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[2022] ZAMPMBHC 13
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Ndlovu v Minister of Police (65/2018; 180/2018) [2022] ZAMPMBHC 13 (15 March 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT, MBOMBELA)
CASE
NUMBER:
65/2018
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: YES
REVISED:
YES
In
the matter between: -
CHARLES
NDLOVU
Plaintiff
and
MINISTER
OF
POLICE
Defendant
AND
CASE
NUMBER:
180/2018
In
the matter between: -
ZWELAKHE
SIMANGE
NYAMBI
Plaintiff
and
MINISTER
OF
POLICE
Defendant
J
U D G M E N T
DATES OF HEARING:
24, 25, 27 AND 28 JANUARY 2022; 2 AND 3
FEBRUARY 2022 AND 28 FEBRUARY 2022
DATE
OF JUDGMENT: 15 MARCH 2022
SIEBERHAGEN
AJ:
[1]
This
consolidated
[1]
trial, served
before me on the merits only.
[2]
I propose to refer to Mr Charles Ndlovu, the plaintiff in
the action under case number 65/2018, as the first plaintiff
and
Mr Zwelakhe Semange Nyambi, the plaintiff in the action under
case number 180/2018, as the second plaintiff.
[2]
The first
plaintiff claims compensation for damages, having been unlawfully
shot and wounded in his leg, below his right knee on
the 23
rd
of April 2017 by Constable Mavuso, a member of the South
African Police Service (“
SAPS”
),
at his house in Tonga, Malelane District, Mpumalanga. The defendant’s
(the Minister of Police, as cited) defence against
the claim is that
Constable Mavuso shot the first plaintiff in an act of
self-defence, and thereby attracted the onus in respect
of this
claim.
[3]
[3]
The second plaintiff claims on the basis of the
soi-disant
claim for emotional shock as a result of witnessing the shooting of
the first plaintiff, his stepfather, and having directly thereafter
been ordered by a police officer to handcuff the first plaintiff with
cuffs given to him by one of the police officers on the scene.
The
defendant’s defence to the second plaintiff’s claim is,
on the pleadings and from the evidence by the defendant’s
witnesses, a denial.
[4]
This trial, yet again, illustrated the importance of a sound
knowledge
of the substantive law, and the law of evidence and
procedural law as a presupposition thereto. Moreover, the use of
proper, in depth
cross examination where apposite is
undoubtedly of paramount importance. More about that further in this
judgment.
[5]
At the outset, during his opening address on behalf of the
plaintiffs,
I enquired from Adv Lindhout whether he could refer
me to authorities on the so called claim for damages as a result
of emotional shock, whereto he somewhat astonishingly answered that
he “…
had a look …”
, but could not
find any. As it turned out, there is ample authority, some of which
Adv Lindhout referred to in his closing
argument.
THE PLEADINGS
[6]
Although
the pleadings of both the plaintiffs and the defendant leave much to
be desired,
[4]
I shall not
unduly stress the importance of clear and precise pleadings, for the
issues have been fully investigated during the
trial.
[5]
THE EVIDENCE AND THE
FACTS
[7]
The plaintiffs called the witnesses, in sequence,
Mrs Lindiwe Sillinah Nyambi
(the wife of the first
plaintiff), the second plaintiff, and the first plaintiff. The
defendant’s witnesses were Sergeant
Sibiya (F), Constable
Mavuso and Constable Makwakwa, and it is common cause, both on the
pleadings and by agreement between the
parties, that these three
witnesses, on the day of the incident which gave rise to these
claims, 23 April 2017, were
acting within the course and
scope of their employment with the defendant. Except where necessary,
I do not deal with the, respective,
witnesses’ evidence in
detail.
[8]
Adv Lindhout, on behalf of the plaintiffs and Mr Lukhele, on
behalf
of the defendant, traversed the evidence at length and in
detail.
[9]
The plaintiffs’ version, testified to by Mrs Nyambi, the second
plaintiff and the first plaintiff, is: -
[i]
During the evening of 23 April 2017 Mrs Nyambi and the first
plaintiff had, at their
house at Tonga, a severe argument when the
first plaintiff in a drunken rage, because of his excessive drinking
of Black Label
beer, threatened to shoot her and himself.
[ii]
She was concerned for her own safety and that of her children who had
to be put to bed in preparation
for their school attendance on the
following day. She consulted a friend who suggested that she sought
assistance from the social
worker, Ms Nombulelo, who in turn
advised her to seek assistance at the Tonga police station.
