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[2023] ZAECMHC 10
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Nomnganga v Minister of Police , RSA (2981/2019) [2023] ZAECMHC 10 (14 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
REPORTABLE
Case
No: 2981/2019
Date
Heard: 17/08/2022
18/08/2022
20/01/2023
Date
Delivered: 14/03/2023
In
the matter between:
SIYANDA
NOMNGANGA PLAINTIFF
and
MINISTER
OF POLICE,
RSA DEFENDANT
JUDGMENT
Notyesi
AJ
Introduction
[1]
The plaintiff instituted an action for damages against the defendant
arising
from a shooting incident in which he was injured. In his
particulars of claim, the plaintiff alleged that on 2 October 2018,
he
was walking in the street near the taxi rank at Bizana, when he
was wrongfully and intentionally shot by a member of the
South African
Police Service, whilst acting within the course
and scope of his employment with the defendant.
[2]
The defendant admitted the shooting of the plaintiff, however,
alleged
that the shooting was justified in that the police officer
was acting in self-defence. In the plea, the defendant alleged that
the plaintiff had pointed a firearm at the police officer and that
despite a warning to drop that firearm, he failed to do so.
Consequently, the defendant contended that, on account of the
plaintiff’s failure to drop the firearm, the police official
grounded a reasonable belief that he was in physical danger and that
he was entitled to shoot the plaintiff to obviate the imminent
threat
of danger as presented by the plaintiff. The defendant had submitted
that the officer shot the plaintiff in his leg to immobilize
or
disarm him.
[3]
Prior to the commencement of the proceedings, the issues of quantum
and
liability were separated by agreement between the parties. The
matter proceeded before this Court on the issue of liability only.
During the pre-trial procedures, the defendant had accepted that he
bore the onus to justify the shooting and that he had the duty
to
begin.
[4]
Therefore, on the pleadings, the issues for determination on
liability
are:
(a)
The lawfulness of the shooting of the plaintiff; and
(b)
The appropriate award of costs.
The
evidence
[5]
During trial proceedings, the defendant adduced the evidence of a
single
witness, Sgt Sikhumbuzo Mantusi. Briefly, Sgt Mantusi
testified that he is a member of the South African Police Service
stationed
at Bizana. He joined the police service on 9 July 2007. He
had received training as a police officer at the Bhisho training
academy.
During the course of his training as a police officer, he
was taught and skilled on the use of firearms. His training was for a
period of six months and whereafter he was deployed to the Bizana
police station.
[6]
According to Sgt Mantusi, on 2 October 2018, he had reported for duty
and he was dressed in full police uniform. At approximately 11h00 and
12h00, he joined other members who were doing patrol duties
around
Bizana. The members he joined were Sgt Ndunge, Sgt Jojo Kwazela and
Const Guqaza. They were four police officers in number.
In performing
their patrol, they were travelling in a double cab Nissan bakkie with
police markings. Const Guqaza was the driver.
[7]
In the course of their patrol, Sgt Jojo Kwazela received a phone call
from the station. It was reported that there were gun shots heard
near the post office. In response, they rushed to the direction
of
the post office. As they were approaching the post office, they
observed movement of persons in the vicinity which was indicative
of
panic, suggesting that something was amiss around the area.
[8]
Const Guqaza stopped the vehicle. He then approached a man who was
selling
shoes next to the post office. He made enquiries from this
man about the alleged shooting. The man informed Const Guqaza, in
their
presence, that there was a shooting in the area. That man who
had been approached by Const Guqaza informed them that the persons
who were shooting had run to the direction of Rhino stores which was
on their left hand side. The man also indicated that two of
the men
who were shooting, were carrying sport bags. Without further delay,
they gave a chase in that direction. On their way,
they again met
another man. They enquired from this man whether he had seen the
persons who were shooting. This man directed them
to the taxi rank by
way of gestures as he did not speak. They then took the direction of
the taxi rank.
[9]
When they were passing the office of Border Taxi Alliance, they
noticed
boys who were near the taxi rank and they were about to reach
the open field where trucks usually park. He noticed that two of the
boys had firearms, which were pistols. Const Guqaza stopped their
vehicle and Sgt Mantusi was the first to alight from the vehicle.
He
was carrying an R5 rifle. They followed the boys in the direction of
Browns Cash & Carry and Mafumbatha stadium.
[10]
When the boys noticed that they were being followed by the police,
they started shooting
at the police. Sgt Mantusi and Const Guqaza
returned fire. The boys jumped over the fence and entered into the
Mafumbatha stadium.
