proceeded to his
home on foot to commiserate with the family and
spent approximately four hours with them. On returning to her own
home after 4
pm (she estimated that it would ordinarily take her
about twenty or so minutes to walk between her home and his) she went
along
Memani Street where she noticed the presence of uniformed
police officers.
[36]
She observed that people were running away
and being chased by the police. She experienced being “shot”
by tear gas
which is how she ended up at the Zweni homestead for
assistance to ask for water and because she realized that she would
not be
able to push past the protestors in time to get safety to her
own house. She had noticed Ms. Zweni seated on her veranda and
approached
her for assistance. She observed the crowd coming nearer.
They entered the homestead together and Ms. Zweni closed the door

behind them. They sat on a bed together inside a closed room.
[37]
While so seated she became aware of people
running and entering the house who mentioned that they were being
chased by the police.
She heard windows breaking and the door of the
room in which they were seated being kicked open. The people inside
were told by
persons who she identified as uniformed police officers,
several in number, to come out. They were instructed to look down,
which
defence mechanism she had resorted to in any event because she
was afraid. She remembers being told to walk like a frog and it being

announced that they were being arrested. She claims that she did not
even have time to respond in the manner indicated by bending
her legs
and lowering her body down because she felt that she had been shot in
both legs by the police who fired at her.
[38]
It
became “dark” after she was struck and she only regained
consciousness later at the Port Alfred Hospital, where it
is common
cause, she was taken from the scene. She was hospitalized for an
initial period of two weeks and for a further fortnight
later on
again for a subsequent operation to her legs because, as she sought
to explain (before Ms. Ntsepe who appeared on behalf
of the defendant
objected on the basis that she did not have the capacity to form a
medical opinion in this respect), the “bullets”
she had
been struck with were still inside of her flesh.
[25]
At the time of trial, she was still mobilizing on crutches.
[39]
Photographs
taken contemporaneously at the trial were tendered into evidence
depicting the residual scarring to her legs.
[26]
These resemble circular, tending towards oval shaped, healed
scars. She further identified another photograph taken of her
by her
nephew at the hospital that evening depicting bandages wrapped around
each lower leg with dried blood depicted on her legs
and feet in the
forefront of the photograph.
[40]
She clarified, as she needed to since the
ambulance personnel had registered her by a different
moniker
,
that she had gone by the name of Macy Richards before her marriage
which is the name endorsed on the ambulance records pertaining
to her
removal from the scene and treatment of her by the paramedics called
to attend to her injuries.
[41]
She
admitted under cross examination that there had been protest action
in Bathurst that day that had commenced around 17 January
2019
already. She denied, however, that she was in any way involved in
these gatherings. She would not be drawn on the suggestion
that the
protests had intensified and become violent but could say at least
that there certainly was “toyi-toying”
going on.
[27]
[42]
She did not see that any of the protestors
were armed.
[43]
Although she was upset by what had happened
to her she explained that she had declined when invited by one
Warrant Officer Abrahams
after the incident to make a formal
complaint to the South African Police Services regarding the shooting
because she did not trust
speaking to a police officer. In describing
her emotions in this respect, she related that “
I
just entered fear and became totally wrong.”
She assured the court that this had nothing to do with any concern on
her part that it would otherwise show her up as having been

associated with the protestors.
[44]
Although she had been told that there were
cartridge shells left behind at the scene after she had been shot in
the Zweni homestead
she also refuted that the failure
of
these to have turned up for ballistic testing by the police at their
request was in any way sinister on her part.
[28]
The evidence of Ms.
Zweni:
[45]
Ms. Bulelwa Zweni testified that she was at
her home on the afternoon in question. From her veranda where she
sat, she could observe
the toyi-toying of the protestors going on to
her right. The plaintiff arrived from the opposite side at about just
after 4:30
pm, uninjured. She invited her in after realizing that she
had been affected by tear gas from outside and because, so she
clarified
under cross examination, the plaintiff had told her that
she was avoiding the protesting crowd. They went into the room. She
quickly
went to the kitchen to get water for the plaintiff which the
latter used to wash her face.
[46]
Shortly afterwards a crowd of protestors
ran into her home through the front door that she had not locked.
They locked the door
from the inside. The police, who were in
official uniforms one would normally associate with police service
members, arrived, and
kicked the front door open.
[47]
They came to the room where the two of them
were seated and ordered them out from the room. They were carrying
“big”
firearms and ones on their hips. She and the
plaintiff were instructed to bend down. She went out of the room
leaving the plaintiff
behind. She then heard shots being fired. She
looked back and noticed by looking at one of the plaintiff’s
legs that was
within her limited line of sight that the plaintiff was
bleeding below her knees.
[48]
There was a disturbance inside while people
were removed from the back room and pushed to the front, during which
time she too was
shot, she could not say by whom as there were many
police officers and she did not look at them. According to her no
persons inside
her home other than the police were armed. The bullet
that struck her entered her hip from the front through to her groin.
[49]
After having been shot, she was instructed
to kneel and put her hands above her head. They were taken out of the
house through the
gate and put in in a police van. From there they
proceeded to the Port Alfred police cells where she was detained in a
cell for
three days. Later she was moved to East London where she was
held in police custody for another four days.
[50]
She
believed that the reason for her being taken to East London related
to the fact that on 17 January 2019 there had also been
a “toyi-toyi”
in Bathurst whereupon she had been warned not to be among the people
who were striking or toyi-toying.
[29]
[51]
She concluded with the remark that on
the day of the shooting she had been consciously resisting any
involvement in the present
service delivery protest action because of
an earlier warning to her not to again be a part of this.
[52]
Thus, she openly acknowledged under cross
examination that around 4pm that afternoon, the protest action that
had commenced on 17
January 2019 already, was still ongoing. She was,
however, not inclined to agree that the protestors were violent,
neither could
she be drawn on what their actions entailed. She
explained that a school situated in front of her house in any event
obscured her
vision of the protestors and what they were getting up
to. She was unaware of any smoke or fire, neither could she hear
people
singing and chanting or observe anyone throwing stones or
petrol bombs at the police as was suggested to her through cross
examination.
To the contrary, she was quite firm that her business
was in her own home and that she was in no way part of the protest
actions
or in any way involved.
[53]
She conceded however that around 4pm the
protestors had moved uphill coming closer towards Meman Street at
Four Ways (in close proximity
to her house) and that the police were
following them. She refuted that she saw that any of them carried
stones or weapons. She
had noticed contemporaneously with the
plaintiff’s approach that some of the protestors were running.
When they came up closer
to her homestead, she was still seated on
the veranda but swiftly moved indoors together with the plaintiff.
[54]
She agreed that she had not seen with
her own eyes how the police had gained entry or anything else that
had happened behind the
closed doors of her bedroom where she sat
with the plaintiff, although she could discern as much by hearing.
[55]
She was not observant as to who came
inside her house but once she reached the police cells, she learnt
that 36 people had been
arrested at her home.
[56]
She estimated that she had heard
roughly 10 shots being fired in her home that day. She agreed that
all of the shots that rang out
were fired low down and that no one
was hit on their upper bodies.
The evidence of Ms.
Gaga:
[57]
Thembakazi Gaga a 33-year-old resident of
Bathurst testified that on 29 January 2019, after 4pm, she had come
from her sister’s
whose husband had died when she noticed a
crowd of people about. She stood and watched. In relation to the
Zweni homestead, which
was not known to her at the time as belonging
to Ms. Zweni, she was standing three houses away. Police arrived from
in front and
behind. They were wearing uniforms and bulletproof
vests. Shots were fired. She ran through an open gate into the Zweni
homestead
followed by police and other people in a crowd numbering
less than 20 people.
[58]
Windows were broken and the front door was
kicked open by the police who were carrying shotguns and pistols on
their hips.  They
were beaten by these uniformed police officers
who were wearing the standard navy-blue uniform with bullet proof
vests carrying
shotguns.  They insulted them by saying that they
were fed up with these “bitches” and wanted to go home.
Shots
were fired. They were instructed to frog-jump out of the house.
While she and others were making their way towards the door in this