Ms Nombulelo drove them
in her red Volkswagen Golf motor vehicle
to the said police station.
[iii]
At the police station she had been immediately assisted by police
officials who, due to the seriousness
of the complaint which they
regarded as a domestic violence issue involving the use of a firearm,
offered to assist by accompanying
her in collecting the children’s
clothes and to move them all to a place of safety. She and
Ms Nombulelo drove back
in Ms Nombulelo’s car to her
house, followed by members of the SAPS in their police vehicle. They
stopped at the front
of her house and Mrs Nyambi, and the police
officials, alighted from the respective vehicles at which stage the
second plaintiff,
her son, was at the front of her house where the
police officers asked him where the first plaintiff was, whereto he
replied that
he was at the back of the house, and led them to the
back of the house. Whilst in the front portion of the house, she
heard two
shots fired in rapid succession from the back of the house,
and the first plaintiff screaming, whereupon she went to the back of
the house where she saw police officials standing next to a window,
the first plaintiff lying on the floor in a back room annexed
to the
house, wounded in his leg. She also saw the second plaintiff in the
back room and one of the male police officials throwing
handcuffs to
him and ordering him to cuff the first plaintiff, which he did. An
ambulance arrived, the first plaintiff was put
on a stretcher and
taken in the ambulance, accompanied by the second plaintiff, to the
Tonga hospital.
[iv]
When she attended to the hospital to see the first plaintiff, she was
instructed by police officials to
attend to the police station to
register a case where a statement was taken from her by female
sergeant Sibiya. As it turned out,
during the trial, it was a point
of contention between the parties whether Sergeant Sibiya took this
statement before the police
officials accompanied Mrs Nyambi to
her house and before the shooting incident occurred or only took this
statement later
on, during the early morning hours of 24 April 2017
at approximately 03:00. Except for the material differences between
the evidence of Mrs Nyambi and Sergeant Sibiya, it is not
necessary to deal with this issue in detail.
[v]
During cross-examination the defendant’s version was put to
Mrs Nyambi, and the upshot thereof
was that she adamantly
claimed never to have stated to the police, when at first assisted by
a Constable Shabangu, that the first
plaintiff pointed a firearm at
her. She only round about 03:00 on 24 April 2017, when
advised to attend to the police
station at Tonga, made the statement
taken by Sergeant Sibiya who, then, noted the time and date of the
deposing to the written
statement as at 22:30 on 23 April 2017.
She was also adamant that the first plaintiff was cuffed, as
described, in the
backroom to her house and, thereafter, she, when
visiting him at the hospital, found him cuffed to the hospital bed.
Understandably,
having been disconcerted by the severity of the situation and
witnessing the first plaintiff lying wounded on the
floor,
Mrs Nyambi’s evidence was not accurate in each and every
detailed respect, but she struck me as a genuinely sincere
person and
witness, and I have no reason to reject her version. I am mindful
thereof that she, and all the other witnesses, testified
almost five
years after the event. I accept her version of the events that led to
the shooting incident and her witnessing of the
cuffing of the first
plaintiff by the second plaintiff acting on the instruction of or at
the request of the police officers.
[10]
The second plaintiff testified that: -
[i]
he resided with his mother, Mrs Nyambi, and the first plaintiff,
his stepfather, in their
“
RDP house”
at Tonga, and
that on the 23
rd
of April 2017 he was sitting at
the steps to the front door of the house when Mrs Nyambi arrived
in a vehicle followed
by a police vehicle wherefrom four police
officials alighted.
[ii]
One of the officials asked him where the first plaintiff was and upon
answering that he was at the
back of the house, the officer requested
him to accompany them and point the first plaintiff out, which he
did.
[iii]
At the back room under construction, consisting of a kitchen, a
passage and a further room, they entered
through the outside doorway,
saw the first plaintiff standing approximately 3.5 metres from
where they were standing, whereafter
the officer on his right side
upon the appearance of the first plaintiff fired two shots in rapid
succession at him with his firearm,
one of the shots hitting him and
causing him to fall to the floor screaming.
[iv]
None of the police officers shouted a warning or communicated with
the first plaintiff before he was shot.
