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[2021] ZAGPJHC 140
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Siphika v The Minister of Police (40039/2017) [2021] ZAGPJHC 140 (10 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NUMBER:
40039/2017
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
DATE: 10/08/21
In the matter between: -
XOLANI
SIPHIKA
Plaintiff
and
THE MINISTER OF
POLICE
Defendant
JUDGMENT
DELIVERED
:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e mail and
publication
on CaseLines. The date and time for hand-down is deemed
to be 10h00 on 10 August 2021.
F. BEZUIDENHOUT AJ:
INTRODUCTION
[1]
This is an application for leave to appeal against my judgment of
1 January 2021.
For convenience I refer to the applicant
for leave as the plaintiff and to the respondent as the defendant.
[2]
The application for leave to appeal (“
the application”
)
is dated the 5
th
of March 2021. Both the
plaintiff and the defendant submitted written heads of argument prior
to the oral virtual hearing
of the application on 17 March 2021.
[3]
The application was filed out of time and the first prayer to the
application
is for an order condoning the late filing. There was no
substantive application for condonation, however, the defendant
indicated
that although it did not formally oppose the application
for condonation, the ordinary principles applicable to condonation
applications,
that an applicant must show reasonable prospects of
success in the main dispute, should apply.
[4]
Although not a model of clarity by any measure, the application
essentially
contains eight grounds of appeal, and I summarize them as
follows: -
First ground
[a]
The
court was not faced with two mutually destructive versions from the
parties in that the “
version
led by the [plaintiff] as a witness should have been preferred at
this instance as he was a
credible
and competent witness
whose version was supported by statements and testimony from the
[defendant’s] witnesses… and the unavailability of
crucial evidence which could support his case.”
[1]
(emphasis
added)
Second ground
[b]
The court erred in common cause facts by stating at paragraph 9(p) of
the judgment
that: -
“
The
crowd was angry and violent and demanded the release of the suspect
so that they could kill him. They started attacking the
vehicle.”
[2]
Third ground
[c]
I
misdirected myself in my findings “
and
erred in placing value, weight and relevance on irrelevant or
immaterial information from the plaintiff and yet neglected to
do the
same on crucial evidence from the defendant”
.
[3]
Fourth ground
[d]
The
court correctly pointed to the case of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell and Cie SA and
Others
in her analysis of the evidence “
however,
the court incorrectly applied the case to the facts
”.
[4]
Fifth ground
[e]
I
erred in not considering the fact that pleadings “
must
be read as a whole and not in isolation. The fact that there may be
inconsistency, or the fact that pleadings were drafted
a certain way
does not make the [plaintiff’s] particulars and/or version
defective”.
[5]
Sixth ground
[f]
I
did not exercise my discretion rationally and objectively in that I
conflated the issues and therefore the requirements for a
legal duty
and the duty of care.
[6]
Seventh ground
[g]
The
court erred in its assessment of the defences put up by the defendant
in that there was no imminent or commenced act of attack
on either of
the members of the South African Police Service (“
SAPS”)
.
I further failed in my analysis of the Act to take into consideration
the requirements of a private self-defence.
[7]
Eighth ground
[h]
In
both the defences raised by the defendant the court failed to analyse
the excessiveness of the force used by the member of the
defendant
vis-à-vis the circumstances the defendant was allegedly faced
with. In this regard the court erred in not assessing
the
proportionality of the degree of force used in relation to the
proportionality or the seriousness of the offence in respect
of which
it is alleged that the member of the SAPS shot the plaintiff.
[8]
PRINCIPLES GOVERNING
APPLICATIONS FOR LEAVE TO APPEAL
[5]
Before dealing with the grounds of appeal, it is necessary to have
regard to
the basic principles governing applications for leave to
appeal.
[6]
In terms of the provisions of
section 17(1)
of the
Superior
Courts Act, 2013
, leave to appeal will only be granted if the court
is of the opinion that: -
“
(a)
(i) the appeal would
have a reasonable prospect of
success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a)
; and
(c)
whether the decision sought to be appealed does not dispose of all
the issues in the
case, the appeal would lead to a just and prompt
resolution of the real issue between the parties.”
