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[2022] ZANCHC 62
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Pretorius v Minister of Police (27250/2018) [2022] ZANCHC 62 (30 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2750/2018
Heard:
19 - 23/04/2021;11/04/2022
Argued:
29/07/2022
Delivered:
30/09/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
HERRY
PRETORIUS
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
Mamosebo
J
[1]
This case is a typical example of a service delivery protest that
went wrong at J[....],
Roodepan, in the Northern Cape Province. The
action involves a delictual liability claim by plaintiff, Mr Herry
Pretorius, for
damages against the defendant, the Minister of Police,
for injuries he sustained to his left eye. At the commencement of the
trial,
liability and quantum of damages were separated. Liability
will be determined at this stage. Adv. SL Erasmus represented the
plaintiff and Adv. D Olivier represented the defendant.
[2]
The following facts were either admitted in the exchange of pleadings
or not seriously
disputed by the defendant. On 21 April 2016 in
the afternoon, the plaintiff sustained an injury to his left eye
around the
J[....] vicinity in Roodepan resultantly causing him to
lose his left eye, suffering permanent loss of vision. It
happened
in a built-up, high-risk area.
[3]
The said service delivery protest was monitored by members of the
South African Police
Service (SAPS). According to the SAPS
prescripts they were required to use the minimum force
necessary to subdue and
disperse the crowds; maintain
law and order and protect life and property; perform their official
duties with due
regard to their powers, duties and functions and in a
manner that is reasonable under the circumstances. The police
may only
use rubber bullets to disperse the crowd in extreme
circumstances and if less forceful methods proved to be ineffective.
The
SAPS commanders and all the other members were at all times
acting within the scope and authority of their employment.
[4]
The plaintiff is an adult male informally employed as a “jump
boy”
[1]
for about six
years in the taxi industry and resides at A[....] Street in J[....],
Roodepan, Kimberley. The Minister of Police
is a member of the
Executive in the national government, responsible for the actions of
the police cited in his official capacity
as the nominal defendant in
terms of the State Liability Act
[2]
.
[5]
The issue for determination is whether the Minister should be held
liable for the
damages suffered by the plaintiff.
[6]
On 14 November 2018 the plaintiff instituted action for damages
against the Minister.
He pleaded that during the afternoon of
21 April 2016 and at Roodepan an unknown member of the police
assaulted him by firing a
rubber bullet at him. In the
alternative, that the unknown shooter negligently fired a rubber
bullet at him in a residential
area where members of a community,
including children, were engaged in service delivery protests, whilst
he did not engage in such
protests. The shooter and/or his
commanders acted wrongfully and were negligent resultantly causing
him to suffer damages.
Plaintiff’s
evidence and case
[7]
The plaintiff, an unsophisticated 30-year old, whose highest academic
achievement
is Grade 5, testified and called three witnesses, Lena
Magdeline Gewers (aunt Lena), Dirk Pretorius (Oom Dirk) and Dr Diane
Dalene
Towell, to testify. Plaintiff’s evidence is to the
effect that on 21 April 2016 he knocked off work around 12:00 midday.
At past 13:00 he alighted from the taxi at the corner of
Midlands and Mahogany Streets. The road was blockaded. He
walked through the erven of the unfenced houses to get to his
grandfather’s home where he resides in A[....] Street.
[8]
Plaintiff’s grandfather sent him to the tuckshop to buy milk
and bread. He
walked to the tuckshop near Leadwood and Deanne
Streets. He stepped out of the tuckshop and walked for
approximately 15 meters
at which point he felt something hit him in
the eye. He had turned for a split second (which he described
as “tjoep”)
to see what was happening behind him when the
bullet struck him on his left eye. It was between 14:00 and
15:00. He
did not know it was a bullet but heard people saying
so. The bread and milk fell to the ground. Before he was
shot,
he saw two police officers about five meters from where he was.
One was putting things in the firearm while the other was
shooting. There was also a police armoured vehicle (Casper)
driving around shooting at people. He fell to his knees.
He
heard children shouting at the police stating that they had shot
someone in the eye. He is uncertain whether the
shot had come
from the two police officers who were on foot or from the police who
were in the armoured vehicle.
[9]
Lena Gewers
, whom the plaintiff refers to as aunt Lena,
arrived on the scene and took the plaintiff to his grandfather’s
place. Dirk
Pretorius and Eden assisted her. The three of
them later accompanied the plaintiff, who had covered his bleeding
eye with
his T-shirt, on foot, to Roodepan Police Station, at the
corner of Midlands and Eagle Streets, to lay charges against the
police.
[10]
Ms Gewers saw the plaintiff around 14:00 passing through her yard. He
was uninjured then. Shortly
thereafter she saw the plaintiff
passing her home again towards the tuckshop. She was standing
outside her home. She
heard a person screaming and uttering the
words in Afrikaans “
eina”
and “
my oog”.
She rushed towards the plaintiff and found him holding a
T-shirt to his eye. There were not many people around. She
saw a police truck parked nearby shooting at random at people who
were fleeing from it. She took the plaintiff to his
grandfather’s
home. Ms Gewers reported to the police that
the plaintiff was shot. Although the police had summoned an
ambulance she
left and returned to her home before it could arrive.
The plaintiff remained in the company of his uncle and Eden.