After the shooting of the
first plaintiff, the police officers “…
took
cover against the walls”
. One of the police officers handed
him an open set of handcuffs and instructed him to cuff the first
plaintiff, which he did by
moving towards the first plaintiff and,
when close to him, saying to him to allow him to be cuffed in order
to alleviate the situation.
[v]
He found an old school jersey on the floor with which he dressed the
wound on the first plaintiff’s
leg, whereafter an ambulance
arrived, paramedics carried the first plaintiff on a stretcher to the
ambulance and he, the second
plaintiff, accompanied the first
plaintiff in the ambulance to the Tonga hospital where he opened a
hospital file on behalf of
the first plaintiff.
[vi]
He denies the evidence by the police officers Constable Mavuso and
Constable Makwakwa that: -
[a]
He was not present during the shooting incident;
[b]
They found the backroom by themselves and called for the first
plaintiff;
[c]
The first plaintiff charged Constables Mavuso and Makwakwa with his
right hand raised and holding a
broken bottle with the intent to stab
them with it;
[d]
Constable Mavuso first warned the first plaintiff before shooting
him;
[e]
There was a broken green Amstel Lager beer bottle at the scene or in
the vicinity where the first plaintiff
fell after being shot.
The
distinct impression that I gained from the evidence of the second
plaintiff is that he had not been upset with the request by
the
police officers to handcuff the first plaintiff and that he did so in
order to assist to subdue the first plaintiff as calmly
as possible
and that the first plaintiff, indeed, acquiesced in being cuffed by
him. No convincing evidence was adduced by, or
on behalf of, the
second plaintiff that the witnessing of the shooting of the first
plaintiff and the subsequent order and/or request
to cuff him left
him, the second plaintiff, with an emotional injury to the extent
that it can be found thereon that he suffered
or is suffering from a
detectable psychiatric injury as a result thereof.
[11]
The first plaintiff testified that he could not remember the
incident, as he had been drinking
heavily on the day of the incident,
had an argument with his wife (Mrs Nyambi), got extremely drunk,
and he can only recall
that he first came to his senses when he woke
up in ward 1 of Tonga Hospital realising that he had been cuffed
with his left
leg at the ankle to the hospital bed and that he had a
wound on his leg below the right knee.
[12]
Sergeant Sibiya, on behalf of the defendant, testified that she was
on duty at the SAPS
Criminal Service Centre, Tonga, on 23 April 2017,
where Mrs Nyambi arrived with a complaint that her husband,
Mr Ndlovu
(the first plaintiff) threatened her and, also,
threatened to shoot her with a firearm. She, Sergeant Sibiya, opened
a case docket,
took Mrs Nyambi’s statement, explained to
her the process of obtaining a domestic violence interdict and
arranged with
police officers Constables Sambo, Mavuso, Makwakwa,
Khoza (F) and Singwane (F) to assist Mrs Nyambi to
collect clothing
and her children at Mrs Nyambi’s house
and to take them to a place of safety. She testified that this
process took approximately
two hours from 20:30 until 22:30 on
23 April 2017, the time and date when Mrs Nyambi was
read to and signed her
statement taken by her. When Sergeant Sibiya
was confronted during cross-examination with the times noted on the
official J88 forms
and the hospital records which were completed at
22:22 on 23 April 2017, evidently after the shooting
incident, and that
it would therefore have been impossible to have
taken the statement at 22:30, she was not able to answer to this
apparent improbability
and persisted to state that she noted the
correct time and did not, only, take the statement later on during
the early morning
hours of 24 April 2017.
[13]
It is necessary to interpose, for not dealing with the evidence of
each witness in the
finest detail, to observe that Sergeant Sibiya on
the assessment of her evidence from her demeanour and presentation of
her evidence
presented herself as a strong unshaken witness, but that
her version gets trumped by the contradictions and probabilities when
considered against the matrix of the evidence.
[14]
Constable Mavuso testified that he, Constables Makwakwa and Sambo
were informed on the
23
rd
of April 2017 by Sergeant
Sibiya that Mrs Nyambi laid a complaint involving a firearm and
that they had to accompany
Mrs Nyambi to her home to fetch her
children and clothing in order to take them to a place of safety. He
stated that his intention
with the task was to assist Mrs Nyambi,
as requested, and to arrest Mr Ndlovu, the first plaintiff,
because he as the
result of the opening and registering of a case
docket, had become a suspect. For that reason they escorted
Mrs Nyambi and
Ms Nombulelo, travelling in one of their
police vehicles, to Mrs Nyambi’s house.
