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[2022] ZAECMHC 33
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Guntu v Minister of Police (962/2021) [2022] ZAECMHC 33 (8 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION,
MTHATHA
)
CASE
NO: 962/2021
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
LUBABALO
GUNTU
Plaintiff
And
MINISTER
OF
POLICE
Defendant
JUDGMENT
NONCEMBU
J:
Introduction
[1]
The plaintiff instituted the current action against the Minister of
Police (the defendant),
wherein he seeks damages arising out of his
arrest, detention and assault by the members of the police on 26
March 2021. The vicarious
liability of the defendant was admitted in
the matter.
[1]
[2]
It is also common cause that the plaintiff was arrested, shot at and
detained by members
of the police on 26 January 2021. The only issue
outstanding is the lawfulness or not of the said arrest, detention
and assault.
[3]
Prior to the commencement of the trial, the parties agreed on the
separation of issues
in terms of Rule 33(4), which agreement was
subsequently made an order of this court. Therefore, the issue of
liability and quantum
were separated, and the matter proceeded on
liability only, with the issue of quantum postponed
sine die
.
Also, by virtue of the admissions made by the defendant on the
pleadings, it was agreed between the parties that the defendant
bore
the onus of proof and the duty to begin.
The
Pleadings
[4]
At the commencement of the trial, the defendant handed into court an
amended plea which
was admitted by consent. In the initial plea the
assault and the unlawfulness of the arrest were disputed by the
defendant. The
amended plea conceded both the arrest, detention and
the assault of the plaintiff by the police. According to the amended
plea
however, the said assault, arrest and detention were not
wrongful and unlawful due to the following reasons:
(a)
The arrest was in terms of section 40(1) of the Criminal Procedure
Act,
[2]
in that the plaintiff
had committed a schedule 1 offence - he broke the lock-down
Regulations by being on the streets after 21h00
in circumstances
where he was prohibited from being outdoors; and he pointed a firearm
at the police;
(b)
the purpose of the detention was to allow the police to investigate
the firearm used by the plaintiff,
to verify the plaintiff’s
address, and to ensure that the plaintiff was taken to appear in
court;
(c)
the plaintiff was shot because he pointed a firearm at the police,
and as such the police had to defend
themselves. In the circumstances
therefore, the shooting was justifiable.
The
Evidence
[5]
The defendant led the evidence of two witnesses, Sergeant Babi (Babi)
and Constable
Sonamzi (Sonamzi). Nothing much turns on the evidence
of Sgt Babi because he was not the arresting officer on the day in
question,
and on his evidence, he did not see much of what happened
immediately prior and during the arrest of the plaintiff.
[6]
The salient features of his evidence were that he was on duty,
working the night shift
on the day in question. His duties included
doing patrols around the Butterworth city centre in his patrol
vehicle (Nissan motor
vehicle). He was together with Sergeant
Mbangatha who was his crew member on the day. This was during the
National State of Disaster
period, and as such there was a curfew
which prohibited persons and vehicles from being outdoors between
certain hours of the night
until the following morning.
[3]
[7]
Whilst he was busy with his patrols near Fingoland Mall, Babi saw a
golf vehicle which
failed to stop when he tried to stop it. He gave
chase to the said vehicle, and when it continued to speed away, he
called for
back-up. He suspected that the vehicle was involved in a
kidnapping because it was overloaded with passengers.
[8]
Constable Sonamzi responded to the call for back-up, and together
with his crew, joined
Babi in the chase. They managed to stop the
golf vehicle near Mzantsi locality. Babi’s vehicle stopped in
the front whilst
Sonamzi stopped behind the vehicle in question. Babi
took a while to alight from his vehicle, as a result he did not see
what transpired
after the vehicle had stopped. He only heard Sonamzi
shouting ‘drop the gun, drop the gun’, after which he
heard gunshots.
He did not see who was firing the shots, but later
learnt that the plaintiff had been injured during the shooting.