manner she was shot in the buttocks and on her ankle.
[59]
She could not take the pain, climbed over
others, and went out towards the front of the house. There she was
held by a police officer
who kicked her underneath. He pulled her
back inside. The police wanted to count how many they were.
Subsequently they were
put in police vans but because it appeared
that she was bleeding she was brought back into the house.
[60]
Inside she noticed “Mother Dyibishe”
(the plaintiff) who the police were trying to rouse by lighting her
eyes with a
torch.  She could observe that the plaintiff’s
pupils were small.  She also saw blood coming from her legs.
Other
police officers came in wearing jeans and T-shirts. She could
identify them as police officers because she had encountered them

before at the Beavers restaurant in Port Alfred where she worked.
One of them was known to her as Debbie Hilbert.
[61]
Debbie Hilpert asked her if she knew the
plaintiff who she identified to her by the name Macy Richards.  The
plaintiff was
a friend of her aunts who called her by this name.
[62]
She was also asked to establish the
plaintiff’s age, which she put at 50.  She was
additionally asked if she knew what
medication the plaintiff was on
and informed Ms. Hilpert that she suffered from high blood pressure.
She could not say what the
plaintiff’s address was. One of the
plain clothed police officers rang for an ambulance. A mortuary van
arrived on the scene
first and then an ambulance vehicle.
[63]
They were all supposed to be removed from
the scene in one vehicle but the plaintiff’s situation was
assessed as an emergency
and so she was taken away alone. Another
ambulance arrived for her shortly afterwards and she, together with
others, was transported
to hospital where she was treated for her
injuries and discharged.
[64]
The vans at the scene were clearly
inscribed with the appellation “Police”.
[65]
She pointed out a scar among two others
just above her ankle to indicate where she personally had been
injured.  The scar was
described by counsel observing it more
closely as being circular in shape.
[66]
Under cross examination she agreed that she
had seen the plaintiff earlier that day whilst watching the
protestors around 4:30pm
although she could not pinpoint where
exactly.
The testimony of Ms.
Draai:
[67]
Ms. Ntombovuyo Draai also placed herself on
the scene.  She testified that she happened to find herself
between the Zweni homestead
and a neighbour’s house from which
she watched uniformed police arrive at the scene and enter her house
in pursuit of protestors.
She claims that after they left, she
entered the Zweni homestead and took photographs of blood she saw on
the floor.
She identified the photographs in Exhibit A as those
she took on her cell phone which she had since lost.
The testimony of Mr.
Richards:
[68]
Mr. Ayanda Richards, the plaintiff’s
nephew, was the last to testify.  He confirmed for his part that
he had contemporaneously
photographed his aunt’s injuries at
the Port Alfred Hospital the same evening of her admission.
[69]
He also related that he had been given
photographs sent on WhatsApp from Ms. Draai which he understood had
been taken at the scene
where the plaintiff was shot on 29 January
2019.
The plaintiff’s
admitted bundle:
[70]
The
plaintiff’s bundle of documents, which was admitted into
evidence without formal proof,
[30]
comprised of medical records of the Port Alfred Hospital pertaining
to her treatment at the hospital upon her admission on 29 January

2019 and following.  At face value they record her arrival at
the hospital on that day at 18h35, the observation that she
had
suffered gunshot wounds to both her legs.  Also, consistent with
her testimony, they record that on 2 April 2019 the hospital

performed surgery to extract foreign objects from her left leg.
[71]
One
of the admission records notes as follows: “
brought
in by EMS crew. Patient was in the toy-toy at Bathurst then got shot
on both lower legs.  Left leg – entry and
no exit point
noted.  RT leg entry.  No exit.  Fully conscious on
arrival but does not want to talk.”
[31]
[72]
In the doctor’s clinical notes of 29
January 2019 at 18h45 it is further noted as follows:
“
50
year old female apparently shot by police with rubber bullets in her
home, thought to be part of toy-toy in Bathurst.”
[73]
The
bundle also comprised of the photographs taken at the Zweni homestead
by Ms. Draai, of the supposed discharged cartridges observed
after
the shooting.
[32]
The defendant’s
case:
[74]
Captain Ntloko attached to the Public Order
Policing unit in east London was the only witness to give oral
testimony on behalf of
the defendant.  In January 2019 he was
the operating commander of the POPU.
[75]
On the day in question and at the time of
the plaintiff’s claimed shooting he was the operational
commander responsible for
the operational execution and coordination
of the tactical plan referred to the defendant’s amended plea
and who deployed
a platoon of six police members to Bathurst under
the watch of Warrant Officer Bishop earlier that day.  He also
dispatched
sergeants Bakumeni and Mageda together with the platoon,
who were responsible for the video component. The initial base was
later
strengthened by ten further POPU members who were added when
the initial offensive measures employed under the command of Warrant

Officer Bishop earlier in the day were perceived to be unsuccessful
in stabilizing the crowd scene and restoring public order.
[76]
He
alluded to what had been set forth in the tactical plan to manage the
crowd on the R67 Bathurst, which plan was included in the
police
bundle.
[33]
The stated
objective at the outset of the exercise, which is the standard of the
ROGA and National Instruction, was to manage the
crowd “
in
a professional manner that ensures that Public Order is maintained
by: Establishing uncompromising security measures: Limiting
the
probability of critical incident occurring. Limiting the impact of
any critical incident through intervention.”
[77]
The use of force policy required to be
adhered to in respect of the plan, consistent with what is outlined
in the National Instruction,
was stated thus:
“
Members
should display the utmost tolerance towards the participants.
All members must apply
the principles of minimum force, application of progressive levels of
force and no individual action unless
in self-defence or private
defence.
Force used, must be
appropriate and immediately cease as soon as the threat ceases.
40 millimetre Launchers
with CS, shotguns with rubber rounds (should be available but kept
out of sight)
No shotguns (rubber
bullets) or CS (teargas) must be used without instruction from the
Platoon Commander/Section Leader.
Pepper spray should be
used for arrest purposes and not for crowd management.”
[78]
The
stipulated arrest policy, as provided for in the ROGA, was that these
were to be managed through the local Bathurst police station.
The
ultimate “Operational order/Execution” with reference to
section 1 under Warrant Officer Bishop with 8 members
entailed
“negotiate, pushback and arrest” and section 2 under
Sergeant Matyeni involved both “pushback”
and “arrest”,
all resorting within the concept of “offensive measures”.
[34]
[79]
Although
Warrant Officer Bishop did not testify, the official recording of the
events from early that morning reflect the concern
that the POPU had
for escalating violence.  (Notwithstanding the objection by
plaintiff’s counsel that the matter-of-fact
noting of the
events should not stand in the place of actual evidence of these
accounts, it can in my view safely be deduced from
the tenor of the
SITREP that an obligation arose for the POPU to take charge of the
scene and bring their specialization to the
fore to restore public
order.)
[35]
[80]
He testified that when he arrived on at the
scene on 29 January 2019 at 17h10, there were approximately 500
people rioting.  The
road was blocked in the direction of
Grahamstown towards port Alfred and there were stones being thrown at
motor vehicles. Tyres
were also burning.
[81]
He took over as commander.  By this
point the riots were concentrated between the rail line at a place
known as Four Ways.
He described the situation as chaotic. The
protestors were singing.  They carried shields fashioned from
zinc.  Some
were armed with slings, and some started throwing
stones at the police. He and other members of POPU made a formation
in a half
circle.  He used stun grenades and threw them up in
the air as the rioters were approximately 15 footsteps away from
them.
The crowd scattered momentarily but came together again.
Participants threw stones and purported to “overpower”