[7]
What
emerges from
section 17(1)
is that the threshold to grant a party
leave to appeal has been raised. It is now only granted in the
circumstances set out and
is deduced from the word “
only”
used in the section. In
Mont
Chevaux Trust v Tina Goosen and 18 Others
[9]
Bertelsman J held as follows: -
“
It is clear
that the threshold for granting leave to appeal against a judgment of
a high court has been raised in the new Act. The
former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different conclusion,
see Van Heerden v
Cronwright and Others
1985 (2) SA 342
(T) at 343H. The use of the
word ‘would’ in the new statute indicates a measure or
certainty that another court will
differ from the court whose
judgment is sought to be appealed against.”
[8]
It
has been repeatedly held in the analysis of the test that it involves
considerations as to whether “
there
is a
reasonable
prospect
that another court could come to a different conclusion
”
[10]
and not whether there is a
possibility
that another court could come to a different conclusion.
[9]
The
test therefore is whether there is a reasonable prospect that another
court could come to a different conclusion. In
Westinghouse
Brake and Equipment (Pty) Ltd v Builder Engineering (Pty) Ltd
[11]
the Appeal Court (as it then was) reiterated the general principle
that in order for an applicant for leave to appeal to succeed,
the
applicant must demonstrate that it has a reasonable prospect of
success on appeal. It was also stated that an appeal would
be allowed
where the matter is of great importance or where the matter is of
public importance whether the court is of the view
the decision might
affect other questions.
[10]
The
procedural and substantive importance of applying for leave to appeal
cannot be overstated. The Supreme Court of Appeal held
in
Dexgroup
(Pty) Ltd v Trustco Group
[12]
that: -
“
The need to
obtain leave to appeal is a valuable tool in ensuring that scarce
judicial resources are not spent on appeals that lack
merit. It
should, in this case, have been deployed by refusing leave to
appeal.”
[11]
It is against this legal backdrop that I consider the plaintiff’s
application for leave.
THE
MAIN ARGUMENTS
[12]
I am grateful to both counsel for the written heads of argument. They
have been of great assistance
in crystalising the main grounds of
appeal.
Preliminary
[13]
The
defendant submitted that the application is fatally defective. It was
submitted that an applicant in an application for leave
must clearly
and succinctly set out his grounds of appeal in unambiguous terms so
as to enable the court and the respondent to
be fully and properly
informed of the case which the applicant seeks to make out and which
the respondent is to meet in opposition.
In support of this
submission I was referred to
Songono
v Minister of Law and Order
[13]
where Leach J (as he then was) held as follows: -
“
In
attempted compliance … the applicant filed a document headed
‘Application for leave to appeal’, in which he
purported
to set out the grounds upon which leave to appeal was to be sought.
These so called ‘grounds’ constitute
a diatribe of
some 17 pages criticising the judgment, analysing (at times
incorrectly) certain of the evidence and the findings
made, putting
forward certain submissions and quoting various authorities. This
lengthy, convoluted and at times disjointed criticism
of the judgment
did not clearly and succinctly spell out the grounds upon which leave
to appeal was sought in clear and unambiguous
terms…”
[14]
“
Accordingly,
insofar as rule 49(3) is concerned, it has been held that grounds of
appeal are bad if they are so widely expressed
that it leaves the
appellant free to canvas every finding of fact and every ruling of
the law made by the court a quo, or if they
specify the findings of
fact or rulings of law appealed against so vaguely as to be of no
value either to the court or to the respondent…”
[15]
[14]
It is apposite that the court in
Songono
stated that: -
“
The
point is that the notice must clearly set out the grounds and it is
not for the court to have to analyse a lengthy document
in an attempt
to establish what grounds the applicant intended to rely upon but did
not clearly set out. On this basis alone the
application seems to me
to be fatally defective and must be dismissed.”
[16]
[15]
I agree with the defendant that the application falls short of the
requirements of rule 49(3).
A consideration of the plaintiff’s
heads of argument filed in support of the application for leave
illustrates the deficiencies
of the application. Whilst the
application does not contain a ground for leave premises on the
existence of conflicting judgments
in the application itself,
Mr Moloi appearing for the plaintiff included in his heads of
argument such a ground which he submitted,
if found to be correct,
would justify the granting of leave to appeal.