[11]
After a long wait at the police station the police informed them that
the ambulance would not
fetch him, so they returned to his
grandfather’s home. The ambulance only arrived around
23:00 and conveyed the plaintiff
to Kimberley Hospital where he only
received medical treatment the following morning and was hospitalised
for five days.
[12]
Mr Pretorius testified that he resides in the same house with the
plaintiff and his grandfather
. When the plaintiff returned
home from work on 21 April 2016 he was uninjured. Shortly
thereafter he went to the tuckshop.
He returned from the
tuckshop accompanied by Ms Gewers and Eden and his eye was shattered
(out). He, Ms Gewers and
Eden helped support the plaintiff to
the police station. By dusk, when the ambulance had not
arrived, they walked back home
where they waited until its arrival at
around 23:00. Pretorius denied having been part of the protest
action and was also
not at the scene where the plaintiff was injured.
[13]
Dr Towell is the medical doctor who examined the plaintiff on 22
April 2016 and completed a J88 Form
. Her findings were that
the plaintiff had sustained periorbital bruising around the eye
region or socket with conjunctival
swelling and bleeding. The
eye was blind. The doctor concluded that the plaintiff
sustained a rubber bullet injury
to his left eye, ruling out the
likelihood of the injury being caused by a stone or a brick, which
would not have had such a strong
projectile. A brick would have
caused a more extensive injury.
[14]
After the plaintiff was discharged from hospital he reported the
incident at Roodepan Police
Station. One Uncle T (full names
unknown) took him to the Provincial Head of the police who gave him
forms and advised him
to report the matter to the Independent Police
Investigative Directorate (IPID). A case docket under
CAS189/4/2016 was opened
and IPID investigated the case. There
was no photo or any other identity parade conducted because he would
not identify the
shooter.
[15]
It is the plaintiff’s case that the shooter and the commanders
acted wrongfully and were
negligent because there were no plans or
contingency plans, alternatively that there were inadequate plans put
in place to disperse
or control the protestors. The shooters
and their commanders were not properly trained or briefed. Because
of this
inadequate planning, briefing or training there was confusion
among the commanders and the shooters. The commanders did not,
under the circumstances, exercise reasonable care in the planning,
briefing, implementation, command and control of any operation
to
minimise the risk of violence. The commanders did not exercise
control over the shooter resultantly causing the shooter
to utilise
excessive force. The actions of the commanders and the shooters
were contrary to the law, policies, standing orders
or instructions
of the police.
The
Defendant’s case
[16]
The defendant disputes that there was a shooter and that a member of
the SAPS shot the plaintiff
with a rubber bullet. The defendant
further denies that the SAPS members acted wrongfully, intentionally
or negligently.
In the alternative, should the Court find that
the plaintiff was shot as alleged, the defendant pleaded that the
police did
not act negligently or unlawfully but out of necessity
when they used the rubber bullets to disperse the crowds. Their
action
was to prevent injuries to persons and damage to property.
The defendant further pleaded that there were adequate plans in
place and reasonable care was taken in the planning, briefing,
implementation, command and control to disperse the protestors.
They
took reasonable steps to minimise the risk of violence and injury to
persons or damage to property. They deny
the use of excessive
force when controlling or dispersing the protestors.
[17]
Only one witness, Lt Col Pieter Jansen, testified for the defendant.
His evidence was that on
21 April 2016 he had been the Operational
Commander of the Public Order Police (POP) for 6 years. He has
been a member of
the POP, a unit responsible for crowd management in
any violent situation, for 23 years. He is currently the
Station Commander
at Roodepan Police Station. At the time of
testifying, he had served the SAPS for 28 years.
[18]
Lt Col Jansen commenced his testimony by sketching the principles,
regulations, policies, National
Instructions etc, pertaining to
protest action or a volatile or riotous situation. According to
him the Technical Response
Unit (TRT) is another unit in the SAPS
that will be called in to assist the POP unit should a dangerous
situation arise. They
will be under the command of the POP
Operational Commander, in this instance, Lt Col Jansen. Several
Occurrence Books (OB’s)
are kept at the police station purely
for purposes of recording incidents. There is another OB kept
in the operational room.
Each unit has its own OB. The
incidents must be recorded soon after they have occurred, time and
description must be
entered and they follow chronologically. A late
entry is also permissible.
[19]
IRIS stands for Incident Report Information System. It
comprises a computer-generated report
from all the information
captured in the OB. The people responsible for IRIS are trained
and located in the operational room.
They receive information
of incidents throughout the day and update the IRIS. Members of
POP operate the operational
room 24 hours a day.
[20]
There is a National Instruction 4/2014: Public Order Police Crowd
Management during Public Gatherings
and Demonstrations. This
document consists of police orders and policy applicable to POP for
crowd management. Each
member of the service, more
particularly, the POP and TRT, is furnished with a copy and must
abide by its instructions.