them by “putting a crowd around them” and approaching
forcefully. There were by then approximately 550 rioters.
He
feared that those approaching would injure the police. He thus
ordered the POPU members with him, as a last resort, to shoot
5
rounds at the feet of the participants.  He then instructed that
the protestors should be arrested.
[82]
Subsequent to the shots being fired the
protestors scattered which he considered a successful application of
the dispersal manoeuvre.
Some of them ran into the bushes
and others entered into nearby houses and were “caught”.
[83]
They then reopened the road on his
instructions.
[84]
He was not at the scene for more than 15
minutes.
[85]
He explained that he had ordered the police
to shoot at the feet of the protestors because it does not cause
serious bodily harm
but would at least cause them to run away, which
in this case had such an effect. He acknowledged that in his vast
experience of
crowd management some participants might be injured by
falling on the ground in the running away whereas “some will
get injuries
and (be) caught.”  He clarified though that
even with the last resort type of offensive measure adopted such as
he had
in all the circumstances, injuries sustained by participants
would usually be in the nature of bruising to the feet from the
rubber
bullets whilst others might incur scratches because of their
falling on the ground.
[86]
In response to the question whether it was
possible that they plaintiff could have been shot in a house in
Bathurst as she had testified,
he clarified that his instructions to
the members to shoot was expected to happen in an open, outside
space.
[87]
He clarified that the rubber bullets
utilized by the POPU (also called residuals) that would have been
discharged by shotguns under
his command are white in colour.
[88]
He did not have any knowledge of the
plaintiff.
[89]
He claimed rather surprisingly (since the
official IRIS records indicate the contrary) not to have been aware
of any ambulances
dispatched to the scene. Later under cross
examination he clarified that he meant that at the time he was on the
scene he had not
been aware of an ambulance and, to prove that he was
not avoiding the question, offered the explanation that had he been
aware
of it at the time, he would certainly have embraced the
knowledge of an injury. Indeed, as he rationalized:
“
If
I did see an ambulance on that day in question, M’Lady, I
should have mentioned it by saying, I did see it. As a commander
I
must be part of everything and go and see. If there is an ambulance I
must be also a part there and see what is happening there,
at the
ambulance, as a commander. More especially, M’Lady, a person is
being injured.”
[90]
He accepted however, with reference to
relevant entries in the IRIS, that the dispatch of an ambulance was
recorded in the narrative
of what had happened that day.
[91]
He
acknowledged that the arrests of participants that afternoon numbered
around 56 but he had no personal knowledge or experience
of these.
(As an aside no record was produced during the trial to indicate who
was arrested at the scene, where exactly the suggested
suspects were
arrested or who the relevant peace officers were who carried out this
aspect of the tactical operation, although
one would certainly expect
such information to be necessarily reported in relation to a crowd
incident.)
[36]
[92]
Under cross examination he confirmed that
the members under his command had been clothed in uniform or field
dress and that they
were armed with both shotguns and side pistols.
The also wore body armour and helmets.  The members of the
police from Bathurst
numbering more than 10 were identifiable by
uniform as well.  He confirmed with reference to video footage
what apparel and
insignia was common among the members present on the
scene and how the POPU members could be distinguished from the normal
members.
[93]
He clarified that the POPU does not use the
blue shotguns shells containing rubber bullets.  (He
acknowledged with regard to
the picture shown to him purportedly
taken at the Zweni homestead after the shooting, showing examples of
such shells that these
were those.)  However, he claimed to have
no knowledge of what ammunition was in use by the “normal
police.”
[94]
He confirmed that he did not enter into any
of the houses in Bathurst that afternoon, and also had no knowledge
of any blue shotgun
shells found inside the Zweni homestead.  He
also claimed to have had no knowledge of the plaintiff supposedly
being shot
in a house, only having heard about it for the first time
in court.
[95]
He conceded that despite what had been
pleaded on the defendant’s behalf the IRIS records to the
contrary reflected that live
ammunition had been utilized at the
crowd scene that day. Although he distanced his own team members from
having done so he was
constrained to concede under cross examination,
when shown a video of the earlier dispersal operation that day that a
POPU member
is visibly seen carrying a R5 rifle in his hands which is
capable of firing live ammunition only. He seemed to equivocate at
first
in this respect but ultimately explained that he had misstated
his first response under cross examination to the question whether