[16]
In any event, even if I am incorrect in reaching the conclusion that
the application is fatally
defective, for reasons that will be dealt
with later in this judgment, there does not seem to me to be a
reasonable prospect of
another court finding that the plaintiff is
entitled to damages on his claim for reasons that will be dealt with
later in this
judgment.
Plaintiff’s
argument
[17]
Mr Moloi, appearing for the plaintiff, limited his argument to
two main points, which was
a very sensible approach in my view.
[18]
The
first point argued by Mr Moloi is that my judgment is in
conflict with the decision by the Supreme Court of Appeal in
Govender
v Minister of Safety and Security
.
[17]
It was argued that the facts in
Govender
where the unarmed plaintiff was shot in the back from behind by
members of the SAPS, were not too dissimilar to the present matter.
The Supreme Court of Appeal dealt with the question of how the
interest of the state and the rights of the fleeing suspect can
be
brought into balance and ultimately concluded that the answer lies in
applying the constitutional test, namely when a statutory
provision
allowing the wounding of a fleeing suspect under certain
circumstances would be reasonable and justifiable in an open
and
democratic society based on freedom and equality.
[19]
Moreover,
the Supreme Court of Appeal considered the proportionality between
the degree of force used and the seriousness of the
crime.
[18]
[20]
Secondly,
Mr Moloi argued the point of causation and in this regard relied
on
Lee
v Minister of Correctional Services
.
[19]
Mr Moloi argued that according to
Lee
,
the enquiry to determine a causal link is whether “
one
fact follows from another
”.
I might add that the Supreme Court of Appeal in
Lee
also pointed out that the test is not without problems, especially
when determining whether a specific omission caused a certain
consequence, which in my view is an acritical consideration in this
matter.
[20]
[21]
The Supreme Court of Appeal went on to explain the application of the
test in the case of a positive
act and in the case of an omission: -
“
[41] In the
case of ‘positive’ conduct or commission on the part of
the defendant, the conduct is mentally removed to
determine whether
the relevant consequence would still have resulted. However, in the
case of an omission the but for rest requires
that a hypothetical
positive act be inserted in the particular set of
facts
,
the so-called mental removal of the defendant’s omission. This
means that reasonable conduct of the defendant would be inserted
into
the set of facts. However, as will be shown in detail later the law
regarding the application of the test in positive acts
and omission
cases is not inflexible
. There are cases in
which the strict application of the rule would result in an
injustice, hence a
requirement for flexibility
.
The other reason is because it is not always easy to draw the line
between a positive act and an omission. Indeed there is no
magic
formula by which one can generally establish a causal nexus. The
existence of the nexus will be dependent on the
facts
of a particular case.”
(emphasis added)
[22]
Notably, the Supreme Court of Appeal held that the application of the
test is dependent on a
“particular set of facts” and that
the test ought not to be applied inflexibly.
[23]
In applying the test to the matter at hand, Mr Moloi argued that
once the positive conduct
or commission on the part of the defendant
is removed, the question is whether the relevant consequence would
still have resulted.
That, Mr Moloi argued, would be the end of
the enquiry and it would not be necessary to consider whether the
plaintiff caused
the harm to befall him or not.
[24]
Mr Moloi touched on the issue of legal duty and the duty of care
and placed emphasis on
the foreseeability formula for the
determination of a duty. In this regard two separate but related
enquiries would ensue, namely: -
[a]
Would a reasonable person in the same circumstances have foreseen the
possibility
of harm occurring to the plaintiff and, if the answer is
in the affirmative,
[b]
Would a reasonable person have taken measures to guard against the
occurrence
of such foreseeable harm.
Defendant’s
argument
[25]
Mr Mbatha, in addition to the preliminary point already
mentioned, argued that
Govender
does not apply to this matter.
In fact, so the argument went, the two cases dealt with completely
different and particular sets
of facts.
[26]
Moreover, Mr Mbatha argued that the plaintiff lost sight of two
critical issues, namely
that in this matter two grounds justifying
the shots were raised, namely self-defence and necessity, whereas in
Govender
no such defences were raised because the SAPS was
faced with a fleeing suspect who was shot by a member of the SAPS
while in pursuit.
In
Govender
members of the SAPS were not
accosted or threatened by a crowd and there was also no struggle over
the possession and control of
a police officer’s firearm.