[15]
Constable Mavuso further testified that he, Constables Sambo and
Makwakwa upon arrival
at Mrs Nyambi’s house at first
searched the main house, but could not find the first plaintiff in
the house, whereafter
he went around to the back of the house with
his fellow officers. He denied that he encountered the second
plaintiff at the front
of the house or that anyone of them required
him to point out the first plaintiff. He stated that he, Constables
Sambo and Makwakwa
entered the back portion (an annex under
construction) of the house with him leading, followed by Constable
Sambo with Constable
Makwakwa behind Constable Sambo. They found the
first plaintiff lying on his back with his eyes closed and holding a
broken bottle
in his right hand. He called out at the first plaintiff
by the name Charles, which caused the first plaintiff to wake up,
disappear
for a moment behind a canvas sheet, stand up and charge him
and Constable Sambo with the broken bottle in his raised right hand.
He and the other officers tried to flee from the attack, but he was
trapped and only Constable Sambo had been able to flee through
the
doorway and Makwaka managed to escape by jumping through an open
window. Because the first plaintiff did not stop, after he
called out
to him that they were the police, he fired a warning shot at a 45 º
angle into the floor in front of the first
plaintiff, but he still
did not stop, whereafter he attempted to discharge a second warning
shot, still at a 45 º angle
into the floor, but at that
stage the first plaintiff was too close to him, resulting in him
being shot in the right leg below
the knee. He intended the second
shot, also, as a warning shot. It needs to be observed that this
evidence contradicts the defendant’s
plea, in that the shooting
of the first plaintiff in his leg is admitted in the plea as an
action in self-defence. The relevant
portion of the plea reads: -
“
AD
PARAGRAPH 6.1
13.1 Save for
admitting that the member of the Tonga SAPS shot the plaintiff on the
leg with live ammunition, the contents hereof
are denied and the
plaintiff is put to the proof thereof.
13.2 The member shot
the plaintiff on the leg as a means of defending himself from an
imminent attack from the plaintiff.
13.3 The defendant
pleads that its member was justified under the circumstances to fire
a shot at the leg of the plaintiff as a
means of defending himself
from an imminent attack.” (sic)
[16]
He, further, testified that the first plaintiff fell to the floor,
swore at them and screamed
that it would have been better had he been
shot in the head so that he could be dead. It was not necessary to
cuff the incapacitated
first plaintiff. They called for an ambulance,
cordoned off the scene and guarded the first plaintiff until he was
taken away by
ambulance to the Tonga Hospital. Under
cross-examination, he had great difficulty with, and did not succeed
in, answering questions
as to why they, three police officers, had
not been able to detain a person lying asleep on the floor to whom
they advanced within
one metre without, and before, waking him. One
of his answers, that he was scared that the first plaintiff had been
hiding a firearm
with which they could be shot, is singularly
unconvincing, particularly in the light of his earlier evidence that
the first plaintiff
was lying asleep on his back clutching a broken
bottle in his right hand.
[17]
Constable
Mavuso testified that he was charged by the first defendant with a
broken green Amstel bottle, which broken bottle he,
subsequent to the
shooting of the first plaintiff, moved away from the first plaintiff
and, thereafter, ultimately booked into
the SAP13 store and SAP13
register as evidence.
[6]
Although Constable Mavuso alleged that he could present the relevant
SAP13 register, and despite my invitation to Mr Lukhele,
on
behalf of the defendant, to deal with it in accordance with the
prescripts of procedural rules and the law of evidence for it
not
having been discovered by the stage of Constable’s Mavuso’s
evidence in chief and cross-examination, no attempt
was made during
the further course of the trail to have it admitted into evidence. On
this important aspect there is, therefore,
no corroboration of
Constable Mavuso’s evidence. He, further, testified that he did
not enter the hospital himself, because
he was a suspect in an
attempted murder case for having shot the first plaintiff, but when
confronted in cross examination
with the fact that it was put to
the second plaintiff in cross-examination that he, Constable Mavuso,
would testify that it was
him who cuffed the first plaintiff at the
hospital, he was not able to explain the contradiction and merely
stated that he did
not give his attorney such instructions.