the police had used live ammunition that day, which was to the
following effect: “
If we are
referring to public order police, my answer is, yes.”
[96]
He explained though that he had heard the
question wrong:
“
You
said, I hear you correctly, you said the police, that is the South
African Police and then I talked about POPS and you asked
if they
ever used live ammunition.  I said, yes.  I said, yes, but
POPS used the rubber ones. When I am reading this
bundle in front of
you,
[37]
there is a police
which used live ammunition. In this bundle they were not POPS
members, M’Lady. That is how I answered the
question to that.”
[97]
He
conceded that what is stated in the amended plea by the police that
no live rounds were discharged
on
that day
,
was factually incorrect.
[38]
[98]
According
to his own assessment of the threat at the time he took over command
of the crowd scene, he was satisfied that the police
were dealing
with an “unrest situation” which, regarded on the
National Instruction’s scale of threats, he put
between levels
2 and 3. (Level 1 according to the scale poses a peaceful gathering
scenario where there is no threat, or where
no need for the use of
force is envisaged. Level 2 presupposes a scenario where there is
“unconfirmed information regarding
a possibility of a threat
against lives and property.”  Level 3 is reached when
there is confirmed information regarding
a likely threat to lives and
property. In this respect the POPU is required to take operational
command although visible policing
at station level and the Metro
Police service may be utilised to assist in policing the event.)
[39]
[99]
He
clarified that regardless of who among the team were “normal
members” that he would have assumed overall command
and that he
would have taken over “everything” but this seems to have
concerned only his dispersal manoeuvre.
According to him the
“normal police” were there but only to make an arrest of
the people running.  In his estimate,
which is quite bizarre
given his accepted responsibility under ROGA to take operational
command in level 3 incidents in order to
stabilise the situation, he
asserted that they (the “normal police”) were not part of
the crowd management situation
most especially the dispersal
manoeuvre.
[40]
[100]
Thus
asked at what point the SAPS members would have assumed any role at
all he clarified that they were on “the sides”
when
people were running away and their obligation was to catch or arrest
the ones nearby at least as opposed to those who might
manage to run
away.  There were at least more than ten such members who he
suggested were (again strangely given his overall
responsibility for
the operation under the auspices of the ROGA and the tactical plan
agreed upon which extended to possible arrests)
not under his command
or control.
[41]
[101]
As for matters under his control, despite
the national Instruction requiring him before a resort to the use of
offensive measure
involving force to have warned the protestors he
conceded that he did not.  The reason indicated why that is so
is because
“
in the manner in which
they were … there was violence. They did not give us a chance
to do that.”
[102]
As for the suggestion put to him that the
defendant’s justification seemed to rest on the premise that
the plaintiff was first
shot in the crowd outside and then ran inside
the Zweni homestead he discounted such a possibility on the basis
that if it had
happened like that he would have taken responsibility
for the plaintiff as an injured party.
[103]
He initially conceded that he had
understated in his evidence in chief how many stun grenades and
rocket flares he had discharged,
but then qualified that some of
these had been discharged earlier in the course of carrying out the
operation.  He confirmed
however that only one stun grenade and
rocket flare was thrown by him at the scene of the dispersal
manoeuvre
he
ordered.
The defendant’s
admitted documentation:
[104]
The
parties agreed that the official videographer on the scene, Sergeant
Bakumeni, be excused from giving oral testimony.
An
affidavit deposed to by him was admitted into evidence in which he
essentially confirms that he recorded what is on the disc
that was
entered into evidence, that it was taken by him, downloaded from his
camera to make the working copy exhibited in court,
and that it
represented a true visual of the events of that day without edit or
tampering.  He explained however that there
was no video
recording of the incident closer to 5pm that day.  This was
unfortunately because both his main and back up batteries
had died.
He had left his own charger behind and could not be assisted at the
station to charge them.  Therefore, at
the time the arrests
occurred he was at the station and missed capturing this important
event at the scene.
[42]
[105]
It is unnecessary in my view to explain in
detail what is on the disc entered into evidence neither did counsel
provide a common
description.  I have elsewhere alluded to the
fact that it certainly supports a basis for the POPU to have been
dispatched
to the scene, but in the absence of any footage at the
vital time of the alleged shooting of the plaintiff, there is no
official
account of the arrests of any offenders at the crowd scene.
[106]
It is necessary, finally, to traverse the
documentation introduced by the defendant into evidence marked
Exhibit D.
[107]
In
the first instance a docket appears to have been opened, and a
complaint initiated, by Warrant Officer Abrahams stationed at
the
Bathurst police station on 7 February 2020
of
an attempted murder alleged to have been committed on “2019/01/30
at 14h00”
[43]
at
Kalikeni Street, Bathurst. On the clear face of it this docket
relates to the shooting of the plaintiff. The description of
offence
is described on the docket cover as “possibly allegedly shot by
rubber bullets” and is supported by the A1
statement of Warrant
officer Abrahams in which he describes steps taken by him in the
course of investigating the alleged shooting
incident where “a
lady” was “allegedly shot”.  He avers that he
was instructed by cluster commander
Brigadier Govender to follow
up.
[44]
The victim who
is the subject of the investigation is reported to have suffered
“possible gunshot wounds on both limbs”
and is stated to
still be in the hospital at the time of making his statement.  He
confirms as the plaintiff also stated in
her testimony that the
victim does not wish to discuss the matter or open a case.  He
further relates his discussion with
a doctor concerning her condition
(and her message via him that she does not wish to open a case) and
the latter’s confirmation
of the need for further surgery to
remove a “possible projectile” from her limbs.
[108]
The
investigating diary further reflects his attempts (also referenced by
the plaintiff in her testimony) to have persuaded her
to make a
statement but to no avail. He also clarifies in the diary that he was
instructed to open the case on behalf of the plaintiff
with the
docket to be transferred to IPID for further investigation as it is a
“police unknown docket.”
[45]
[109]
The next document is the Public Order
Policing Tactical Plan which I have referred to above in my summary
of Captain Ntloko’s
testimony regarding how the crowd scene was
intended to be managed.
[110]
This is followed by a typed series of IRIS
“Explanation for an Incident (that has taken place)”
occurrence book entries
generated by the POPU (WO JS Olivier)
concerning the incident which is categorised eventuality wise as
“Crowd (unrest)”
with reference to: “
+
500 People at Bathurst Barricaded R67 Route with Stones on 29 January
2021” at 08:00.  It focuses on early events of
the day
commencing at 10h00.  It reflects equipment used by the POPU
members on the scene under the command of Warrant Officer
Bishop,
evidently to push protestors back to the “location” from
the R67 Road, reported to have been managed with success
although a
threat remained in that the protestors were wanting “to come
back on the road.” The next focus is on what
happened higher up
at the railway line (still earlier in the day).  Two assaults on
POPU members are noted, one reported to
have been taken to hospital
for medical attention. There is a focus on activity back on the
national road at 15h15.  It is
again recorded that the POPU
members pushed protestors back to the location “using pyro tech
and rubber”. It records
the arrest of two persons at the same
time on charges of public violence. (Notably there is no detail
concerning the events and
command of the scene by Captain Ntloko
around 17h00 save his report that 36 suspects were arrested; that
“the situation is
still tense” and that his members are
patrolling the area.)
[111]
A
fuller narrative of events happening at the crowd gathering
environment is provided in the context of “SITREP”
entries
in the joint operation centre (“JOC”) occurrence
book.
[46]
It is thorough in
its detail and suffice it to say that in its telling paints a picture
of escalating threats to public order.
Its speaks of the need for
intervention by POPU and the arrival on the scene initially of only
six members (plus two video operators)
to assist, their failure to
persuade the protestors to listen and the action taken through a
dispersal manoeuvre earlier in the
day to clear the road. This is
noted to be momentarily successful in the sense that the road is
opened but the situation inside
the township remains tense with fires
being started warranting the need to send a fire engine.  The
need for backup from other
stations is noted and increased manpower
in the form of ten more POPU members, both of which components are
later provided. Threats
concern the size of the crowd growing and
moving from the perimeter of the bush where they can’t be
seen.  Stones are
being thrown at motor vehicles on the road.
New fires are started along the railway line and obstructions are
placed in different
parts of the road. Two petrol bombs are thrown at
the police contingent although one does not explode. It is at this
point (at
12h19) that Warrant Officer Abrahams is reported to have
fired three live rounds in the ground. Later it is noted that two
police
officers are injured, one requiring attention at the hospital.
A telephone threat to members living in the community that they are

going to be killed is phoned in to the police station. Two complaints
of damage caused to motor vehicles by stones thrown at them
on the
national road are noted in the space of twenty minutes.
[112]
The next significant entry is at 17h00 when
Sergeant Colonel Reddy informs the JOC that he needs a closed
“bakkie” as
arrests have been made.
[113]
The
following entry at 17h30 records the same officer reporting the need
for an ambulance for one of the protestors who has a gunshot
wound.
At 17h45 it is again reported by him that approximately 25 people
have been arrested and that two of the suspects
are injured, one
seriously and awaiting an ambulance. This “suspect” is
transported to P.A (probably a reference to
the Port Alfred
hospital).
[47]
At 17h46 it is
stated that the ambulance arrived and that Captain Slabbert escorted
it into the township to the injured people.
The final arrest count
noted at 19h41 is of 29 women and 5 men.
[114]
Even though an entry at 20h30
records that POPU members are still patrolling the area, there is
really nothing much written about
their input at the critical time
before the shooting.
[115]
On Friday 1 February 2021 at noon it is
reported that the “JOC” is closed by reason that there is
no protest nor blockages
taking place in Bathurst and that “all
is normal so far.”
[116]
The next document is the local occurrence
book of the Bathurst police station which contains some SITREP
entries notably regarding
the closure of the R67 road (and others in
consequence) from early morning and that the protestors are making
fire with tyres and
branches, the arrival of POPU members led by
Warrant Officer Bishop, the early morning dispersal, the dispatch of
a fire-engine,
the need (at 09h40) for back up from other stations as
the crowd is throwing stones and bottles at the police, at 12h55 the
concern
noted that “the situation is getting worse” and
that community members are throwing petrol bombs at police members,