[9]
Sonamzi testified that he was doing patrols around Butterworth with
Constable Mbelekane
when he received a call for back-up from sergeant
Babi around 2 am on the day in question. He proceeded to the scene
and joined
the chase where a suspicious golf vehicle was refusing to
stop. The golf suddenly stopped, applying dead breaks, and he stopped
behind it, whilst Babi stopped on the right side slightly in front of
the golf. Sonamzi’s car lights were directly on the
golf
vehicle.
[10]
The plaintiff alighted from the rear passenger seat on the left hand
side of the golf vehicle
and pointed a firearm at Sonamzi and his
crew. They alighted from their vehicle and fired several shots at the
plaintiff to defend
themselves, as their lives were in danger. On
seeing that they were shooting at him, the plaintiff threw the
firearm on the side.
At that point Sonamzi called on his colleagues
to stop shooting. From his firearm he fired three shots and his
colleagues fired
several shots as well. The plaintiff was struck on
the arm and on the left upper hip or waist area. Sonamzi couldn’t
say
whether or not he was the one who struck the plaintiff, but
confirmed that the plaintiff did not fire any shots at them (the
police).
[11]
He placed the plaintiff under arrest, explained his constitutional
rights, and took him to the
police station where he was detained.
According to him the reasons for detaining the plaintiff were - so
that they could verify
his address as he had committed a serious
offence (pointing of a firearm); he had breached the Covid-19
Regulations; they wanted
to verify his addr and they wanted to ensure
that he appears in court. Sonamzi took the firearm and placed it in
the SAP 13 register.
He could not say whether or not the plaintiff
did appear in court, or if his address was ever verified, as he
believed that that
was the function of the investigating officer. He
also had no knowledge of the whereabouts of the firearm at the time
of trial.
[12]
At the close of the defendant’s case, Mr Tsipa, for the
plaintiff, applied for judgment
in favour of the plaintiff without
leading any evidence for the plaintiff or closing the plaintiff’s
case. The application
was premised on a proposition similar to that
of absolution from the instance as provided for in terms of Rule 39
(6) of the Uniform
Rules of Court.
[13]
This Rule provides that a defendant may apply for absolution from the
instance in instances where,
at the close of the plaintiff’s
case, the evidence led is such that no court, applying its mind
reasonably to such evidence,
could find for the plaintiff.
[4]
The contention by Mr Tsipa was that the defendant had failed to
discharge the onus resting on it on the matter and therefore the
plaintiff was entitled to judgment in his favour. I asked both
parties to address me on whether such a proposition can be applicable
in circumstances where the defendant bore the onus of proof. Both
parties addressed me, I am indebted to Mr Tsipa for the extensive
heads submitted in this regard.
[14]
It turns out there is a plethora of authorities in this regard, with
its origins stemming from
an old case of 1908.
[5]
According
to the authorities I was referred to, this application is similar to
that of absolution from the instance where the plaintiff
has failed
to discharge its onus at the close of its case. Describing this
principle, Nkosi AJ stated the following in
Pather
v Minister of Police
[6]
:
‘
31.1…Plaintiff
is entitled to apply for judgment at the close of the Defendant’s
case without leading evidence and
without closing its case. It was
submitted on her behalf that the test to be applied is similar to
that of absolution from the
instance where a Plaintiff has not
discharged its onus. It was further submitted that if a Defendant
upon whom the onus of proof
rests has failed to lead such evidence in
discharge of that onus to the effect that a reasonable man could have
not come to the
conclusion that it might be accepted, the court would
be entitled to give judgment for the Plaintiff.
31.2 This proposition of
an application for judgment, where the Defendant bore the onus and
before the Plaintiff closing its case
or leading evidence, was
introduced in the old case of
Siko v Zonsa
1908 (T) 1013 where
the court held that it would be a useless (exercise) waste of time to
proceed with the matter further.
31.3 The
Siko
case
was confirmed as an applicable principle in the case of
Hodgkinson
v Fourie 1930
(TPD) 740 at page 743 where it was held as follows:
“At the close of the case of the one side upon whom the onus
lies, the
question which the judicial officer has to put to himself
is: Is there evidence on which a reasonable man might find for that
side”.’