[18]
Constable Makwakwa sought to, and did to some measure, corroborate
the evidence of Constable
Mavuso, but contradicted Constable Mavuso’s
evidence in the following material respects: -
[i]
He stated that he drove Mrs Nyambi to her house in his double cab
police vehicle and that she
alighted from that vehicle at the front
gate, whilst Constable Mavuso testified that Mrs Nyambi never
[7]
alighted from the vehicle prior to the shooting and was held inside
it for her own safety (both their versions are, of course,
contrary
to that of Mrs Nyambi, who testified that she travelled to her
house in the private vehicle of Ms Nombulelo,
the social worker,
followed by one police vehicle);
[ii]
He testified that it was only him and Constable Mavuso in the room
where the first plaintiff woke
up and not in a passage, whilst
Constable Mavuso testified that Constable Sambo was also present and
that they found the first
plaintiff in a passage between the two
rooms. Constable Makwakwa, under cross-examination, conceded that
Constable Mavuso was correct
in his version that they found the first
plaintiff in the passage;
[iii]
He testified that when the first plaintiff woke up, he first got to
his knees from the lying position and
thereafter stood up, which is
in direct contrast with the evidence of Constable Mavuso who could
not explain how the first plaintiff
got to his feet, despite having
been only one metre away from him;
[iv]
He testified that the first plaintiff could be observed at all times
and, contrary to the evidence by Constable
Mavuso, that he did not
disappear behind the canvas sheet at all, and stated under
cross examination that Constable Mavuso
was wrong about this
“
disappearance”
;
[v]
He testified that Constable Mavuso also followed the ambulance with
them to the hospital, and had to
change his evidence, when confronted
under cross-examination in regard to the presence of Constable Mavuso
at the hospital.
[19]
Moreover, Constable Makwakwa’s description of his witnessing of
the actual shooting
of the first plaintiff, including his ability to
have witnessed it in the circumstances that he described, is not only
improbable
but so far fetched that it cannot be accepted, in
that his evidence was that he at the moment of the shooting dived
through
an open window leading with his right shoulder and
simultaneously turning his head towards the inside of the room and
seeing the
actual shooting.
[20]
On a conspectus, the inference is irresistible that Constable Mavuso
acted in panic when
discharging the first warning shot and,
thereafter, shooting the first plaintiff in his right leg. While that
may be understandable,
given his predisposition as to the expectance
to encounter a drunken furious man armed with a firearm, it cannot
justify his shooting
of the first plaintiff in the circumstances.
THE LAW
[21]
Mr Lukhele,
on behalf of the defendant, correctly, submitted in his argument,
supported with written heads of argument, that
in respect of the
first plaintiff’s claim the onus rested on the defendant. I do
not agree with his submission that there
are two mutually destructive
versions, for his submission seems to be predicated on a
misunderstanding of the judgment of the Full
Court in
National
Employers General Insurance Co Ltd v Jagers
[8]
and the test laid down thus therein at 440G - I: -
“
If however the
probabilities are evenly balanced in the sense that they do not
favour the plaintiff’s case any more than they
do the
defendant’s, the plaintiff can only succeed if the court
nevertheless believes him and is satisfied that his evidence
is true
and that the defendant’s version is false.
This view seems to me
to be in general accordance with the views expressed by Coetzee J in
Koster Kooperatiewe Landboumaatskappy
Bpk v Suid-Afrikaanse Spoorweë
en Hawens (supra) and African Eagle Assurance Co Ltd v Cainer
(supra). I would merely stress
however that when in such
circumstances one talks about the plaintiff having discharged the
onus which rested upon him on a balance
of probabilities, one really
means that the court is satisfied on a balance of probabilities that
he was telling the truth and
that his version was therefore
acceptable.”
[22]
In
addition, such submission can only be predicated on a belief that
there are no probabilities whereon a matter can be decided
and would,
further, be based on ignorance of or a misconception of the
explanation by Coetzee J in
African
Eagle Life Assurance Co Ltd v Cainer
[9]
of his judgment in the
Koster
judgment,
[10]
where he stated
thus: -
“…
Where
there are no probabilities - where, for instance, the factum
probandum was whether a particular thing was white or black,
with not
the slightest evidence as to the preponderance of white or black
things in that particular community, there are clearly
no
probabilities of any sort. And when the testimony of witnesses is in
conflict, the one merely saying the thing was white and
the other
black, it does not matter logically what the measure of proof is,
whether it is on a balance of probabilities or beyond
a reasonable
doubt. The position is simply that there is no proof, by any
criterium, unless one is satisfied that one witness’
evidence
is true and that of the other is false.”