Const Guqaza followed them and entered the
stadium. The boys were firing shots and Const Guqaza was returning
fire. Sgt Mantusi
did not enter into the stadium. Some of the boys
came out of the stadium, although some remained inside the stadium.
The firing
of shots was ongoing inside the stadium. One of the boys
jumped out of the stadium on the side of Sgt Mantusi. He was shot by
another
person who had appeared within that vicinity. Sgt Mantusi
witnessed that incident of shooting. The person who shot the boy who
had just jumped out of the stadium ran away and proceeded to the taxi
rank. He coalesced with the crowd that had been curiously
observing
the episode of gun shots.
[11]
Sgt Mantusi decided to follow this person as he had disappeared into
the crowd. He had
no details about the person, although he was hoping
to find him. There were many vehicles which were parked at or near
the taxi
rank. As Sgt Mantusi was tracking down the person who had
joined the crowd, he noticed a person, although he could not confirm
whether it was the same person whom he was tracking down. The person
he noticed at this stage, was carrying two firearms. He held
one
firearm with his left hand and the other with his right hand. The
firearm in his right hand was pointed at the direction of
Sgt
Mantusi. The firearm in his left hand, was pointed down.
[12]
Sgt Mantusi ordered this person to put the firearms down. He shouted
twice to the person,
ordering him to put the firearms down. The
person ignored Sgt Mantusi and did not heed the order. Sgt Mantusi
then shot him in
his right leg with the R5 rifle. As a result of that
shooting, the person fell down. According to Sgt Mantusi, he had shot
this
person in his leg in order to disarm him. Sgt Mantusi stated
that he had felt that his life was at risk.
[13]
After the person was shot, Sgt Kwazela Jojo appeared on the scene.
She took possession
of the two firearms. Sgt Mantusi asked the shot
person about his personal details. In response, the person gave his
details as
Siyanda Nomnganga (the plaintiff herein) and that he was
from Nomlacu village, Bizana. When this person was asked about the
reason
why he failed to put the firearms down on instructions of Sgt
Mantusi, he offered no response. Sgt Mantusi asked the plaintiff
about possession of the firearms and he failed to offer any response.
He then warned him that he was under arrest for possession
of
firearms without a licence. He advised the plaintiff about his
Constitutional rights as an accused person. Sgt Mantusi did not
take
the plaintiff into custody, because he was injured and needed medical
attention.
[14]
Sgt Mantusi warned the plaintiff and allowed him to be taken to the
hospital for treatment.
He was taken by ambulance to St Patrick’s
Hospital in Bizana. Sgt Mantusi made a statement in connection with
the incident.
According to Sgt Mantusi, the station commander,
Lieutenant Colonel Fremantle, was also at the scene and there were
members of
the Local Criminal Record Centre.
[15]
Sgt Mantusi left the scene and returned to the police station, where
he continued with
the arresting procedures. He entered the name of
the plaintiff to the SAP 14 register. He recorded the particulars of
the plaintiff,
although the plaintiff was not physically at the
police station. Sgt Mantusi also recorded the particulars of the
charge and the
docket was transferred to the Crime Investigation
Detective section.
[16]
Sgt Mantusi was cross-examined and he contradicted himself during
cross examination.
Although in his evidence in chief, he had
suggested that he shot the plaintiff when they were facing each
other, during cross-examination,
he suggested that the plaintiff was
moving and that he might have changed his stance. He suggested that
he too was moving towards
his right. The positioning of the plaintiff
and Sgt Mantusi was not apparent as Sgt Mantusi gave conflicting
versions. On
the reasons why Sgt Mantusi shot the plaintiff, he gave
three versions; first he suggested that he wanted to disarm the
plaintiff;
secondly, he suggested that he wanted the plaintiff to
lose concentration; and thirdly, he suggested that he wanted to take
him
off balance.
[17]
Sgt Mantusi testified about his life being at risk pursuant to a
leading question by his
counsel. In this regard, I quote from the
record:
‘
Mr Ngadlela:
Just before you proceed, why did you shoot him in his right leg?
Mr Mantusi:
The reason I shot him, M’Lord, on his leg is that I wanted to
disarm him.
Mr Ngadlela:
Yes, proceed.
Mr Mantusi:
Now as he had fallen down along with the firearms, M’Lord, then
Jojo Kwazela appeared
on the scene.
Mr Ngadlela:
At that time was your life in danger
?
Mr Mantusi:
That is correct, M’Lord, my life was at risk, because the
person had pointed a firearm
at me.’