[15]
On the strength of these authorities, I am persuaded that the
aforementioned principle is applicable
to the current matter. The
question that remains therefore is whether or not the defendant has
discharged the onus resting upon
it of establishing a
prima
facie
defence to the plaintiff’s claim. Put differently, the question
is whether or not the evidence tendered by the defendant
is such that
a court, applying its mind to such evidence reasonably, could find
for the defendant.
[7]
Analysis
[16]
In its amended plea, the defendant contends that the reason for the
arrest of the plaintiff was
because the police had a reasonable
suspicion that he had committed a schedule 1 offence. What is quite
striking in this regard
however, is that none of the offences the
plaintiff was suspected to have committed fall under schedule 1. The
listed offences
include contravening the Covid -19 Regulations, an
offence for which an admission of guilt was fixed, and for which the
plaintiff
was given a notice to appear in court, and pointing of a
firearm.
[17]
I pause here to mention that the manner in which the amended plea is
formulated makes it somewhat
difficult for one to follow. This
notwithstanding, it does specifically state, after listing the
suspected offences allegedly committed
by the plaintiff, that he was
arrested for suspicion of having committed a schedule 1 offence,
which falls under section 40(1)
of the Criminal Procedure Act.
[8]
I
have already mentioned that none of the listed offences fall under
schedule 1.
[18]
Babi could not give any useful evidence with regards to why the
plaintiff was arrested because
he allegedly did not see what had
transpired leading to the arrest of the plaintiff, a statement which
on its own I find quite
circumspect. His evidence is that he remained
in his vehicle even after having heard shots fired because he was
looking for his
phone. He did not see where the plaintiff was shot or
the firearm which was allegedly pointed by the plaintiff at the
police.
[19]
All the while he was the main person who was chasing the vehicle the
plaintiff was a passenger
in, and the one who called for back-up in
the chase, and yet, when the vehicle was stopped he seemed to have
other more pressing
things to do than focus on the vehicle he had
been chasing and its passengers. This I find highly improbable.
[20]
The only evidence this court has is the uncorroborated version of
Sonamzi. No reasons were advanced
as to why his crew member and the
other police officers at the scene, who were also allegedly pointed
with a firearm by the plaintiff,
and who also fired shots at the
plaintiff, were not called to corroborate Sonamzi’s evidence.
It begs mention that Sonamzi
was by far the most evasive and
unimpressive witness under cross examination. He would not answer
straightforward questions, requiring
that they be repeated over and
over, and taking long pauses before he could even answer. Some
questions he did not answer altogether.
[21]
His version is that when they alighted from their vehicle the
plaintiff was already out and pointing
his firearm at them. There was
no time to fire a warning shot or do anything because their lives
were in danger, hence he fired
at the plaintiff. This is contrary to
Babi’s evidence, who testified that before hearing the gun
shots, he heard Sonamzi
say ’put the gun down, put the gun
down’, which he believed was directed at the plaintiff,
although he never saw the
plaintiff carrying a gun. When confronted
with this evidence during cross-examination, Sonamzi’s response
was that he was
telling his colleagues to stop shooting after seeing
that the plaintiff had dropped his gun. He gives no further
explanation why
he had to shoot the plaintiff three times, when oh
his own version, the plaintiff dropped the firearm on seeing that the
police
were shooting at him.
[22]
The plaintiff’s version is that he never had or saw a firearm,
nor pointed one at the police
on the day in question. If one takes
Sonamzi’s evidence, that when they alighted from their vehicle,
the plaintiff was already
pointing them with a firearm, the relevant
question becomes: can it be said in the circumstances that their
lives were in imminent
danger and that there was nothing else they
could do except to shoot at the plaintiff. Further taking into
account that Sonamzi
alone shot the plaintiff three times and he
couldn’t even say the number of times his colleagues fired at
the plaintiff,
yet in all that time the plaintiff didn’t fire a
single shot at them. Also taking into account Babi’s evidence,
who
told the court that he heard Sonamzi tell the plaintiff to drop
the gun prior to hearing the gunshots, coupled with Sonamzi’s
evidence that the plaintiff dropped the gun when they started
shooting at him, and he had to tell his colleagues to stop shooting.