[21]
There are several approaches available to the SAPS in instances of
dispersing crowds. The
first is the soft approach which entails
the members of the SAPS approaching the situation unarmed and without
vehicles. However,
should a need arise or the situation demand
otherwise, for example when stones are pelted, then nothing stops the
members from
changing to the second approach of using stun grenades,
which only emits a sound. Should the situation pose further
danger
to lives by protestors pelting stones at the police or
property or other people, the situation will demand the use of either
water
cannons or rubber bullets. These will be under the
command of the operational commander. A warrant officer or an
officer
of a higher rank is authorised to give instructions to the
subordinate members to disperse the crowds and to arrest any
person(s)
identified in the commission of a crime. Teargas is
used when an observation is made that the crowds are not listening
and
there is a threat of attack towards the police and the situation
is assessed as dangerous. The SAPS members must stop pursuing
the crowds when they flee in different directions. Either a W/O
or any trained person who is able to assess the situation
can give
the instruction to cease-fire when the people are fleeing and the
element of danger is eradicated. The OB and IRIS
will be
updated.
[22]
Lt Col Jansen testified that the protest actions were in various
places in Roodepan on that day
with the protestors barricading roads.
He became aware thereof at 03:00 in the morning when he
reported for duty. The
protest started at the graveyard.
The first recording in IRIS on 21 April 2016 was a report by W/O
Magau at 03:40 for an
unrelated matter at Ivory Park which is not
within the J[....] vicinity. The subsequent reports made were
the following:
at 06:40 there were approximately 30 people at the
Roodepan cemetery which is less than a kilometre from Mahogany
Street; about
20 people at J[....] scattered along the main road at
entrances to the area. W/O Coetzer reported that at 07:35 about
30
people threw stones at the water cannon in Starling Road, far from
J[....], and water cannon was used to disperse them. Lt
Col
Jansen reported that at 07:58 the crowd was moving to Barkley Road
and he gave an instruction to disperse the crowd.
He hurled one
stun grenade. Cst Lepotha fired one T smoke grenade with a
shotgun and one stun grenade. Cst Dunster
shot one rubber round
with a shotgun. No injuries were reported to POP.
[23]
After 16:00 senior members of the police had gathered at the cemetery
in the company of Brigadier
Sibili. Whilst there, the Brigadier
alerted Lt Col Jansen that the crowd was barricading the roads and
instruction was given to
the members to disperse the crowd and to
clear the roads. That took place on Midlands Road near Mahogany
Street, next to
J[....]. The dispersing crowd ran into the
residential area.
[24]
Lt Col Jansen was not aware of any instruction to any POP member
between 13:00 and 15:00 on the
day of the incident to enter the
residential area of J[....] either on foot or by Nyala
[3]
.
According to him there was no instruction given to use rubber
bullets, gas or stun grenades on that day to disperse the
crowds.
Had that been the case, they would have been recorded in IRIS.
[25]
Lt Col Jansen explained that in terms of the National Instruction
4/2014, there must be a videographer
who will at all times record the
activities of the crowds and their dispersal. The videographers
have received specialised
training for this job. In this
instance, however, there was only one videographer despite there
being several activities
at different places. Lt Col Jansen did
not personally view any of the footages before attending the trial.
He conceded
that there was nothing in the video footages
depicting the dispersal of the crowds and the type of ammunition used
on 21 April
2016. This could also not be determined from IRIS.
Although a record or register (Form SAP 108) must be kept
concerning
firearms and ammunition allocated to each member on each
specific day, he could not produce any or persuade the Court that any
record was kept or updated for the incident of 21 April 2016.
He could also not say with certainty if there was any reconciliation
done after the protest to determine who could have fired the shot on
21 April 2016. He further could not tell who the warrant
officer was who gave the instruction from POP. Unlike the
events of 21
April, Cst Sedisho accounted for rubber
bullets fired the following day, on 22 April 2016 at 11:30.
[26]
Just to elaborate briefly on the aspect of the video footage. As
stated earlier Lt Col
Jansen had not viewed any of the footages
before he testified. He was cross-examined on the six video clips in
respect of the occurrences
of 21 April 2016. The following
gives a summary of the footages:
26.1
Clip 99 (1 minute and 7 seconds) no scenes of gathering or violence,
only depicts people walking along the
road;
26.2
Clip 100 (11:26 – 11:29) depicts a tarred road blocked with
branches and fires being extinguished with
water. It shows a
small crowd in the veld fleeing in the direction of a built up area.
This footage corresponds with
the IRIS entry made at 11:22
where W/O Coetzer reported from U-Save circle.
26.3
Clip 101 (12:08 – 12:09) no corresponding entry in IRIS. This
footage shows an empty veld and
an armoured vehicle driving on a
tarred road with rubble strewn over the road and a few people on the
road.
26.4
Clip 102 (16:18 – 16:29) no footage of any serious violent
crime or damage to property or injury to
persons.
26.5
Clip 103 (16:29 – 16:30) depicts police officers walking and
two women walking along with them, nothing
else seems to be
happening.
26.6
Clip 104 (16:34 – 16:36) seemingly taken at a T-junction at the
Roodepan Police Station and shows police
removing rubble from the
street with onlookers and cars parked on the side of the street.
[27]
Lt Col Jansen was cross-examined on PTB 1 of IRIS furnishing a
detailed report of the 60 rubber
bullets and by whom they were fired.