[18]
Sgt Mantusi was also cross examined about his statement made
subsequent to the incident.
Mr
Mgidlana
, counsel for the
plaintiff, pointed out some inconsistencies between the written
statement and the evidence in chief. It was further
put to
Sgt Mantusi that there was a witness, Mr Mzomba, who had
witnessed the incident of shooting, and according to that
witness,
the plaintiff never pointed a firearm at the police officer. It was
put to Sgt Mantusi that he shot the plaintiff by mistake
and that he
had confirmed to the station commander, Mr Fremantle (Freeze), that
he shot the plaintiff by mistake. It was further
put to Sgt Mantusi
that the plaintiff was taken to the hospital by a private vehicle and
that he was never arrested.
[19]
The defendant’s case was concluded subsequent to the
cross-examination of Sgt Mantusi
and the defendant tendered no
further evidence.
[20]
Two witnesses testified in support of the plaintiff’s case. The
first witness was
the plaintiff, Mr Siyanda Nomnganga and the second
witness was Maxwell Mzomba. In brief, the plaintiff’s testimony
was that
he was 35 years of age and a resident of Nomlacu
Administrative Area, Bizana. He was also a taxi conductor at the time
of the incident.
He further testified that on 2 October 2018, he was
shot by Sgt Mantusi of Bizana Police Station.
[21]
On this day, the plaintiff was in the taxi rank of Bizana when he
heard gun shots at the
playing ground, which is near the taxi rank.
According to the plaintiff, there were thugs who were shooting at
each other at the
playing ground. One of the thugs came out of the
playing ground and he was shot by another member of the thugs and he
fell in front
of a truck. The plaintiff, at that stage, also noticed
that members of the police forum were also within the vicinity. The
thug
that had been shot, had firearms which had fallen down with him
in front of the truck. The firearms which were in possession of
the
thug that had been shot were two.
[22]
When the plaintiff saw the two firearms and the fallen person, he
called a member of the
police forum, Mr Maxwell Mzomba. He drew his
attention to the fallen person and the two firearms which were left
lying on the ground.
He requested that they should take the two
firearms to the police, because they were exposed. Maxwell Mzomba, a
member of the police
forum, instructed the plaintiff to take
possession of the firearms so that they could be sent to the police.
The police were not
too far from them at the time. He took the
firearms and held both firearms with his left hand by hooking his
fingers through the
trigger guard of each firearm. They then moved in
the direction of where the police were standing. As the plaintiff was
moving
in the direction of the police, he heard noise behind him and
when he turned his back, he felt a bullet enter his right leg.
[23]
After he was shot, he then saw a person standing on his right hand
side. Maxwell Mzomba,
who was in the company of the plaintiff,
confronted the person that shot the plaintiff. He asked why he shot
the plaintiff. Maxwell
Mzomba knew the names of the person as
Sikhumbuzo Mantusi. According to the plaintiff, there was no reply
from Sikhumbuzo, save
that he was under the impression that this was
one of the thugs that were shooting on that day.
[24]
The station commander, Mr Fremantle (Freeze), arrived at the scene of
the plaintiff’s
shooting. Upon his arrival, he asked if the
plaintiff was one of the thugs. Sgt Mantusi replied that he had
shot the wrong
person. Freeze (the station commander) was not pleased
with the action of Sgt Mantusi and he threw out his hands and left.
The
plaintiff was taken to hospital by Mr Shona, who was working at
the hospital. He was taken to hospital in a private motor vehicle.
According to the plaintiff, he was never arrested by the police. He
was taken to St Patrick’s Hospital and later transferred
to
Mthatha Hospital. He remained in hospital from 2 October 2018 until 7
December 2018, when he was discharged. He was admitted
to St Patricks
Hospital and Mthatha.
[25]
The plaintiff was cross-examined. During cross-examination, the
plaintiff was squeezed
by
Mr Ngadlela
, counsel for the
defendant, on his decision to become involved in a risky situation
where there was shooting. The response of the
plaintiff on this
criticism, was that there were many other persons who had gone to
observe the shooting. According to the plaintiff,
even the members of
the police forum had gone to the area of the shooting. One of the
police forum members was Maxwell Mzomba.
According to the plaintiff,
there was a crowd within the vicinity of the shooting. The plaintiff
disputed that Sgt Mantusi had
given him a warning and an order to
drop the firearms and also denied that he refused to drop the
firearms. The plaintiff denied
that he pointed a firearm to Sgt
Mantusi.