and the noting of injuries to POPS members.  At 13h26 there is a
called in threat from an anonymous male person to the station
that
the captain must go and collect the uniforms of all police members
who live in Bathurst because they “are going to die”;
and
at 16h30 the report of a complainant is noted that her vehicle has
been stoned on the R67.
[117]
The Occurrence book register of the POPU in
East London itself carries the incident report of Warrant Officer
Bishop of the failed
attempt in the morning to negotiate with the
crowd on the R67 culminating in his dispersal
manoeuvre
.
It records the needs for a further dispersal
manoeuvre
at 12h00 because participants are reported to be
throwing stones with the intent of coming back on the road.  It
notes that
no arrests have been made up to that point.  A report
15 minutes later records that the participants have moved up to the
railway line where they are making fires.  Thirty minutes later
Warrant Officer Bishop asks for a Nyala.  Next there is
an
injury on duty recordal of the two POPU members having sustained
injuries from a sling shot and a stone thrown respectively.
At
16h31 there is a report of two arrests made in Bathurst for the
offence of public violence.
[118]
Significant for present purposes is Captain
Ntloko’s own report from takeover from Warrant Officer Bishop
(which supports
the premise that the team deployed under the latter’s
command had not had the desired result and that more support was
needed)
made only later that evening at 23h15 as follows:
“
On
my arrival at about 17 H 10 the road was blocked, and they throw
stones to the side of the police has the result the police were
so
difficult to control the situation I instructed the police to
disperse and arrest the perpetrators 36 people were arrested and
some
of the members used some ammunition.”
[119]
He then details all the ammunition used by
each member which accords with the other records in this respect.
[120]
Significantly he notes that no injuries
pertained owing to his dispersal manoeuvre.
[121]
These records are followed by an isolated
Bathurst OB extract in which Warrant Officer Abrahams (consistent
with what is in the
docket described above) has made his own report
on 4 Feb 2021 as follows:
“
I
get instructions from Brigadier Govender to follow up on a allegedly
shooting incident happened on the 30/01/2019 in Bathurst
area.
I proceed to hospital to make enquiries on my arrival at the hospital
I went to the ward and met with Sister Whitebooi
who received the
patient Nomsa Dyibishe (Richards) of … Bathurst.  I
informed Sister Whitebooi and she informed me
that they received the
patient with allegedly gunshot wounds (rubber) on both legs with a
right fracture fibular and the patient
will be discharged on
2019/02/04. So the bullets does not have a exit it is still inside
the patient lower limb And it will be
discharged only on 2019/02/18.
The patient will be discharged with a back ... Then I spoke to her
doctor Dr Sauli … and
he informed me that he discussed with
his patient, that she must not open a case now.  She must heal
first, so they will take
a decision after the 18/02/2019, when he
examined her again, I also inform the doctor that the police can open
a skeleton docket
on behalf of the victim and he informed him that he
discussed with his patient and they agree to wait until she is heal.
I even
asked Sister whitebooi to go and find out if the victim wanted
to speak with me to interview her and she informed Sister Whitebooi

that she discussed with her doctor that she will open a case or speak
with police when she is heal, and the doctor informed me
after he
remove the bullet he want to hand over to the investigating officer
for the chain of custody. I left my number at Sister
Whitebooi at
Port Alfred hospital to give my number to the Doctor if there is
anything they need from SAPS. So they don't want
any cases to be open
at this stage.  And also the nurse Sister Whitebooi that the
entrance look like big bullets.
”
(Sic)
[122]
The
next document
in this series is the patient report form of the province of Eastern
Cape Ambulance Service which reflects on the
face of it that Macy
Richards was attended to on 29 January 2019 on location “at
Bathurst SAPS”.  The mobile report
is said to have come in
at 17h26.  They record being present on the scene at 17h48.
The scene is departed from to the
hospital at 18h14 and they arrive
at the hospital at 18h30. The history or mechanism of injury recorded
on the patient form is
“gunshot” with the chief complaint
“
had been shot with a gun into
both legs by a police.”
[123]
The next document reflecting the handover at the
Netcare Emergency Department is the patient treatment form in respect
of the plaintiff
with time of arrival triaged and to bed reflected as
being at 18h35.  The indication under the heading “Trauma”