[27]
On the issue of causation, the defendant’s argument was as
follows: in stark contrast with
Govender
, the two police
officers in this matter were defending themselves against a crowd
consisting of 100 members and Detective Rapoone
was confronted with a
scenario that if he was to merely relinquish possession over the
firearm, his action could have caused serious
injury or even death to
a number of crowd members, considering the close proximity. Mr Mbatha
therefore argued that the proportionality
and the degree of force
that was used in the circumstances was reasonable and justifiable.
[28]
Mr Mbatha dealt with various of the additional grounds of appeal
contained in the application.
I summarize them here: -
[a]
The plaintiff asserts that he was a “
credible and competent
witness”
. It was submitted on behalf of the defendant that
a distinction must be drawn between a competent and a reliable
witness. Whereas
the plaintiff was a competent witness in that he was
able to understand and appreciate the nature and obligation of an
oath and
the proceedings, he was not a reliable witness as his
testimony cannot be believed.
[b]
The court was faced with two conflicting versions, namely the version
by the
plaintiff vis-à-vis the versions by the defendant’s
two witnesses and in a situation like that the court is bound to
make
findings on the credibility of various factual witnesses.
[c]
The plaintiff states that the court erred in common cause facts by
stating
that the crowd was angry and violent and that this was not
the evidence of witnesses, especially the plaintiff. The defendant
submitted
that the judgment is replete with evidence by the plaintiff
as well as Constable Segage regarding the angry crowd who wanted to
take the law into their own hands. The defendant confirmed that the
plaintiff himself used the word “
kill”
to explain
the motive of the crowd. Therefore, the only logical conclusion could
be, so the defendant argued, was that the motive
of the crowd was to
kill the suspect and that they could not have been anything but angry
and volatile at the time
[d]
It is one of the plaintiff’s grounds of appeal that I placed
unnecessary
weight on the pleadings. However, the defendant submitted
that during cross-examination the plaintiff even disputed those facts
that were in fact pleaded in the particulars of claim which
demonstrates the stark contrast between the plaintiff’s oral
evidence at trial and the facts advanced in the particulars of claim,
also bearing in mind that the particulars of claim had been
amended
shortly before trial.
[29]
Regarding plaintiff’s ground that I incorrectly applied the
principles enunciated in
Stellenbosch Farmers
, the defendant
submitted that the plaintiff has failed to indicate how exactly I
incorrectly applied these principles.
DELIBERATION
Interference with
factual findings
[30]
It
is trite that where there has been no misdirection on fact by the
trial judge, the presumption is that her conclusion is correct
and
the appeal court will not interfere. In such instance the appeal
court will only reverse the judgment or order where it is
convinced
that the trial judge was wrong. So, for instance, in
Santam
Bpk v Biddulph
[21]
Zulman JA expressed the approach as being that while an appeal
court “
is
generally reluctant to disturb findings which depend on credibility
it is trite that it will do so where such findings are plainly
wrong”
.
[31]
However, if the appeal court is merely left in doubt as to the
correctness of the conclusion,
then it will uphold it.
[32]
The
highest courts have held before that an appeal court should not seek
anxiously to discover reasons adverse to the conclusions
of the trial
judge as no judgment can ever be perfect and all embracing. It
also does not necessarily follow that, because
something had not been
mentioned by the trial judge, that it has not been considered.
[22]
[33]
In
this regard the Supreme Court of Appeal found as follows in
Fourie
v FirstRand Bank Ltd and Another N.O.
:
[23]
-
“
The time
honoured approach by this court is, in sum, that, absent any
misdirections on the part of the trial court, a court of appeal
is
not permitted to interfere with findings of fact (see, for example,
R v Dhlumayo at 705-706).”
[34]
There can therefore be no doubt that it is a well-known principle of
our law that the facts or
findings of the trial court are presumed to
be correct, unless a misdirection on the part of the trial judge can
be pointed to
in order to justify interference with those findings on
appeal.