[26]
The plaintiff confirmed, during cross-examination, that he knew Sgt
Mantusi because they
had worked together at the Bizana taxi rank
prior to him becoming a police officer. The plaintiff further
explained that when he
was shot, he did not see Sgt Mantusi for
the reason that he was behind him at the time of shooting, though, he
later identified
him as the person who had shot him. The plaintiff
maintained his version during cross examination.
[27]
The next witness for the plaintiff was Maxwell Mzomba. He testified
that he was 45 years
old. During the time of the incident, he was
working as a rank manager and appointed as a member of the police
forum. He confirmed
that he knew the plaintiff and that he was also
working at the taxi rank as a conductor. According to Mr Mzomba, on 2
October 2018,
he was walking along with the plaintiff. The plaintiff
saw two firearms that were laying on the ground. The plaintiff was
concerned
that the firearms could be picked up by wrong persons and
used for the commission of crimes. The plaintiff suggested that the
firearms
should be taken to the police that were within the vicinity
as there was a shooting that had taken place earlier near the taxi
rank.
[28]
He then asked the plaintiff to pick up the firearms so that they
could take them and hand
over to the police. There were police
within the area, not far from them. The plaintiff picked up the two
firearms and held
them with his left index finger. The plaintiff held
the firearms by the trigger guards with his index left finger. As
they were
moving in the direction of the police, the plaintiff was
shot by Sgt Sikhumbuzo Mantusi. He confronted Sgt Mantusi about the
shooting
and also attended to the plaintiff. The station commander
also arrived at the scene. On his arrival, the station commander made
enquiries from Sgt Mantusi about whether the plaintiff was one of the
persons who were shooting in the area. In his response, Sgt Mantusi,
confessed to have shot a wrong person. Sgt Mantusi confirmed that the
plaintiff was not one of the persons who were firing shots
in the
area. Subsequent thereto, the plaintiff was taken to the hospital by
a private vehicle.
[29]
During cross-examination, Mr Mzomba denied that the plaintiff had
pointed a firearm at
Sgt Mantusi. He further denied that Sgt Mantusi
had twice warned the plaintiff to drop the firearms down. He further
confirmed
that he knew Sgt Mantusi for the reasons that they had
worked together at the taxi rank and that they would attend police
forum
meetings together.
[30]
That concluded the evidence tendered on behalf of the plaintiff.
Common
cause facts
[31]
On the total conspectus of evidence, these facts are common cause:
(a)
On 2 October 2018, the plaintiff was shot by Sgt Mantusi;
(b)
Earlier on that day, there was a shooting at the Mafumbatha stadium
and near the taxi rank;
(c)
The shooting was between two groups of boys (thugs) who were fighting
each other;
(d)
The police had intervened in that shooting to restore law and order;
(e)
During the incident, shots were also fired at the police;
(f)
There was a member of the boys (thug) that was shot as he jumped out
of the stadium
and he was shot by an unknown person, presumably a
member of the other gang;
(g)
When this man was shot, two firearms fell on the ground with him; and
(h)
The plaintiff picked up the firearm upon the directions of Mr Mzomba,
a member of the police
forum.
[32]
The facts summarised below are in dispute:
(i)
That the plaintiff had pointed a firearm to Sgt Mantusi;
(ii)
That the plaintiff was holding the firearms with his left index
finger through the
trigger guard;
(iii)
That Sgt Mantusi admitted to have shot the plaintiff by mistake;
(iv)
That the plaintiff was arrested by Sgt Mantusi and warned;
(v)
The positioning of Sgt Mantusi when he shot the plaintiff, it is not
clear whether
they were facing each other or Sgt Mantusi was moving
on the side of the plaintiff;
(vi)
Whether the plaintiff was arrested by Sgt Mantusi after being shot
and charged for possession
of firearms; and
(vii)
Whether the plaintiff was taken to hospital by a private vehicle or
an ambulance.
The
issue
[33]
In order to resolve the main issue before Court regarding lawfulness
of the shooting of
the plaintiff, the Court must consider the
disputed question on whether Sgt Mantusi was pointed with a
firearm by the plaintiff
and whether Sgt Mantusi’s life was in
danger. For reasons that shall become apparent later, before
grappling with the resolution
of the disputed issues, it is
appropriate to first set out the applicable legal principles.
The
legal principles
[34]
Where the
defendant, in an action against him, as is the case here, has pleaded
self-defence, the onus is generally upon him to
plead and prove that
the force used in defending himself was in the circumstances
reasonable and commensurate with the plaintiff’s
alleged
aggression.