is of an injury on 29 January 2019 of gunshot. Under signs and
symptoms it is endorsed on the records that “
Brought
in by EMS crew.  Patient was in the Toy-Toy at Bathurst then got
shot on both lower legs.  Left leg- entry and
no exit point
noted. Rt leg entry.  No exit.  Fully conscious on arrival
but doesn't want to talk.
”
Discussion:
[124]
The first question for determination is whether the plaintiff was
injured.
[125]
There is in my view a host of objective evidence that supports the
probable conclusion that the plaintiff
was at least injured
contemporaneously with the operation of the POPU’s tactical
plan in the late afternoon of 29 January
2019 and that the SAPS
acknowledged the injury firstly by facilitating the entry into the
township under the control of POPU of
an ambulance to deal with her
gunshot injuries and her emergency dispatch to the Port Alfred
Hospital to be treated.  The
injury is also noted and followed
up by Warrant Officer Abrahams according to National Instruction
protocol after the fact.
[126]
The entries in the admitted hospital records support the plaintiff’s
testimony that she was struck
on both legs.  The unsolicited
investigation (at least from her perspective) after the shooting as a
protocol measure adopted
in a situation where force had been used, is
also consistent with a recognition by the defendant of an injury
arising in the course
of the operation that was necessary to be
followed up on and further supports the plaintiff’s testimony
that a procedure
after the fact to extract a foreign object in her
leg was carried out.  This too confirms that the injury was in
the nature
of a gunshot wound.
[127]
As stated earlier it is not fatal to the plaintiff’s claim that
no ballistic evidence was adduced
to confirm definitively that what
was extracted from the plaintiff’s leg in the follow up
procedure constituted remains of
cartridges ordinarily fired by a
police weapon.
[128]
Neither does it matter in my view whether the cartridges purportedly
seen after the shooting were white
or blue because the defendant
would be vicariously responsible in principle to account for all
gunshot injuries caused to a person
during the course of a ROGA
operation whichever enforcement agent may have discharged them.
[129]
It was never suggested that the plaintiff was shot by a firearm from
a rogue source.  The suggestion
put to her under cross
examination that she may have been shot by a metro police officer
also cannot be sustained as all persons
discharging firearms during
the course of the operation and under the command of Captain Ntloko
were accounted for by him as either
ordinary SAPS or POPU members.
If any metro police were involved this would in all probability have
been reflected in the
official IRIS entries.
[130]
The next question is whether the plaintiff was shot inside the Zweni
homestead.
[131]
The premise for the defendant’s case that the plaintiff must
have been up to no good and probably
got shot during the dispersal
manoeuvre consistent with the command having been
given by Captain Ntloko to shoot at the feet of the protestors is not
supported
by his testimony.  In fact he emphatically discounted
the possibility. Nor is it reflected in any of the official IRIS
entries
that persons were injured outside when he issued
the
command to shoot in the course of dispersing the crowd.
[132]
What is of course missing from his account is what happened “on
the sides” as he put it, when
the protestors ran away and how
they were arrested by the normal police officers who were tasked with
such a function by the tactical
plan.  The “normal
members” simply offered no evidence to fill in the gap.
[133]
There is no reason to reject the plaintiff, Ms. Zweni or Ms. Gaga’s
evidence that the plaintiff was
injured inside the Zweni homestead
which was not gainsaid for example by the ambulance personnel who
transported her away from
that address.  Also no evidence was
led to counter the testimony of Ms. Zweni or Gaga as to where they
were arrested.
This information is simply absence from any
official police records.
[134]
In any event it is more plausible as was the cohesive contraction of
all the accounts given on behalf of
the plaintiff that the crowd and
the police converged on Ms. Zweni’s homestead.  Captain
Ntloko also testified to the
running into houses by the crowd after
the dispersal
manoeuvre and it is common cause
that her homestead is in close proximity to where Captain Ntloko was
when he gave the command to
shoot.
[135]
Even assuming that the plaintiff was shot in the course of the
dispersal
manoeuvre authorised by Captain Ntloko,
the defendant has failed to make out a case for justification on the
basis envisaged in
terms of section 9 (2) of the ROGA.
Instead
the pertinent defence of the defendant implicates the exercise by the
SAPS of an arrest yet there was an absence of any
testimony by the
defendant, who in my view bares the onus in this respect despite his
bare denial, to justify the plaintiff’s
injury having been
sustained on such a basis.
[136]
The emphasis of the cross examination of the plaintiff’s
witnesses throughout purported to present
her, not as constituting a
threat in her own right, but as being part of a menacing troublesome
crowd/gathering of nameless and
unidentified protestors whom she
supposedly associated herself with.  Even such a premise is
entirely enigmatic.  Indeed,
even if she associated herself with
the cause, this would not
per se
have put her on the wrong
side of the law. More was required form the defendant to develop his
case along the lines of the purported
justification for the harm
suffered by the plaintiff during the exercise of the tactical
operation.
[137]
In order to justify the application of deadly force in terms of
section 49 of the CPA, the defendant needs
to have established the
requirements set forth in the section.  For one, it must be
established as a fact that the plaintiff
was being arrested or
fleeing from an arrest.  No such evidence was presented.
Instead the court was asked to draw an
inference to such effect.
Given Captain Ntloko’s disavowal that the plaintiff was injured
flowing from his final dispersal
manoeuvre such a request is
untenable and is not borne out by the evidence.  Instead the
officers who purported to arrest
the plaintiff should have tendered
evidence to explain why they used “deadly force” in
carrying out their ancillary
part in the tactical plan that
proscribes the use of force.  It was certainly not within the
contemplation of Captain Ntloko
that force not authorised by him
would be employed by non-specialised officers.
[138]
In the result the defendant has failed to meet the onus on it to
prove any justification for the shooting.
[139]
Before concluding, I dismissed the defendant’s application for
absolution from the instance on 12
November 2021.  I indicated
that reasons would be furnished together with my merits judgment upon
the conclusion of the matter.
In dismissing the matter, I noted
in summary that:
“
Applying
the classic test whether at this stage there is evidence upon which a
court might reasonably find for the plaintiff and
having regard to
the facts and evidence that this court should have regard to in
making that consideration, I am satisfied that
the evidence at least
prima facie establishes that the plaintiff was assaulted and that by
members of the South African Police
Service or, in respect of the
plaintiff’s alternative claim, that police members discharged
(a) firearm(s) in her presence
in circumstances where the pleaded
conclusion of negligence may be drawn.”
[140]
I have indicated above the complex nature of the case and the not
technically adequate form of pleading
employed by the defendant even
though the last minute amendment to his plea passed without demur
from the plaintiff.  Especially
in the context of the peculiar
provisions of the ROGA and the admitted documentation that the
defendant intended to rely upon as
providing the contextual
background to the conceded discharge by the POPU members of
ammunition in the course of the execution
of the POPS/SAPS tactical
plan whilst being in charge of the protest action scene, I considered
that there was enough of a reason
to require an explanation from the
defendant for the injury that had arisen.
[141]
Not only
did the documentary evidence offer an insight into how the injury
might have happened, but the implied reliance of the
provisions of
ROGA introduces a unique situation of legal accountability in crowd
gathering management situations under its provisions.
[48]
Order:
[142]
I issue the following order:
1.
The defendant is held liable for such damages as are found to be
proven arising upon her having been
shot by the defendant’s
members at 1035 Memani Street, Bathurst, on 29 January 2019.
2.
The defendant is liable for the costs of the hearing.
_________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING

14, 17-19 May 2021and 19 - 20 May 2022
DATE
OF CLOSING
SUBMISSIONS

:         27 October 2022
DATE
OF JUDGMENT           :
5 October 2023
Appearances:
For
the plaintiff
: Mr. W Olivier instructed by McCallum Attorneys, Makhanda
(ref. Mr.
M McCallum
For
the defendant       : Ms. L Ntsepe
instructed by The State Attorney, Gqeberha (ref. Ms. N Fudumele)
[1]
The
special plea (which asserted that the plaintiff’s claim was
unenforceable in law for want of compliance with the provisions
of
section 2
(2) of the
State Liability Act, No. 20 of 1957
, read
together with the provisions of
section 5
(1) of the Institution of
Legal Proceedings against Certain Organs of State Act, No. 40 of
2002) had already been withdrawn by
a notice filed on 30 January
2020.
[2]
This
is a reference to the Zweni homestead referred to above.
[3]
One
of the material facts relied upon by the plaintiff is that she was
harmed by the police using both live ammunition
and
rubber bullets.
[4]
Evidently however counsel had serious misgivings about the amended
plea later on during the trial. (Transcript: Vol 2 at page
16 and 32
and Vol 3 at page 5).
[5]
The
provisions of the ROGA must be read together with National
Instruction 4 of 2014 Public Order Police: Crowd Management During

Public Gatherings and Demonstrations (“the National
Instruction”) which sets the standard for the policing by POPU

of public gatherings, the combatting of serious and violent crimes
including stabilizing outbreaks of public violence incidental
to
crowd gathering during such management, the rendering of specialised
operational support to other police components or divisions,
and
information management.
[6]
The defendant denied both allegations, firstly that his members shot
the plaintiff by discharging a firearm, rubber bullets,
projectile
or live ammunition and, secondly, that they entered the Zweni
homestead and shot her there yet the amended plea impliedly
conceded
possible, but justifiable, harm.  Further, by necessary
implication, a physical connection by a peace officer with
the
plaintiff in order to arrest her must be assumed as well as harm
caused to her in the course of such arrest, or why else
would the
provisions of section 49 find application at all?  It’s
very
raison
d’etre
is to justify the application of deadly force in circumstances where
an arrest is playing itself out.
[7]
See
the object of the ROGA and the general tenor of its provisions which
seek to balance the competing interests of the police
obliged to
ensure public order during public gatherings and demonstrations by
the use of force if necessary against the right
of every citizen to
assemble peacefully and unarmed, to gather and demonstrate etc., and
to enjoy the protection of the State
while doing so.
[8]
Apart from the injunction in the ROGA itself to exclude weapons
likely to cause serious bodily harm, the National Instruction