However, on 21 April 2016, while it is recorded that 67
ammunition were used, of which
12 bore rubber heads, five stun
grenades and 12 bore tear smoke, no one can account for the
remainder. Astonishingly, the
entry of 21 April 2016 does not
specify any names against ammunition used. It is also
inexplicable why Yono and Moitsi’s
names are not accounted for
in that entry. It is also significant that Lt Col Jansen was
unable to explain what else, other
than a rubber projectile, could
have lodged in the eye of the plaintiff on 21 April 2016. If
one accepts, for a moment, that
the entry made on 22 April 2016 took
into account the ammunition used on 21 April 2016, there are still 7
rubber bullets unaccounted
for. Lt Col Jansen conceded, correctly so
in my view, that recordkeeping, which included the keeping and
updating of OB entries
as well as the updating of IRIS on 21 April
2016, was unreliable.
[28]
PTB 2 is a copy of a page of Lt Col Jansen’s diary in respect
of 21
April 2016. It does not contain any entry pertaining to his
instruction, as operational commander, to disperse the crowd
at 16:00
and use rubber bullets. Even after the trial was adjourned for
almost a year Lt Col Jansen returned to court without
having perused
the Form SAP 15. This form indicates which members were on
duty, at which point(s) they were stationed at
on the relevant days
and under whose command they were operating. This was lacking
despite the fact that he referred to it
in his evidence. The
form could not be traced at the POP. He also did not look for
or submit FORM SAP 108, which would
have specified the shotguns and
firearms used by each member on 21 April 2016. The records were
missing or were not discovered
despite request.
[29]
From the discovered portion of the diary of Capt Harmse, the entry
relevant to 21 April 2016
is that he briefed members that they had to
assist POP Kimberley during crowd management duties in Roodepan. At
11:00 they
escorted the mayor to Roodepan. At 14:30, having
been alerted by Brig. Sibili that two of his members were busy
shooting,
he asked Csts Yono and Moitsi for an explanation for their
shooting in the direction of J[....]. Their explanation was
that
they used their discretion when they saw people hurling stones
at cars passing by. Harmse instructed them to make the
necessary
entries in their pocket books but these were not
discovered. Lt Col Jansen clarified during cross-examination
that the constables
could only exercise their discretion when their
or other people’s lives or property were in danger. He
denied giving
the instruction at 14:50 to disperse the crowd in the
J[....] area. He added that there was no IRIS report or any
other report
that Moitsi and Yono were instructed to fire rubber
bullets and that their entries were only made after the
investigations by the
Independent Police Investigation Department
(IPID) on 12 July 2016.
Analysis
of the plaintiff’s evidence
[30]
There is a discrepancy between the evidence of Lena and Dirk
Pretorius, regarding whether they
both took the plaintiff to his
grandfather’s place or whether Dirk was present or not at the
scene as according to Dirk they
found him at the grandfather’s
home. Another discrepancy lies between the evidence of the
plaintiff and Dr Towell pertaining
to when the medical certificate
(J88 form) was handed to the plaintiff, but nothing turns on these
aspects. The plaintiff’s
evidence pertaining to the
averment that the eye was injured by a projectile is corroborated by
Ms Gewers and Dr Towell. I
am acutely aware that the defendant
has not presented an iota of evidence relating to what had led to the
plaintiff’s injury
[31]
The plaintiff was cross-examined at length by Mr Olivier on the OB
entry dated 6 May 2016 which
reflected the date and time as
21 April
2016 at 17:50; on the
averments about Uncle T taking him to the
‘
baas van die polisie’,
who called a meeting to
show those in attendance what they had done to the plaintiff whereas
he had told them not to shoot at people;
on his affidavit although
the defendant had not denied that such meeting did not take place;
and on the statement made to IPID.
[32]
On the aspect of the witness being cross-examined on his statement to
the police, Nestadt JA
commented in
S
v Mkohle
[4]
:
“
The
general rule is that a witness’ previous consistent statement
has no probative value (Hoffman and Zeffert The South African
Law of
Evidence 4
th
ed at 117). An exception to the rule occurs where it is suggested
that the witnesses’ story is a recent invention.”
I
have not found any shred of evidence that suggested that the evidence
of the plaintiff and his witnesses, was invented or fabricated.
In
fact, all the witnesses were credible and honest.
[33]
Constables Moitsi and Yono, who were assisting POP with crowd
management around the time when
the plaintiff was injured, made
statements wherein they admitted having been in police uniform and
having fired rubber rounds,
at their own discretion, to disperse the
crowds. The time that Moitsi mentions in his statement
coincides with the plaintiff’s
time of injury. What
completes the jigsaw puzzle is Moitsi’s statement that the
crowd ran to the built up area (the
houses). He added that both
the Crime Prevention Unit and POP were firing shots at the
protestors. It is recorded in
the statement that during that
timeframe when the plaintiff was injured there were about 300
protestors but the number was significantly
reduced to about 80 after
the members had dispersed them.
[34]
Uncle T was not called by either party to testify. He is
employed at Roodepan Police Station
where Lt Col Jansen is now the
Station Commander. There is no explanation by the defendant why
Uncle T and the following
witnesses with first-hand knowledge of what
transpired on the 21 April 2016 were not called to testify: Capt.
Harmse, Csts Yono
and Moitsi, Brig. Sibili, as well as the Warrant
Officers who were delegated to give instructions to disperse the
crowds on 21
April 2016, namely, Coetzer, Tsenoge, Mtombeki, Williams
and the videographer, Ehlers. The only reasonable inference
that
the Court can draw under the circumstances is as enunciated in
In
Elgin
Finedays Ltd v Webb
[5]
:
“…
it
is true that if a party fails to place the evidence of a witness, who
is available and able to elucidate the facts, before the
trial court,
this failure leads naturally to the inference that he fears such
evidence will expose facts unfavourable to him …”.