[1]
Mr
Ngadlela
,
counsel for the defendant, correctly conceded this trite legal
position. The test for determining self defence is objective,
that is, whether a reasonable person in the position of the defendant
would have considered that there was a real risk that death
or
serious injury was imminent.
[2]
[35]
In
Zandisile
Ntsomi v The Minister of Law & Order
,
[3]
Kumleben JA quoted from the case of
Ntanjana
v Vorster and Minister of Justice
[4]
1950 (4) SA 398
(C) 406 A-D and outlined the principles as follows:
‘
The very
objectivity of the test, however, demands that when the Court comes
to decide whether there was a necessity to act in self-defence
it
must place itself in the position of the person claiming to have
acted in self-defence and consider all the surrounding factors
operating on his mind at the time he acted. The Court must be careful
to avoid the role of the armchair critic wise after the event,
weighing the matter in the secluded security of the courtroom. . . .
Furthermore, in judging the matter it must be ever present
to the
mind of the judge that, at any rate in the particular circumstances
of this case, the person claiming to act in self-defence
does so in
an emergency, the creation of which is the work of the person
unlawfully attacking. The self-defender is accordingly
entitled to
have extended to him that degree of indulgence usually accorded by
the law when judging the conduct of a person acting
in a situation of
imminent peril. ‘Men faced in moments of crisis with a choice
of alternatives are not to be judged as if
they had had both time and
opportunity to weigh the pros and cons’
per
Innes, JA in
Union Government v Buur
(1914, AD 273
at p 286).’
[36]
In
Ntamo
& Others v Minister of Safety & Security
[5]
it was
stated that where the threatened harm can be avoided without the use
of force, self-defence cannot succeed. When force is
necessary to
neutralise the threat of harm, the force must not be more than is
reasonable to achieve that purpose.
[37]
The courts
have repeatedly emphasized that where there are safe methods to
thwart the aggression, the police should offer such methods
and avoid
hurting the aggressor.
[6]
The
police should approach a suspect with professionalism, proper
planning and without bungling. The community expects police to
exercise professionalism as to guarantee the safety of the members of
the public whilst at the same time taking care not unnecessarily
to
take the life of the aggressor. The
boni
mores
of society or the legal convictions of the community dictate that
this should be the position. Conduct found wanting is wrongful.
[7]
Many factors need to be considered by the court to determine whether
the force used by a police officer was proportionate to the
aggression confronting the officer.
[38]
Reverting to the present case, should the Court accept the
defendant’s version that
Sgt Mantusi was pointed with a firearm
in circumstances where there was a shooting incident and that a
person had just been killed
in front of him, then it is evident that
the conduct of the police would have satisfied each of these
requirements set out above
to justify his action. However, the
problems in accepting the version of Sgt Mantusi are inter alia
the following, aside from
the issues of credibility:
(a)
The fact that the plaintiff was not arrested for possession of
firearms;
(b)
The fact that the station commander, Mr Fremantle, was not called to
refute the allegation
that Sgt Mantusi had confessed that he wrongly
shot the plaintiff;
(c)
The failure to call Sgt Jojo, who had picked up the firearms after
the plaintiff was
shot to corroborate Sgt Mantusi’s version
that he was pointed at with a firearm when he decided to shoot the
plaintiff; and
(d)
In my view, the evidence of Sgt Jojo and Commander Fremantle, was
crucial to the defendant’s
case, particularly, that the
plaintiff had called a witness, Mr Mzomba, to corroborate his
evidence.
Adverse
inferences
[39]
Whether or not a party should call a witness is inherently
problematic as the Court is
not in a position to know all the reasons
why a witness is not called as the Court is not privy to the
relationship between the
party and the witness.
[40]
The full
bench of the Eastern Cape division in the case of
Minister
of Safety & Security v Zoyisile Stanley Ntopane NO
[8]
Greenland AJ held:
‘
[i]
. . . so each case must be judged on its own merits and the Court
should only
drawn an adverse inference if it is safe to do so. See
Webronchek v LK Jacobs 1 co Ltd
1948 (4) SA 671
(A). In that
case, Van der Heever JA set out that:
“
moreover a
litigant who calls witness vouches, as it were, on pain of being
discredited himself, for his probity and truthfulness.
The potential
witness may be untruthfully, hostile, he may have a bad memory of an
unfortunate presence. After all the Plaintiff
was entitled to rest
his case upon evidence which he considered adequate to discharge the
onus which lay upon him.”