endorse this approach in paragraph 14 thereof. Leave aside the
manner in which the use of force is to be applied to minimise
or
avoid serious injuries, the use of pepper spray and teargas (CS),
for example, are generally not permitted.  The use
of firearms
and sharp ammunition including birdshot (fine lead pellets) and
buckshot (small lead pellets) are prohibited.
Rubber rounds
may only be used as an offensive measure to dispel a crowd in
extreme circumstances, if less forceful methods have
proven
ineffective.
[9]
Such force is aimed at dispersing the persons gathered, the degree
of which shall not be greater than is necessary to disperse
the
persons gathered and shall be proportionate to the circumstances of
the case and the objects to be attained.  (See section
2 (b)
and (c) of the ROGA.)
[10]
See sections 2 (d) and (e) of the ROGA read together with paragraph
14 of the National Instruction. The purpose of offensive
action must
be “
to
de-escalate conflict with the minimum force to accomplish the goal
and … the success of the actions will be measured
by the
results of the operation in terms of loss of life, injuries to
people, damage to property and cost.”
[11]
The defendant referred to the gathering as “service delivery
related protest action”.  A gathering is defined
in
section 1 of the ROGA as “
any
assembly, concourse or procession of more than 15 persons in or on
any public road as defined in the Road Traffic Act, 1989
(Act No. 29
of 1989), or any other public place or premises wholly or partly
open to the air—
(
a
)
at which the principles, policy, actions or failure to act of any
government,
political party or political organization, whether or
not that party or organization is registered in terms of any
applicable
law, are discussed, attacked, criticized, promoted or
propagated; or
(
b
)
held to form pressure groups, to hand over petitions to any person,
or
to mobilize or demonstrate support for or opposition to the
views, principles, policy, actions or omissions of any person or

body of persons or institution, including any government,
administration or governmental institution;
”.
A
“demonstration” in turn “includes any
demonstration by one or more persons, but not more than 15 persons,

for or against any person, cause, action or failure to take
action.”.
In
paragraph 2 of the National Instruction “crowd management”
means “the policing of assemblies, demonstrations
and all
gatherings, as defined (in the ROGA), whether recreational, peaceful
or of an unrest nature.” Although the defendant
did not
concede any injury to the plaintiff, the fallback defence is that if
she was injured by the police she must have gotten
struck for such a
reason or in the course of managing the crowd gathering.
[12]
“Offensive measures” is defined in paragraph 2 of the
National Instruction as referring to “
reactive
tactical measures required to normalise a situation and includes
search and seizure, pushback, evacuation, encircling
and dispersal
and requires the systematic escalation of appropriate force.”
By contrast “defensive measures”
refer to “pro-active
tactical measures such as static barriers (which are used to protect
and safeguard people or property),
negotiation, cordoning off,
block, isolate, patrol, escort and channel.”
[13]
“Riot
damage”
,
in section 1 of the ROGA, means any loss suffered as a result of any
injury to or the death of any person, or any damage to or

destruction of any property, caused directly or indirectly by, and
immediately before, during or after, the holding of a gathering.
[14]
I
do not mean in this sense necessarily liable in delict but
constitutionally accountable to ensure the maintenance of public

order during public gatherings and demonstrations, to regulate such
an environment and, if violence is anticipated or has occurred

during any such environment, to restore public peace.
[15]
Accountability endures after the event as well in the form of
reporting and detailed record keeping on
IRIS
(the Incident Registration Information System used by the police
service as a database to record incidents and store information),

the handing in and preservation of video footage (
according
to paragraph 4 (4) of the National Instruction video camera
operators must be designated and employed by the information
manager
at all events to monitor the event with evidence based video footage
regarding events that have been identified in the
threat
assessment), the opening of relevant case dockets, and ultimately a
debriefing where lessons are learnt from incidents
so as to be
discussed and incorporated into maintenance exercises at unit level
to ensure POPU members’ readiness for operational
deployment
in the future.  The extent of scrutiny and level of
accountability envisaged by the National Instruction simply
does not
accord with the defendant pleading a bald denial of riot damage
arising during the implementation of a POPU/SAPS tactical
plan or
putting persons harmed during such operations to the proof of such
damage. The POPU has a clear obligation in terms of
the National
Instruction to be “accountable” then in this sense for
any collateral damage arising. It is in no position
to throw up its
hands and suggest that it has no knowledge of it when harm has been
occasioned to civilians under its watch.
It must be able to
give a full account of the incident from the planning stage through
to its execution and of any fallout.
Any arrest carried out
during such an operation would also be important for the POPU to own
as a vital feature or incident thereof.
[16]
Paragraph
5.3.5 of the amended plea seems to have cobbled together elements of
both section 9 (2) of the ROGA and section 49 of
the CPA.
[17]
It is quite ironic that each of the plaintiff’s witnesses were
further challenged how they could know from the apparel
of the
shooters that this was the official uniform of the police, whereas
the National Instruction requires members to be dressed
in field
dress or the prescribed cover-alls (rather than civilian clothing)
in order to display uniformity and professionalism.
Section
8 (8) of the ROGA further provides that no person shall at any
gathering or demonstration wear any form of apparel that
resembles
any of the uniforms worn by members of the security forces,
including the Police and the South African Defence Force.
[18]
See
Mabaso
v Felix
[1981] 2 All SA 306
(A).  On behalf of the defendant it was
contended instead that the plaintiff bore the onus to establish all
the elements
of her claim and to advance a justification in terms of
section 49 of the CPA in respect of any shootings which occurred or
might
be found by this court to have occurred within the context of
the “unlawful Bathurst riots” of 29 January 2021.

This cannot however be a correct supposition.  Even if the
defendant has pleaded conditionally, by implication it is suggested

that the shooting happened in circumstance where grounds postulated
by section 49 of the CPA were present.  This kind of
detail
justifying or excusing the application of deadly force is peculiarly
within the defendant’s own knowledge and not
the plaintiffs.
Only the police purporting to arrest the plaintiff, if they were,
can answer why they employed the degree of
force in question. The
same would in my view apply in a situation where the police have
invoked the power to harm under section
9 (2) of the ROGA. Both
justification measures present “special defences” in the
sense of being a confession and
avoidance of the plaintiff’s
claim in which scenarios the onus of proving the avoidance rests
upon the defendant.
[19]
The defendant should certainly be able to assert that its maintained
records are authentic and ought to carry weight at least
in the
sense of what they purport to be.
The
National Instruction obliges the POPU to record incidents and store
information on the Incident Registration Information System

(“IRIS”).  Paragraph 4 (2) of the National
Instruction provides for Information Management as follows: “In

order to achieve the above, every POP commander must ensure that
information is managed effectively. This includes acquiring
and
capturing all relevant tactical and operational information on the
functions of POP, as well as on all
public
order
incidents, events or operations and ensuring a constant flow of
accurate information on the incident, event or operation. This

includes the planning of operations, coordination of information and
reporting of preview information to the national office.
The
relevant Information Management manual and related directives and
instructions must be adhered to.”  Paragraph
4 (3)
provides that: “Every POP commander must ensure that all
notices in respect of his or her area of responsibility
is captured
within one hour after becoming aware thereof and monitor all
information registered on IRIS to ensure data integrity.
All units
must at least have one person per shift who register incidents on
IRIS and at least one IRIS controller per unit to
monitor data
integrity on IRIS.” Paragraph 17 also provides for the extent
of reporting that is required to be maintained
during an operation
and afterwards, and in ensuing
sequalae
(see paragraph 18) such as for example when dockets pertaining to
investigations are opened, reports are made to the Independent