[35]
The insightful remarks by the Supreme Court of appeal pertaining to
contradictions in the statements
or versions of the witnesses is
crisply dealt with in
S
v Mafaladiso en andere
[6]
where
the SCA held
:
“
The
juridical approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such
as,
inter alia, between her or his viva voce evidence and a previous
statement) is, in principle (even if not in degree), identical.
Indeed, in neither case is the aim to prove which of the
versions is correct, but to satisfy oneself that the witness could
err, either because of a defective recollection or because of
dishonesty. The mere fact that it is evident that there are
self-contradictions must be approached with caution by a court.
Firstly, it must be carefully determined what the witnesses
actually meant to say on each occasion, in order to determine whether
there is an actual contradiction and what is the precise
nature
thereof. In this regard the adjudicator of fact must keep in
mind that a previous statement is not taken down by means
of
cross-examination, that there may be language and cultural
differences between the witness and the person taking down the
statement
which can stand in the way of what precisely was meant, and
that the person giving the statement is seldom, if ever, asked by the
police officer to explain their statement in detail. Secondly,
it must be kept in mind that not every error by a witness
and not
every contradiction or deviation affects the credibility of a
witness. Non-material deviations are not necessarily relevant.
Thirdly, the contradictory versions must be considered and
evaluated on a holistic basis. The circumstances under which
the versions were made, the proven reasons for the contradictions,
the actual effect of the contradictions with regard to the
reliability and credibility of the witness, the question whether the
witness was given a sufficient opportunity to explain the
contradictions - and the quality of the explanations - and the
connection between the contradictions and the rest of the witness'
evidence, amongst other factors, to be taken into consideration and
weighed up. Lastly, there is the final task of the trial
Judge,
namely to weigh up the previous statement against the viva voce
evidence, to consider all the evidence and to decide whether
it is
reliable or not and to decide whether the truth has been told,
despite any shortcomings.”
[36]
The defendant pressed in argument that there were contradictions
between the evidence of the
plaintiff and Ms Gewers. This is a
misconception because it must be borne in mind that they were at
different vantage points
when the shooting occurred. She heard
the plaintiff scream “
eina”
and “my oog”.
In
my view, the related versions are not incompatible or destructive of
each other. In any event, the following was stated
in
S
v Mkohle
[7]
where
the court held:
“
Contradictions
per se do not lead to the rejection of a witness’ evidence. As
Nicholas J, as he then was, observed in S v
Oosthuizen
1982 (3) SA
571
(T) at 576B – C, they may simply be indicative of an error.
And (at 576G – H) it is stated that not every error made
by a
witness affects his credibility; in each case the trier of fact has
to make an evaluation; taking into account such matters
as the nature
of the contradictions, their number and importance, and their bearing
on other parts of the witness’ evidence.”
I also
take notice of the fact that this incident happened during a protest
action and the scene was therefore not static but moving.
Analysis
of the defendant’s evidence
[37]
Lt Col Jansen was the only witness to testify for the defendant. He
carried a huge responsibility
to present a coherent version on behalf
of the defendant, more particularly because he was the operational
commander. An
astonishing factor is that there was neither an
operational plan put in place, nor a proper briefing by both Capt
Vava who was
the POP operational commander working in conjunction
with W/O Magau. Jansen’s taking over as operational
commander
under these circumstances can be equated to a man going to
war blindfolded because he states that he merely acted in accordance
with the information supplied to him.
[38]
Jansen did not peruse the IRIS reports for the previous three days of
18, 19 and 20 April 2016.
According to him he just worked on
the contingency plan, which is a document similar to a National
Instruction. Although
he answered in the affirmative when asked
whether there was a written contingency plan in respect of the
current protest he could
not explain why no discovery of the
contingency plan and the operational plan were made.
[39]
Lt Col Jansen had opportunity at any point in time to scrutinise the
video footage but up to
the date on which he testified he had not
viewed any of the footages relating to the various incidents.
[40]
When it comes to the National Instruction 4/2014 marked “PTB2”
and canvassed in detail
during the trial, it became undisputed that
it was not complied with. Assessing the evidence of Lt Col
Jansen, particularly
during his cross-examination, the following
areas of discussion became conspicuous:
40.1
There was a lot of information that was not communicated to Lt Col
Jansen as the operational commander (para
2(k);
40.2
The SAPS carried the responsibility to report to the operations room
and IRIS. The allegations by the plaintiff
were supposed to have been
registered in the IRIS but no report was made to Lt Col Jansen (Para
2l);
40.3
Despite the presence of Brig. Sibili making her the overall operating
commander, Lt Col Jansen still bore
the responsibility for the
operational execution and coordination of the operation in Roodepan
on 21 April 2016 supported by commanders
of different units at
different areas. He was unable to state who the commanders in
each area, the platoons or divisions
were and who the commander was
at J[....] on 21 April 2016 when the plaintiff was injured (para
2(q)).