[ii]
See also
Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A), the principle was laid down as follows:
“
where a party
fails to call as his witness as one who is available and able to
elucidate the facts, whether the inferences that
the party failed to
call such a witness because he feared that such evidence would expose
facts unfavourable to him should be drawn
would depend on the facts
peculiar to the case where the question arises.”
[iii]
In the case of
Just Names Properties II CC & Another v Fourie
& Others
2007 (3) SA 1
(W) Jajbhay J, mindful of
Webranchek
v LK Jacobs
supra, however concluded –
“
In the present
matter I am not persuaded that an inference against the Defendant
should not be drawn from the fact that they did
not call Oosthuizen
as a witness. There were many issues that called out for her
testimony. This was not forthcoming. I was not
informed as to what
the reasons for her non-appearance was. Strictly speaking, I am not
entitled to an explanation, however, at
the end of the day, I must
draw certain reasonable inferences from such a decision . . .”’
[41]
Sgt Mantusi had testified that they were four police officials who
attended to the shooting.
He further testified that when the
plaintiff was shot, the two firearms were picked up by Const Jojo. I
have no doubt in my mind
that Const Jojo was within the vicinity when
the plaintiff was shot by Sgt Mantusi. Also, it was repeatedly put to
Sgt Mantusi
that when he was confronted by the station commander
on the shooting of the plaintiff, the response of Sgt Mantusi was
that he
shot the plaintiff by mistake or that he shot the wrong
person.
[42]
In these circumstances, there can be no acceptable reason as to why
the station commander
and Const Jojo or other police officials who
had knowledge of the case, could not have been called. The inference
to be drawn is
that none could support the claim of a warning to the
plaintiff and an order for the plaintiff to drop the firearms. The
other
inference is that Lt Col Fremantle, the station commander,
would support the plaintiff’s version that Sgt Mantusi
confirmed
that he wrongly or mistakenly shot the plaintiff.
[43]
The next question for determination is the two mutual conflicting
versions regarding the
shooting of the plaintiff by Sgt Mantusi. Sgt
Mantusi had alleged that at the time he shot and injured the
plaintiff, he was pointed
at with a gun by the plaintiff. On the one
hand, the plaintiff avers that he was just walking towards the
direction of the police
carrying the firearms with his left index
finger. He disputed that he pointed the firearm at Sgt Mantusi. In
order to resolve the
disputed facts, this Court is required to do an
analysis of the evidence.
Analysis
of evidence
[44]
The parties, on the central issue regarding the circumstances of
shooting, have adduced
conflicting versions. The defendant maintains
that Sgt Mantusi had acted in self-defence in circumstances where he
found his life
in danger on the account of him being pointed with a
firearm. Both the plaintiff and his witness have denied that
Sgt Mantusi
was pointed at with a firearm by the plaintiff.
[45]
In these given circumstances, the Court must evaluate and decide on
the credibility of
witnesses. It must determine whether the
probabilities favour one or the other version, and must decide what
evidence is acceptable
and why.
[46]
In
National
Employers’ Mutual General Insurance Association v Gany
,
[9]
it was stated:
‘
Where there are
two stories mutually destructive, before the onus is discharged, the
court must be satisfied that the story of the
litigant upon whom the
onus rests is true and the other is false’.
[47]
In
Stellenbosch
Farmers’ Winery Group Limited and Another v Martell CIE and
Others
[10]
it was held:
‘
On the central
issue, as to what the parties actually decided, there are two
irreconcilable versions. So, too, on a number of peripheral
areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving factual
disputes of this
nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to
(a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness;
candour and demeanour in the
witness box; (ii) his bias, latent and blatant; (iii) internal
contradictions in his evidence; (iv)
external contradictions with
what was pleaded or put on his behalf; or with established fact or
with his own extracurial statements
or actions; (v) the probability
or improbability of particular aspects of his version; (vi) the
calibre and cogency or his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness’ reliability will
depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe
the event in question and (ii) the
quality, integrity and independence of his recall thereof. As to (c),
this necessitates an analysis
and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of
its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened with
the onus of
proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility
findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors are
equipoised probabilities prevail.’
[48]
Sgt Mantusi gave contradictory versions regarding his position when
he shot the plaintiff.
He initially suggested that they were facing
each other with the plaintiff pointing the firearm at him. He later
changed his version
and stated that he shot the plaintiff when he was
moving towards his right and away from the vehicle that he had
appeared from
its rear. The evidence of Sgt Mantusi was more
confusing in relation to the circumstances when he shot the
plaintiff.