[35]
When reading my judgment against the backdrop of the application and
both the written and oral
submissions submitted by counsel, I am of
the view that it cannot confidently be argued by the plaintiff that I
committed a misdirection
on the facts. In my analysis of the evidence
I found various improbabilities in the version of the plaintiff and
although I do
not intend to repeat them in this judgment, a few are
deserving of emphasis: -
[a]
The plaintiff testified that there was no blood on or around the
deceased who
was stabbed, while two witnesses for the defendant
testified that the deceased was lying in a pool of blood;
[b]
The plaintiff gave evidence that approximately 100 community
members were
angry at the death of the deceased and demanded the
handing over of the suspect for vigilante justice, however, the
plaintiff,
a cousin of the deceased, was neither angry nor
revengeful;
[c]
The plaintiff gave evidence that the murder scene was unsecured but
could
not explain the presence of two police officers at the murder
scene, namely Thibela and Malatjie;
[d]
The plaintiff on his version did not remain at the scene where he was
unlawfully
shot by a police officer in the presence of various eye
witnesses who could support his version, and instead chose to leave
the
scene where he was assaulted and walked home – behaviour
that is at odds with an innocent victim and bystander who alleges
that he was unlawfully assaulted by the police.
[36]
On the issue of causation and proportionality,
Govender
, in my
view, does not assist the plaintiff. As already pointed out, the
facts in
Govender
are completely dissimilar to the facts in
this matter. In this regard a critical distinguishing fact is that in
Govender
the police officer deliberately shot at the fleeing
suspect, whereas the uncontested evidence of the police officers in
this matter
is that the shot was fired during a struggle over the
possession of Detective Rapoone’s firearm. Here the evidence of
the
plaintiff is critical. He alleges that he heard people saying:
“
He is going to shoot you”
, whereafter the
plaintiff heard only one shot fired but did not see it being fired.
Moreover, Detective Rapoone’s evidence
that he was engaged in a
struggle over the possession of the firearm, was never challenged
under cross-examination.
CONCLUSION
[37]
I am therefore of the view that not only is the application for leave
to appeal fatally defective,
but that there is no prospect of success
on any of the points which Mr Moloi felt could be gleaned from
the notice.
[38]
The application is therefore dismissed with costs.
F BEZUIDENHOUT
ACTING JUDGE OF
THE HIGH COURT
DATE OF
HEARING:
17 March 2021
Date of
Judgment:
10 August 2021
APPEARANCES:
On behalf of
plaintiff:
Adv T Moloi
Cell: 076-318-4344
moloi@rsabar.com
Instructed by:
T Matubatuba Attorneys Incorporated
Tel: (011) 825-1161
tsepiso@matubatubaattorneys.co.za
On behalf of
defendant:
Adv H M Mbatha
Cell: 082-422-4086
hmbatha01@gmail.com
Instructed by:
The State Attorney
Tel: (011) 330-7674
tmpulo@justice.gov.za
[1]
Application
for leave to appeal, paragraph 3, CaseLines pp 075-2 and 075-3.
[2]
Application
for leave to appeal, paragraph 6, CaseLines p 075-4.
[3]
Application
for leave to appeal, paragraph 7, CaseLines p 075-4.
[4]
Application
for leave to appeal, paragraph 9, CaseLines p 075-7.
[5]
Application
for leave to appeal, paragraph 11, CaseLines pp 075-8 and
075-9.
[6]
Application
for leave to appeal, paragraphs 12 to 17, CaseLines pp 075-9
to
075-11.
[7]
Application
for leave to appeal, paragraphs 18, 18.1 and 18.2, CaseLines
pp
075-11 and 075 12.
[8]
Application
for leave to appeal, paragraphs 19 and 20, CaseLines p 075-12.
[9]
2014 JDR 2325
(LCC) paragraph [6].
[10]
Woolworths
Ltd v Matthews
1999 [3] BLLR 288 (LC).
[11]
1986 (2) SA 555
(A).
[12]
2013 (6) SA 520
(SCA) paragraph [24].
[13]
1996 (4) SA 384 (E)
[14]
At p 385C - E.
[15]
At p 385E –
H.
[16]
At p 386A.
[17]
2001 (4) SA 273
(SCA).
[18]
Govender
(
supra
)
at paragraph [16].
[19]
2013 (2) SA 144
(CC).
[20]
Lee
(s
upra
)
at paragraph [40].
[21]
2004 (5) SA 586
(SCA) at paragraph [5].
[22]
R
v Dhlumayo and Another
1948 (2) SA 667
(A) at 706.
[23]
2013 (1) SA 204
(SCA) at paragraph [14], p 210.