40.4
The responsibility of ensuring that the Standard Operating Policy is
implemented and that the directives
and Standard Operating Procedures
(SOP’s) are circulated, reposed in Brig. Sibili. However,
ensuring that these policies
are discovered was the responsibility of
Lt Col Jansen but he could not explain the non-discovery as advised
by his legal team
(para 3(7)).
40.5
Whereas paras 4(2), (3) and (4) of the National Instructions deal
with operational functions and tasks of
the POP units and the
regulation of information management, Lt Col Jansen testified for the
first time during cross-examination
that
the information on 21 April 2016 was relayed to Mr Matiye, the
spokesperson. The prescripts are clear that there must be an
operational plan but, not only was Lt Col Jansen unable to tell
whether there was a plan in existence for that day, he was also
unable to explain why it was not discovered.
40.6
Para 4(3) requires the POP commander to ensure that all notices in
respect of his or her area of responsibility
are captured within one
hour of becoming aware thereof and monitor all information registered
on IRIS to ensure data integrity.
Whilst all units were
required to have at least one person per shift to register incidents
on IRIS and one IRIS controller
per unit to monitor data integrity on
IRIS, Lt Col Jansen did not know who those persons were.
40.7
Para 4(4) is of significance in that it requires video camera
operators to be designated and deployed by
the information manager
at
all events
to
monitor the event with
evidence-based
video footages
to
address events identified in the threat assessment. Undoubtedly,
the video footage as already referred to at para 26 (above)
does not
contain any footage confirming serious violence. If we compare
the footage in this case with the footage described
by Gamble J in
the unreported judgment of
Mandhlaami
v Minister of Police
[8]
it
pales into insignificance:
“
[33]
In reviewing the video material, one is struck by the
relative patience and reticence
of the police, who were severely
provoked and constantly being pelted with stones, to open
fire. On many occasions
the police sought shelter under the
footbridge or behind the Nyala’s. As described above,
there was an ebb and flow
as the parties engaged
with each other back and forth. So, when under attack the
police would advance
towards the protestors, cross the railway line
if necessary, discharge their firearms, repulse the protestors and
retreat back
to their original positions. One does not see an
indiscriminate and persistent discharge of firearms in an attempt to
mow down
the protestors.
[34]
Ultimately, the video footage shows that after about 40 minutes of
persistent pelting of the
police, the crowd was driven back across
the public space to Malva Street, where they congregated en masse.
In the result,
it was the measured resistance of the police
which restored relative calm to the area around the railway line, the
footbridge and
the electrical substation.
[35]
I should also point out that the time when the shooting took place
(around 18:50) according to
the cotemporaneous commentary of the
videographer) generally coincides with the plaintiff’s evidence
as to the time when
he was injured.”
Unlike
the video footage in
Mandhlaami
supra
where the Judge
was satisfied that it covered the activity of the crowd of protestors
in some detail and over a protracted period,
the footage
in casu
is very unhelpful.
[41]
There was further non-compliance in paras 9, 12, 13, 13(2), 14(2),
14(6), 14(12), 17(2) and 18(2),
which I need not deliberate further
on in the already punctured defence case.
[42]
It is trite that the plaintiff carries the
onus
to
prove the shooting and injury. Once assault is complained of it
implies wrongfulness on the part of the police
[9]
.
The
onus
will then shift to the defendant to show the
lawfulness of the shooting.
[10]
Regard being had to the evidence of the plaintiff corroborated
by Ms Gewers and Dr Towell; the circumstantial evidence of
W/O
Harmse’s entry in the diary; the phone call by Brig. Sibili as
well as Yono and Moitsi’s statements, I am satisfied
that the
police had shot the plaintiff with a rubber bullet, which caused him
the loss of his left eye.
[43]
The police prescripts caution them against shooting in a populated
residential area. Mr
Olivier, for the Minister, invoking the
principle in
Makgatho
v S
[11]
made the submission that
it is not enough that one should reasonably have foreseen the
possibility of other consequences ensuing from one’s actions
but that one must have actually and subjectively foreseen this
possibility to found
dolus
eventualis.
[44]
The test for
dolus
eventualis
is twofold and trite: First, did the individual subjectively
foresee the possibility of the consequences of his or her actions
and, secondly, did he or she reconcile him- or herself with this
possibility. See
Director
of Public Prosecutions v Pistorius
[12]
.
[45]
It is plain, in my view, that the shots were fired in a built-up
residential area and resulted
in the plaintiff being injured. There
was not only foresight of the possibility of injuring the plaintiff
but the police
nevertheless reconciled themselves in foresight. It
must be borne in mind that Moitsi and Yono stated in their statements
that they exercised their discretion when they fired shots. Not
only is there no evidence to support the circumstances under
which
their discretion was exercised but their low ranks demanded that they
should have acted under direct command or instruction
of a commander
or someone occupying a position of authority.
[46]
The action by Yono and Moitsi is further suggestive of members acting
negligently. Holmes
JA succinctly set out the
test for liability in
Kruger
v Coetzee
[13]
as follows:
“
For
the purposes of liability culpa arises if –
(a)
a diligens paterfamilias in the position of the defendant –
(i)
would foresee the reasonable possibility of his conduct injuring
another in
his person or property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.”