In
any event, on the submission, and should I have found that the
versions of the first plaintiff and the defendant are mutually
destructive, which I don’t, then the defendant should also fail
for having failed to acquit the onus.
[23]
On the
facts before me, I am able, without making a finding as to
credibility of any of the witnesses, to find that the version
of the
first plaintiff is more probable than that of the defendant,
wherefore I find that the defendant did not succeed in discharging
the onus resting on the police to prove on a preponderance of
probabilities that the shooting of the first plaintiff was
justifiable.
[11]
[24]
In my view, the evidence did not establish that the first plaintiff
was indeed charging
Constables Mavuso, Sambo and Makwakwa with a
broken bottle held in his raised right hand, and a reasonable person
in the position
of Constable Mavuso would not have believed that his
or Constables Sambo and Makwakwa’s lives or bodily integrity
were in
imminent danger. Everything that Constable Mavuso relied on
is not supportive of the fact that he, Constable Sambo or Constable
Makwakwa were in danger of imminent attack and his belief, to the
contrary, was not reasonably held. The overwhelming probability
is,
that he, acting in panic and whilst being predisposed as to the
situation that they could be facing, overreacted when shooting
the
first plaintiff.
[25]
It is now
settled law that the so-called claim for nervous or emotional shock
is recognised in this country where the plaintiff
shows that the
nervous shock is associated with a detectable psychiatric injury.
[12]
[26]
In
Komape
and Others v Minister of Basic Education and Others
[13]
Mr Justice of Appeal Leach, in the Supreme Court of Appeal’s
unanimous judgment, after consideration of the legal position
in
English and Scottish jurisdictions, and the historic treatment of
claims for so called nervous or emotional shock by the
common
law countries, stated:
[14]
-
“
[25] However,
for many years now, such a claim has been recognised in this country
where the claimant shows that the nervous shock
is associated with a
detectable psychiatric injury. Thus, in Bester v Commercial Union
6
this court, seemingly influenced to an extent by developments in
England,
7
held a psychological or psychiatric injury to constitute a ‘bodily
injury’ for the purposes of delictual liability,
and that there
was no reason in our law why a claimant who suffered such an injury
as the result of the negligent act of another
should not be entitled
to receive compensation.
[26] In Barnard v
Santam,
8
this court
subsequently confirmed the existence of a remedy where a plaintiff
sustained ‘nervous shock’, although Van
Heerden ACJ
pointed out that the term was outmoded and misleading as the only
question should be whether the plaintiff sustained
a detectible
psychiatric injury. Significantly Van Heerden ACJ declined to follow
the restrictions applicable in the United Kingdom
as laid down in
cases such as McLaughlin and Alcock, referred to below, that such a
claim was not available to a person who suffered
psychiatric injury
in consequence of a report of harm to a near relative (in that case a
mother being told of her son’s death
in a motor accident). Such
a ‘hearsay’ claimant is entitled to recover damages for
psychiatric injury whether they
are in proximity to, or come upon,
the victim of the accident or are told about it later. The test for a
liability is far more
dependent upon the relationship between the
claimant and the victim.
[27] The same approach
was followed by this court in Road Accident Fund v Sauls.
9
In that matter a plaintiff witnessed his [sic] fiancé being
struck by a motor vehicle in his near vicinity. She thought
he had
been killed or seriously injured (fortunately neither was the case)
and was left in a condition of shock and confusion.
She was
subsequently diagnosed with a post-traumatic stress disorder which
became chronic and unlikely to improve. As was summed
up in this
court, ‘her case is that as a consequence of her witnessing the
injury to [her fiancé] she suffered severe
emotional shock and
trauma which gave rise to a recognised and detectable psychiatric
injury …’ In holding the defendant
liable, Olivier JA
explained:
10
‘
It must be
accepted that in order to be successful a plaintiff in the
respondent’s position must prove, not mere nervous shock
or
trauma, but that she or he had sustained a detectable psychiatric
injury. That this must be so is, in my view, a necessary and
reasonable limitation to a plaintiff’s claim… I can find
no general, ‘public policy’ limitation to the
claim of a
plaintiff, other than a correct and careful application of the
well-known requirements of delictual liability and of
the onus of
proof’.”