[49]
Another unsatisfactory feature in Sgt Mantusi’s evidence was
that after shooting
the plaintiff, he informed him that he was under
arrest. However, the subsequent conduct of Sgt Mantusi did not
suggest that the
plaintiff was arrested. The plaintiff was taken by a
private vehicle to the hospital. There were no arrangements with the
police
when the plaintiff was taken to the hospital. I find that the
evidence that the plaintiff was arrested after the shooting, was a
fabrication. In this regard, I am fortified by the actions of Sgt
Mantusi, when he decided to sign an SAP 14 in terms of detaining
the
plaintiff in circumstances where he was not in the police station nor
had been arrested. This was an afterthought to justify
the actions of
Sgt Mantusi.
[50]
Sgt Mantusi only answered to a leading question from his counsel
about the threat to his
life, otherwise, Sgt Mantusi had given
conflicting reasons for shooting the plaintiff. Initially, Sgt
Mantusi had suggested that
he shot the plaintiff to disarm him. He
later testified that he shot the plaintiff because he failed to drop
the firearm upon his
instructions and thirdly, based on a leading
question, Sgt Mantusi suggested that he feared for his life. In this
regard, I quote
from the record verbatim:
‘
Mr Ngadlela:
Just before you proceed, why did you shoot him in his right leg?
Mr Mantusi:
The reason I shot him, M’Lord, on his leg is that I wanted to
disarm him.
Mr Ngadlela:
Yes, proceed.
Mr Mantusi:
Now as he had fallen down along with the firearms, M’Lord, then
Jojo Kwazela appeared
on the scene.
Mr Ngadlela:
At that time was your life in danger?
Mr Mantusi:
That is correct, M’Lord, my life was at risk, because the
person had pointed a firearm
at me.’
[51]
In relation to the question whether Sgt Mantusi was pointed at with a
firearm by the plaintiff,
I was not satisfied with the evidence of
Sgt Mantusi. He contradicted himself in many respects regarding his
position in relation
to the plaintiff. I therefore reject the
evidence of Sgt Mantusi insofar as he suggests that the plaintiff
pointed at him with
a firearm.
[52]
The evidence of the plaintiff was more convincing. He was
corroborated by the evidence
of Mr Maxwell Mzomba. Whilst I agree
with the submission by Mr
Ngadlela
that it was risky for the
plaintiff to pick up a firearm after a person has recently been shot
at and that the scene was not safe,
it does not follow that such
conduct was unlawful or justify the shooting of the plaintiff. The
plaintiff was clear in his evidence
and he did not contradict
himself. He appeared to be an honest witness. The plaintiff’s
evidence was corroborated in every
material aspect. Mr Mzomba too was
a credible witness.
[53]
On the application of the technique set out above, this Court was
impressed with the testimony
of the plaintiff and his witness. The
plaintiff did not exaggerate his case and the further reason that the
Court accepts the plaintiff’s
case is that it is largely
corroborated by his witness. The version of the plaintiff is also
consistent with the behaviour of the
defendants in that whilst a
version was put to Sgt Mantusi that he confessed to the station
commander that he wrongly or mistakenly
shot the plaintiff, the
station commander was not called to deal with such material
allegation. I do accept that Sgt Mantusi did
inform the station
commander in the presence of the plaintiff and his witness that he
shot the plaintiff by mistake or wrongly.
[54]
This Court also does take into account the fact that Sgt Mantusi was
working at the taxi
rank prior to his employment as a police officer.
He knew both the plaintiff and his witness before the date of the
incident. It
is improbable that when he saw the plaintiff holding the
firearms, his conclusion would be that he was to be shot by the
plaintiff.
I find no basis to conclude that the plaintiff pointed a
firearm to Sgt Mantusi.
[55]
The rejection of the defendant’s version in relation to the
pointing of the firearm
by the plaintiff does not end the matter. The
Court must still consider whether the onus has been discharged and
that the defence
of self-defence is established by the defendant.