[47]
I reject outrightly the defence of self-defence. The police
were armed and clad in protective
riot gear. It cannot be said
that their only option was to fire rubber bullets at the crowd
without either the video footage
depicting the extent of the danger
and/or the evidence of an eyewitness for the Minister. There is
therefore no evidence
supporting the nature of the attack at any
point in time. I am satisfied that the defendant has not
established a defence
of self-defence in the circumstances.
[48]
The defendant raised several defences in the alternative to justify
the assault, should it be
found that members of the SAPS acting
negligently, assaulted the plaintiff. First is that the members
of the SAPS acted out
of
necessity
and
under the belief that there was danger or injury to persons and
damage to property. In
Chetty
v Minister of Police
[14]
,
where
a police dog in the process of the police controlling an unruly crowd
outside a furniture shop bit the plaintiff, Kriek J
summarised the
approach to be followed for necessity
to constitute a lawful defence in these terms:
“
In
the present context I consider that the police can only escape
liability for harm caused by them if the following requirements
are
satisfied:
1.
There
must have been reasonable grounds for thinking that, because of the
crowd’s behaviour, there was such a danger (commenced
or
imminent) of injury to persons or damage to or destruction of
property as to require police action. Whether or not such
a
situation existed must be considered objectively, the question being
whether a reasonable man in the position of the police would
have
believed that there was such a danger. It has been said that
this is the approach in relation to the requirements of
the defence
of necessity…
2.
The
means used in an endeavour to restore order and avert such danger,
and resulting in one or more members of the crowd being injured,
were
not excessive having regard to all the circumstances, such as the
nature and the extent of the danger, the likelihood of serious
injury
to persons, the value of the property threatened, etc. It is
apposite to note in this regard that whilst the Courts
will be astute
to protect the public from high-handed action on the part of the
police, -
‘
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 Court
room.’
(per
Van Winsen, AJ. (as he then was), in Ntanjana v Vorster and Minister
of Justice,
1950 (4) SA 398
(C) at p 406).
At
p410 of the same report, the learned Judge said:
“
The
law requires of the police no higher and no less a standard of duty
than is required of any member of the public placed in a
similar
situation, viz. that standard to which the ordinary and reasonable
man in the street is required to conform.””
[49]
To substantiate the defence of necessity, Mr Olivier, urged me to
consider that since the situation
was extremely fluid and volatile,
and that protests took place at several points, it sometimes became
necessary for members to
follow their instincts and not necessarily
implement the policies and procedures to the letter.
[50]
In
Petersen
v Minister of Safety and Security
[15]
Brand
JA approached the defence of necessity this way:
“
[11]
Can it be said that in these circumstances the police action which
caused Justin's injuries does not attract
liability because it was
justified in circumstances of necessity? Unlike self-defence –
also referred to as private
defence – the defence of necessity
does not require that the defendant's action must be directed at a
wrongful attacker.
There was therefore no need for the
respondent to establish that Justin was himself part of the attacking
crowd. What
the respondent had to prove in order to establish
the justification defence of necessity, appears, for example, in
broad outline,
from the following statements in 'Delict' 8(1) Lawsa
(2ed) by J R Midgley and J C van der Walt, para 87:
'An
act of necessity can be described as lawful conduct directed against
an innocent person for the purpose of protecting an interest
of the
actor or a third party… against a dangerous situation…
Whether
a situation of necessity existed is a factual question which must be
determined objectively…
A
person may inflict harm in a situation of necessity only if the
danger existed, or was imminent, and he or she has no other
reasonable
means of averting the danger…
The
means used and measures taken to avert the danger of harm must not
have been excessive, having regard to all the circumstances
of the
case…'.”
(emphasis added)
[51]
In my view, had the videographer produced ‘evidence-based’
video recordings and/or
the members who partook in the crowd control
and dispersing of the crowds testified to the grievous nature of the
situation objectively
illustrating that the police were charged at or
innocent members of the community or property faced imminent
danger when
shots were fired, the submission by Mr Olivier might have
carried some weight. However, to the contrary, at the stage
when
the police were firing rubber bullets the crowd was fleeing into
the residential area. More so, there is no evidence before
me
that the police had tried everything else to bring the crowd under
control and restore order before resorting to firing rubber
bullets.
In the absence of evidence from the defendant to that effect,
the alleged volatility remains unsubstantiated.
In
the result, the defendant has not discharged the
onus
of establishing that the conduct of the police officers which caused
the plaintiff’s injury was not wrongful and was justified
by
necessity.
[52]
The defendant further pleaded
contributory
negligence
contending
that the plaintiff accepted the risk of injury to himself and
contributed to his own injury, in terms of the principle
of
voluntary
assumption of risk
.
Mr Olivier is dealing here with two separate defences conflated
in one. The two defences are dealt with in
Santam
Insurance Co. Ltd v Vorster
[16]
.
Ogilvie
Thompson CJ in
Vorster
pronounced upon the distinction
[17]
when he held:
“
As
appears from what I have already said, the defence of volenti non fit
injuria has long been recognised in South Africa. The respective
criteria for the defence of volens and for that of contributory
negligence are, theoretically, radically different. The former
entails a subjective enquiry related to the particular plaintiff,
while the latter calls for an objective enquiry in conformity
with
the standard of the bonus pater-familias.”
[53]
The question to be answered is whether the defendant has established
the defence of
volens.