The answer to the latter question can only be in the negative.
[20]
With the poor quality of the evidence tendered in this matter, at
this point I have difficulty
even with accepting that a firearm was
indeed recovered at the scene on the day in question, given that the
only evidence before
this court in that regard is the say so of
Sonamzi, whose credibility I find quite questionable.
[21]
From the aforementioned, it is clear that the police officers cannot
be afforded the protection
enjoyed by one who acts in private
defence. They have failed to establish
prima facie
, on a
balance of probabilities that there was an unlawful attack which was
imminent on their lives, leaving them with no option
but to use
lethal force on the plaintiff.
[22]
Mr Mzileni for the defendant, sought to argue that the police were
empowered to use force in
effecting the arrest of the plaintiff in
terms of section 49(2) of the Criminal Procedure Act as amended
[9]
.
What this argument loses sight of is that that was not the pleaded
defence nor the evidence tendered by the witnesses. According
to the
plea and the evidence of Sonamzi, the plaintiff was shot because he
pointed a firearm at the police, not because he was
resisting arrest.
There is no evidence that there was any attempt to arrest the
plaintiff which the plaintiff, being aware of,
tried to resist.
[23]
Even if one was to accept that the police officers used force in
order to effect an arrest as
contemplated in the aforementioned
provisions, this would still not afford the police any protection as
the said provisions are
very clear that the force used must be
reasonably necessary and proportionate in the circumstances to
overcome the resistance or
to prevent the suspect from fleeing. That
was clearly not the case in the present matter.
[24]
It appears from the docket which was only presented to court on the
day of the trial, that although
the plaintiff was taken to court, the
matter was never enrolled and therefore the plaintiff never appeared
before a magistrate
in court. The reason the matter was never
enrolled appears from the investigation diary of the docket, where
the prosecutor is
enquiring as to who of the five suspects who were
in the vehicle pointed the police with a firearm. This I presume is
because,
in all the statements filed, including that of Sonamzi, none
of the police officers mention that the plaintiff was the person who
pointed them with a firearm. The statements indicate that all five
occupants were arrested, and yet only the plaintiff was registered
on
the docket and taken to court.
[25]
The version of the plaintiff is that he was arrested for failing to
confine himself indoors during
curfew, and he only learnt a day
before the trial commenced that he was also charged for pointing a
firearm. The SAP 14 attached
to the docket is also not helpful in
this regard because it is illegible and therefore one cannot tell who
the detainee was and
for what reason he/she was detained. It is also
worth noting that the plaintiff was never charged with unlawful
possession of a
firearm.
[26]
It
is trite that the defendant bears the onus establishing the
lawfulness of both the arrest and the detention on a balance of
probabilities.
[10]
The action
is based on the constitutional infraction of section 12(1) (a), in
that every individual has a right not to have their
liberty
arbitrarily deprived unreasonably and unjustifiably, or without just
cause.
[11]
[26]
I have stated elsewhere in this judgment that whilst the defendant’s
amended plea is not
so well formulated, what is clear therefrom is
that the plaintiff was arrested because the police believed that he
had committed
a schedule 1 offence. This was further supported by the
evidence tendered before court. I have also mentioned that none of
the
offences with which the plaintiff was charged fell under schedule
1. It follows therefore that the jurisdictional requirements for
an
arrest without a warrant in terms of section 40 (1)(b)) of the
Criminal Procedure Act were not met in this matter.
[27]
In addition, the poor quality of the evidence that was tendered by
the two police officers who
testified in this matter exacerbates the
situation even further. In fact, the only with the evidence
pertaining to the arrest and
detention before this court is that of
Sonamzi, because Babi did everything in his powers to disassociate
himself with the activities
at the scene of arrest, such that his
evidence could be of no assistance to this court, except to create
the contradictions already
referred to above.