[27]
Simply no evidence was adduced by, or on behalf of, the second
plaintiff that he
sustained a detectable psychiatric injury
as
a result of having been ordered and/or requested by one of the police
officers to cuff the first plaintiff after being shot
and wounded
(own emphasis). I pertinently refer to the “
order”
to cuff the first plaintiff as “
an order or request…”
,
as the evidence was not clear on whether it had been an order or a
request. Given the second plaintiff’s evidence that he
performed the cuffing willingly and in an attempt to subdue the first
plaintiff peacefully, the inference is unavoidable that it
was a
request. Indeed, I am not able to find that the “
order or
request”
had been directed negligently. I, therefore, find
that the second plaintiff failed to prove the requisite elements to
sustain a
claim of delictual liability against the defendant, i.e. a
negligent act by the defendant and that such negligent act caused
the
second plaintiff a detectible psychiatric injury. The second
plaintiff’s claim must fail.
ORDER
[28]
In the result, it is ordered that: -
[i]
The defendant is held liable for the damages that the first plaintiff
might be able to prove,
suffered in consequence of him being shot by
Constable Mavuso on 23 April 2017.
[ii]
The defendant is ordered to pay the first plaintiff’s costs.
[iii]
The trial on quantum is postponed
sine die
and any
re-enrolment thereof shall be by following the case management
process in accordance with this division’s practice
directive
of 16 September 2021, § 3.18 read with § 15
of this division’s directive dated 9 January 2020.
[iv]
The second plaintiff’s claim is dismissed,
with costs.
P
SIEBERHAGEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION (MAIN SEAT, MBOMBELA)
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 16 March 2022 at 10:00.
APPEARANCES:
Counsel
for the plaintiffs: Adv J Lindhout
Instructed
by:
Pieter Nel Attorneys
Mbombela.
Counsel
for the defendant: Mr Z L Lukhele (attorney)
Instructed
by:
The State Attorney, Pretoria
c/o Sibiya SS
Attorneys
Nelspruit.
[1]
Order
by Mankge AJ, on 19 August 2019, consolidating the actions between
Charles Ndlovu (plaintiff) and the Minister of Police
(defendant),
under case number 65/2018 of this Court, and between Zwelakhe
Simange Nyambi (plaintiff) and Minister of Police
(defendant), under
case number 180/2018 of this Court.
[2]
Order
by Roelofse AJ, for separation of issues on 23 March 2020.
[3]
Mabaso
v Felix
1981
(3) SA 865
(A) at 871H, 873E/F and 874C/D;
[1981] 2 All SA 306
(A);
Mugwena
and Another v Minister of Safety and Security
2006 (4) SA 150
(SCA) at [25].
[4]
The
defendant for instance, amongst others, pleaded evidence. In closing
argument, Mr Lukhele, on behalf of the defendant,
placed much
emphasis on a defence of necessity. That has, however, not been
covered by the pleadings.
[5]
Wynberg
Municipality v Dreyer
1920
AD 443
;
Robinson
v Randfontein Estates GM Co Ltd
1925 AD 198
;
Shill
v Milner
1937 AD 101
at 105.
[6]
The
“
SAP13
store”
derives its name from the register, designated as a “
SAP13”
register under and in terms of the relevant governing regulations,
kept by and at all the police stations, and wherein exhibits
relating to a registered case number are registered and locked into
for safekeeping and purposes of further use as exhibits in
a given
case.
[7]
This
version was not dealt with in the pleadings.
[8]
1984
(4) SA 432
(ECD), incorrectly cited by Mr Lukhele in his written
heads of argument as an Appellate Division judgment (citation at
footnote
3 of the written heads of argument).
[9]
1980 (2) SA 234
(W) at 237.
[10]
Koster
Kooperatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë
en Hawens
1974
(4) SA 420 (W).
[11]
Mabaso
v Felix
(
supra
)
at 871H, 873E/F and 874C/D;
Mugwena
and Another v Minister of Safety and Security
2006 (4) SA 150
(SCA) at [25].
[12]
Bester
v Commercial Union Versekeringsmaatskappy van SA Bpk
1973
(1) SA 769
(A);
Barnard
v Santam Bpk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA);
Road
Accident Fund v Sauls
2002 (2) SA 55
(SCA);
Komape
and Others v Minister of Basic Education and Others
(
infra
)
at [25].
[13]
2020
(2) SA 347 (SCA).
[14]
At
[25] - [27].