The
insightful remarks by Ogilvie Thompson CJ in
Vorster
[18]
continued:
“
I
am accordingly of opinion that, if it be shown that, in addition to
knowledge and appreciation of the danger, the claimant foresaw
the
risk of injury to himself, that will ordinarily suffice to establish
the “consent” required to render him volens
–
provided always that the particular risk which culminated in his
injuries falls within the ambit of the thus foreseen risk.
The
inherent difficulty that the central factum probandum – viz.
the consent to the particular risk which occasioned
the supervening
injuries – is basically a subjective enquiry can, I suggest,
only be bridged by way of inference from the
proved facts. In
the nature of things, direct evidence will seldom, if ever, be
available; and manifestly the negative ipse
dixit of the claimant
himself can by itself usually carry but little weight. The
Court must, in my view, thus perforce resort
first to an objective
assessment of the relevant facts in order to determine what, in the
premises, may fairly be said to have
been the inherent risks of the
particular hazardous activity under consideration. Thereafter,
the Court must proceed to make
a factual finding upon the vital
question as to whether or not the claimant must, despite his probable
protestations to the contrary,
have foreseen the particular risk
which later eventuated and caused his injuries, and is accordingly to
be held to have consented
thereto. The foregoing appears to me
to afford a practical method of dealing with what is admittedly a
somewhat difficult
problem, to be in general conformity with our
decisions in so fas as they touch this point.”
[54]
Taking cue from the Vorster judgment, the test for the knowledge of
risk by the plaintiff is
twofold: first, there must be an objective
assessment of the facts in order to ascertain the type of inherent
risks that existed
and secondly, a factual finding as to whether the
plaintiff foresaw the actual risk that later ensued and caused his
injuries.
Despite the roads having been blockaded by the
protestors when the plaintiff returned from work, there was no
shooting or
any form of violence taking place at that time including
when the plaintiff walked to the tuckshop. There is no
iota
of evidence, in my view, that suggests that the plaintiff must
have known and appreciated the risk and elected to encounter it.
It
therefore follows that the defendant has further not established this
defence of
volenti non fit
injuria
.
[55]
In as far as the defence of contributory negligence is concerned, I
have already found that the
defendant has not discharged the
onus
in establishing the defence of necessity. Establishing
contributory negligence therefore becomes an exercise in futility,
but for the sake of completeness, I comment briefly on the aspect.
The defendant has not shown that the plaintiff acted unlawfully
or
even participated in the protest action. The shooting incident
did not take place on the main road where the protest action
took
place but in a residential area. I found that the police were
negligent by firing rubber bullets in the direction of
the protestors
who were in a built-up area. I also commented on the conduct of
Yono and Moitsi in the exercise of their ill-fated
discretion as well
as the failure to account for the used ammunition and to pinpoint who
was placed in possession of which firearm
and ammunition as well as
the failure by the defendant’s witnesses to testify. What
is also concerning is the lack
of communication, the failure to
reconcile the records and lack of accountability pertaining to the
occurrences on 21 April 2016.
The absence of evidence-based
video-material is also a grave dereliction of duty by the police.
All these factors point
towards the way in which the police
conducted themselves particularly on the crucial day of 21 April
2016. These leave no
room for contributory negligence on the
part of the plaintiff. It will be unjust to regard the
plaintiff as a joint wrongdoer
under the circumstances.
[56]
I am satisfied that the defendant has not discharged the
onus
of proving that the police action in which the plaintiff was injured
on 21 April 2016 in the vicinity of J[....], Roodepan, was
lawful.
In the premise the defendant should be held liable for 100% of
the proven damages suffered by the plaintiff.
[57]
In the result, the following order is made:
1.
Defendant is
liable to pay 100% of plaintiff’s proven damages.
2.
Defendant
shall pay the agreed or taxed party and party costs of plaintiff.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the plaintiff:
Adv.
S.L. Erasmus
Instructed
by:
Elliott,
Maris, Wilmans & Hay Attorneys
For
the defendant: Adv.
A.D. Olivier
Instructed
by:
Office
of the State Attorney
Kimberley
[1]
As
explained by the witness, a jump boy in the taxi industry is an
assistant driver who opens and closes the taxi door for commuters
and helps them load or offload their goods from the taxi.
[2]
20 of 1957
[3]
A big armoured vehicle of the police
[4]
1990 (1) SACR 95
(A) at 99d
[5]
1947
AD 744
at 745
[6]
2003 (1) SACR 583
(SCA) at 593e – 594h translation as
appearing from the headnote
[7]
supra,
at
98f – g
[8]
[2017] ZAWCHC 33
at paras 33, 34 and 35
[9]
Bennett v Minister of Police
1980 (3) SA 24
(C) at 34 - 35
[10]
Prinsloo v Van der Linde
1997 (3) SACR 1012
(CC) para 37; Mabaso v
Felix
1981 (3) SA 865
(A) at 872G-H
[11]
[2013] ZASCA 34
at para 10
[12]
2016 (2) SA 317
(SCA) at para 29
[13]
1966 (2) SA 428
(A) at 430E - F
[14]
1976 (2) SA 450
(N) at 452F – 453C
[15]
[
2010]
1 All SA 19
(SCA) at para 11
[16]
1973 (4) SA 764 (A)
[17]
Ibid at 778F - G
[18]
Ibid 781B - F