Police Investigative Directorate where force has in fact been used
to disperse crowds, and where criminal charges are laid. Even

subsequent debriefing sessions have to be recorded in terms of
paragraph 19.  A video camera operator especially trained
and
designed to record incidents of crowd management is also required to
be on hand and to monitor events with video based footage
especially
focussed on the threats that have been recognized in the assessments
of each situation.
[20]
In the JOC occurrence register, serial number. 40, an entry relevant
to events at 12h19, records that Warrant Officer Abrahams
fired
three live rounds of ammunition in the ground.  It matters not
that the officer is from the South African Police Service
as opposed
to POPU.  The significance is that live ammunition was fired
during the course of the crowd management operation
under the
command of the POPU whereas it is not approved of in terms of the
National Instruction amongst ROGA’s offensive
measures to be
employed.
[21]
[2006]
JOL 16933 (SE).
[22]
[
2003]
JOL 11382 (Tk).
[23]
In
a rule 37 minute that preceded the filing of the amended plea the
plaintiff had sought certain admissions, namely, that she
had been
struck with a rubber projectile in the left lower leg and with live
ammunition/projectile in the lower right leg; that
she had been
admitted to the Port Alfred Hospital where she received treatment
for the wounds; that she had suffered the injuries
set out in the
medical records and photographs that had been discovered and
provided to the defendant; that at the time (the
minute is dated 22
April 2021) the rubber bullet was still lodged in her lower left
leg; and that on 1 April 2019 the plaintiff
had undergone a
procedure by Dr. Sauli at the hospital for the removal of four X
foreign objects from her right lower leg which
were removed and
handed to a member of the South African Police Services by the name
of Sikoko. The defendant’s response
recorded in the minute is
as follows: “The plaintiff is referred to the defendant’s
Plea wherein she is put to the
proof of these specific issues.”
These questions and the response provided preceded the filing by the
defendant of
his amended plea which, by necessary implication,
opened the door for admissions to be made where these were properly
warranted.
[24]
See Uniform Rule 37 (9)(a)(i) and (ii) which empowers a court to
grant a punitive costs order where such an attempt is not made.

Albeit in the context of a review application the Supreme Court of
Appeal in
Paul
Anthony Kalil N.O & Others v Mangaung Metropolitan Municipality
& Others
[2014] 3 All SA 291
(SCA) at para [30] - [34) remarked upon the
obligation of state officials not to frustrate the enforcement by
courts of constitutional
rights.  The court expressed its
disapproval of the unnecessary resort by officials in opposing
applications to raising
of bald denials without advancing facts to
justify these.  The court remarked that the manner in which the
municipality
in that instance had presented its case fell to be
deprecated and fell far short of what was expected from an organ of
state,
the legality of whose actions was in dispute.  In the
present context, where it was accepted that the plaintiff was
injured
during the course of a ROGA operation, it seemed wholly
inappropriate to have her prove it in the absence of any unique
circumstances
to have denied such a fact.
[25]
I
do not accept without expert testimony, ballistic or medical, what
was extracted from the plaintiff’s body but I cannot
ignore
the objective noting of her treatment received at the hospital in
the ROGA and National Instruction compilation of official

documentation referencing the crowd management incident, neither the
plaintiff’s own unique experience of the impact of
the
injuries to her.
[26]
So
as to respect her dignity rather than showing her wounds in court
which were under the plaintiff’s stockings and dress,
counsel
for the parties agreed that photographs be discreetly taken and
produced in court as a record thereof.
[27]
The
concept of “toyi-toying” seemed to have been bandied
about in the trial as a euphemism for unlawful protest action
which
it is by no means
per
se
is.  See sections 8 (5) and (6) of the ROGA concerning the
unique circumstances where the singing may tend toward criminal

conduct.
[28]
The
parties entered into evidence by agreement a series of
correspondence between their representatives concerning the possible

obtaining of the shells supposedly recovered by agents for the
plaintiff at the scene (depicted in the photographs in Exhibit
A)
for ballistic testing.  The State Attorney asked that these be
made available but the response elicited is that the “bullet”

was not in the plaintiff’s attorney’s possession and
later that despite “thorough investigation” from
her
attorneys’ side, the cartridge cases could not be found.
[29]
Her
evidence in this respect was vague.  She may have been warned
under the provisions of the ROGA, or perhaps there was
an interdict
in place.  It was however not taken further because, so I
assume, the focus was on the plaintiff’s claim.
[30]
Exhibit
“A”.
[31]
One
of the main thrusts of the defendant’s defence was that the
plaintiff was steeped in the protest action and that this

observation, together with the next record (in paragraph 72)
provided corroboration of that so to speak.  It was also

suggested that the last note showed her up to be an untrustworthy
witness because it gives the impression that she told someone
that
she was shot in her own home after having placed herself in the
Zweni homestead at the time. The plaintiff denied either
assertion.
Despite the promise of the testimony of the ambulance personnel to
come that she was the source of the information
and was very much
conscious at the time (contrary to other medical records and oral
evidence) they were not called to testify.
[32]
As
stated elsewhere it was unnecessary to follow the ballistic theme
contended for.
[33]
See
Exhibit D at pages 11-12.
[34]
See
definition outlined in footnote 12 above.
[35]
The
official nature of the operation can hardly be gainsaid.
[36]
One
would also have expected such a focus in the defendant’s case
given his reliance on the provisions of section 49 of
the CPA.
[37]
This
is a reference to the police bundle, exhibit D.
[38]
Mr
Olivier prevailed upon this court to find that this supported the
probability that live ammunition was used but it is unnecessary
in
my view to make such a definitive finding.
[39]
The
different levels of threat are outlined in paragraph 9(3) of the
National Instruction.
[40]
Paragraph 10 (3) of the National Instruction, which assumes the
appointment of an overall commander designated by the provincial

commissioner or the divisional commissioner: ORS in level 3
incidents as provided for in sub-paragraph 10 (2), is in “overall

command” of the specific operation for which he is designated
and is responsible for
all
actions taken, and for all persons and resources deployed to manage
that particular operation.  In terms of paragraph 13(1)
(d) the
operational commander
remains
in command
of the operation and takes all tactical and operational decisions.
[41]
Paragraph
13 (1) (f) of the National Instruction does suggest that a member of
any other agency, discipline, unit or station may
not be permitted
to perform duties in the same section, platoon, company, or group
with POP members (unless the officers have
trained with the POP
members and are able to function together with them as a cohesive
unit).
[42]
This
is ironically the most significant moment concerning which the
defendant was to give an account for.
[43]
This
date is wrong, but nothing turns on the mistake.  It is
ultimately common cause that the injury was sustained at the
scene
on 29 January 2019.
[44]
This appears to be in keeping with paragraph 18 of the National
Instruction that requires dockets to be opened where force has
been
used to disperse crowds.
[45]
Paragraph
18 (2) of the National Instruction requires that the Independent
Police Investigative Directorate (“IPID”)
must be
notified in cases where force has been used to disperse crowds.
[46]
“JOC” in terms of the National Instruction means the
joint operation centre that is activated at the scene of an
incident
or event.
[47]
If this suspect was intended to be a reference to the plaintiff this
was not clarified in evidence.
[48]
In
Carmichelle
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
CC at 970 F – G the court noted that where factual
situations are complex and the legal position uncertain, the
interests
of justice will better be served by the exercise that the
trial judge has to refuse absolution.  See also in this regard
the approach adopted by the Supreme Court of Appeal in Nandi Jacobs
v Minister of Justice & Correctional Services (431/2020)
[2021]
ZASCA 151
(27 October 2021).