[28]
Having failed to meet the jurisdictional requirements for an arrest
without a warrant, it follows
that I can find no justification for
the police arresting the plaintiff without a warrant. With that, it
follows that it cannot
be said that the subsequent detention of the
plaintiff was lawful. Given all the above, coupled with the poor
quality of the evidence
tendered by the defendant’s witnesses,
I cannot find that the defendant has discharged the onus resting on
it of establishing
on a balance of probabilities that they have a
prima
facie defence
to the plaintiff’s claim.
[29
Given the poor nature of the police evidence, the contradictions and
inconsistencies inherent
therein, I even find it questionable if the
plaintiff ever pointed any firearm at the police. Especially in light
of the fact that
Babi, the initial chaser and initial suspicion
formulator never even saw the firearm in question. The firearm was
never presented
in court, in fact, even the docket handed to court
during the trial did not have a copy of the SAP 13 register to
indicate the
presence of the said firearm.
[30]
None of the witness statements in the docket, including that of
Sonamzi, mention the plaintiff
as the person who pointed them with a
firearm, hence the matter could not even be enrolled in court. I can
therefore find no justification
for the police shooting the plaintiff
on the day in question.
[31]
Having stated all the above, I cannot find that any reasonable court
can find for the defendant
in this matter. Under these circumstances,
it is therefore unnecessary for the plaintiff to lead any evidence or
even close their
case in the matter. Accordingly, judgment is granted
in favour of the plaintiff.
[32]
On the issue of costs, Mr Tsatsi argued that a punitive cost order be
awarded to display the
court’s displeasure at the conduct of
the defendant. In particular, in not settling the matter timeously
and thereby causing
unnecessary delay and costs. I am, however, not
persuaded that a punitive cost order is warranted on the facts of
this matter.
I find it of no consequence that the defendant amended
their plea on the doorstep of the trial, or that they did not settle
the
matter timeously. They followed the matter through to trial
following on their instructions, to show that the plea was not merely
intended to delay the matter, but to actually challenge it at trial.
The plaintiff also amended its particulars of claim as late
as July
2022 in the matter. I find no reason why costs should not follow the
result.
Order
[33]
In the premise, the following order is made:
(a)
The defendant is held liable for 100% of
any proved damages incurred by the plaintiff as a result of his
arrest, detention, and
assault by the members of the defendant on 26
January 2021.
(b)
The defendant is ordered to pay the
plaintiff’s costs of this action.
V
P NONCEMBU
JUDGE OF THE HIGH
COURT
APPEARANCES
Counsel
for the Plaintiff
:
N/A
Attorneys
for the Plaintiff : Y Tsipa
Attorneys
C/O Makali Attorneys Inc
No. 23 Deliville Road
Mthatha
Counsel
for the Defendant :
S Mzileni
Instructed
by
: Office of the State
Attorney
Mthatha
Date
of hearing
: 04 August 2022
Date
judgment delivered : 08
September 2022
[1]
See pre-trial minute dated 26 July 2022.
[2]
Act 51 of 1977.
[3]
In terms of the National Disaster Regulations.
[4]
See
Claude
Neon Lights (SA) Ltd v Daniel
[1976] 4 ALL SA 387 (A).
[5]
Siko v
Zonsa
1908 (T) 1013.
[6]
(
14512/13)
[2016] ZAGPPHC 215 (31 March 2016) at para 31.1 – 31.3. See
also
Moeng
v Minister of Police
(CIVAPP3/2016[2016] ZANWHC 49 (30 June 2016).
[7]
See
Claud
Neon Lights (SA) Ltd v Daniel
[1976] 4 ALL SA 387 (A).
[8]
Act 51 of 1977.
[9]
Act 51 of 1977, as amended by the
Judicial Matters Amendment Act,
1998
.
[10]
See
Minister
of Law and Order & Others v Hurley & Another
,
1986
(3) SA 568
(A) at 589 E - F and
Minister
van Wet & Order v Matshoba
,
1990 (1) SA 280
(A) at 284 E - H and 286 B - C
.
[11]
See
Zealand
v Minister of Justice and Constitutional Development & Another
,
[2008] ZACC 3
;
2008
(4)
SA
458
(CC) at paras 24, 25 and 35.
A