[56]
In
National
Employers’ General Insurance Company Ltd v Jayers
[11]
Eksteen AJP held:
‘
. . . the onus
can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the onus
rests . . . . where
the onus rest on the Plaintiff . . . and where there are two mutually
destructive stories, he can only succeed
if he satisfies the court on
a preponderance of probabilities that his version is true and
accurate and therefore acceptable and
that the other version advanced
by the Defendant is therefore false or mistaken and falls to be
rejected. In deciding whether that
evidence is true or not the court
will weigh up and test the Plaintiff’s allegations against the
general probabilities. The
estimate of the credibility of a witness
will therefore be extricably bound up with consideration of the
probabilities favours
the Plaintiff then the court will accept his
version as being probably true. If however the probabilities are
evenly balanced in
the sense that they do not favour the Plaintiff’s
case any more than they do the Defendant, the Plaintiff can only
succeed
if the court nevertheless believes him and is satisfied that
his evidence is true and that the Defendants version is false.’
[57]
In a trial, the legal position is that where the probabilities are
evenly balanced, in
that the evidence of the main witnesses on either
side is found to be equally credible or equally incredible, the party
that bears
the onus loses and the determination of the contested
issues is ruled in favour of the party who does not bear the onus.
[58]
I am still in the dark as to what actually caused the shooting of the
plaintiff on the
day in question. It is improbable that the
plaintiff, in the presence of the member of the police forum, would
have pointed a firearm
at a police officer in full uniform, in
circumstances where no motive has been shown. It is equally
improbable that a policeman
would simply commence shooting at the
plaintiff for no apparent reasons. In this regard, both versions
accordingly, seem equally
improbable.
[59]
However, having regard to the findings of the Court regarding the
failure to call Const
Jojo and Lt Col Fremantle, the probabilities
tilt in favour of the plaintiff, more especially, when regard is had
to the evidence
of Mr Mzomba. I have already accepted the plaintiff’s
evidence together with his witness. On the other hand, I was
unimpressed
with Sgt Mantusi.
[60]
Applying the principles of trial, the defendant failed to discharge
the onus resting upon
him on this basis as well since it is the party
bearing the onus.
Costs
[61]
I have not been persuaded differently, the costs relevant to this
stage of proceedings,
should follow the results. The defendant shall
bear costs.
Conclusion
[62]
I am satisfied that the plaintiff has made out a case and I come to
the conclusion that
the defendant has failed to discharge the onus
resting upon him to establish that the shooting of the plaintiff was
justified or
in self-defence.
Order
[63]
In the result the following order is made:
1.
By agreement of the parties, the issues of quantum and liability are
hereby
separated;
2.
The conduct of a member of the defendant to shoot and injure the
plaintiff is
hereby found to be wrongful and unlawful;
3.
The defendant is held liable for any proven damages which had been
suffered and incurred by the plaintiff consequent to the shooting of
the plaintiff on 2 October 2018;
4.
The defendant is directed to pay the plaintiff’s costs insofar
as they
relate to the issue of liability and such costs shall include
reserved costs to the determination of the defendant’s
liability.
_______________________
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for the Plaintiff
:
T
W Mgidlana
Attorneys
for the Plaintiff
:Majali
Gwabeni Incorporated
Mthatha
Counsel
for the Defendant
:
N
D Ngadlela
Attorneys
for the Defendant
:The
State Attorney
Mthatha
[1]
Mabaso
v Felix
1981 (3) SA 865
(A) at 874.
[2]
Mngwena
& Another v Minister of Safety & Security
2006
(4) SA 150
SCA at 158C-D, see also
Lufuzo
Mbangi v Minister of Safety & Security,
unreported
judgment of the Eastern Cape Division, Case No 891/2006 at 30
(‘
Lufuzo
Mbangi
’).
[3]
Ntsomi
v Minister of Law & Order
1990 (1) SA 512
(C) at 528F-G.
[4]
Ntanjana
v Vorster and Minister of Justice
1950
(4) SA 398
(C) 406A-D.
[5]
Ntamo &
Others v Minister of Safety & Security
2001 (1) SA 830
(TKHC) at 836H-J (‘
Ntamo
’).
[6]
Ibid at 837D.
[7]
Above
Lufuzo
Mbangi
fn
2 at 32 and also
Ntamo
at
837I-J and 838 G-H.
[8]
Minister
of Safety & Security v Zoyisile Stanley Ntopane NO
case no: A85/07.
[9]
National
Employers’ Mutual General Insurance Association v Gany
1931
AD 187
at 199.
[10]
Stellenbosch
Farmers’ Winery Group Limited and Another v Martell CIE and
Others
2003
(1) SA 11
(SCA) para 5. See also
SPW
Group Ltd and Another v Martell ETCIE and Others
2002
(1) SA 11
at 14I 15E.
[11]
National
Employers’ General Insurance Co Ltd v Jayers
1984 (4) SA 437
E at 440D-E.