About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2019
>>
[2019] ZAECMHC 20
|
|
Demesha v Minister of Police (174/17) [2019] ZAECMHC 20 (30 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – MTHATHA
CASE NO: 174/17
In
the matter between:
NOMAPHELO
CYNTHIA DEMESHA
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
MBABANE
AJ
Introduction
[1]
This action was instituted pursuant to the tragic death of Silulami
Demesha (the deceased)
who was shot and killed near Nobonke Café
at Kundlunkulu Locality on 19 October 2016. On that fateful morning,
the police
officers from Mqanduli Police Station were following a
lead on the suspects who were involved in a robbery at or near
Qokolweni
Locality, Mqanduli and the information they received led
them to Kundlunkulu Locality.
[2]
The salient facts surrounding the death of the deceased are in
dispute as the plaintiff
on the one hand alleges that the deceased
was shot and killed by the police and the police on the other allege
that the deceased
could have been killed by an unknown assailant who
was running away from them.
[3]
The plaintiff (the deceased’s widow) instituted these
proceedings claiming loss
of support against the Minister of Police
arising out of the death of the deceased. She sues in her
personal and representative
capacity as foster parent and legal
guardian of the minor children, Yonelani Demesha born in 2001 and
Imange Demesha born in 2007.
[4]
The pre-trial minute reveal that the following is common cause:
(a)
That the deceased died on 19 October 2016;
(b)
That he died from a gunshot wound at or near Nobonke Café,
Kundlunkulu Locality,
Mqanduli.
(c)
That the deceased was:
(i)
the plaintiff’s husband, and had a legal duty to support her;
(ii)
the natural father of and had a legal duty to support both Yonelani
and Imange Demesha;
(iii)
self-employed; and
(iv)
able to and discharged his legal duty to support the plaintiff,
Yonelani, and Imange.
[5]
The plaintiff in the particulars of claim alleges that on the 19
th
October 2016 and at or near Nobonke Café, Kundlunkulu
Locality, Mqanduli, members of the SAPS whose full names, further
particulars and identities are not known to the plaintiff but who, at
all material times were acting within the course and scope
of their
employment as members of the SAPS shot and murdered the deceased.
[6]
The defendant pleaded as follows:
“
On 19 October
2016, members of crime prevention unit in the employ of the defendant
were doing crime prevention duties at Mqanduli
district within their
precinct. They were dispatched by the 10111 office an office
responsible to dispatch all members in the employ
of the defendant in
emergency cases, but at the time there was an imminent armed robbery
at Mahodini location, Mahodini store within
the policing precinct of
Ngangelizwe Police Station, Mthatha and the Cas number was opened
therein.
On arrival at Mthebe
location a locality within Mqanduli they met members of Mthatha
Flying Squad whom they describe[d] the culprits
according to the
information at their disposal and further inform them that such
suspects have taken the direction of Ndlunkulu
location.
These members proceeded
to Ndlunkulu location. Upon reaching Nobonke store, they saw a man
leaving the shop with the same description
of another suspect wearing
[beige] pants and black jacket, such identity was conveyed by flying
squad members.
The primary rationale of
approaching the shop was just to check, or instincts that there might
be a group of people either enjoying
themselves by liquor.
The police start[ed]
shouting him to stop but resisted such a call by drawing up a firearm
and opened fire against members of the
South African Police Services.
There was a cross fire between this man and the members of the
defendant. The man managed to flee
and fled to the river valley
surrounded by the hills. Upon chasing the suspect, the police
found that there is an old man
lying on the road.
The members of the South
African Police Services start[ed] focusing on the deceased, calling
the other police and members of Independent
Police Investigative
[Directorate] (“IPID”) to execute their duties.
The exact cause of death
of the deceased is not known by the defendant, in the event that
there was a crossfire the defendant bears
no knowledge of the cause
of death.”
[7]
At the commencement of the trial, the parties made a joint
application, which was
granted, in terms of rule 33(4) of the Uniform
Rules for the separation of the issue of liability and quantum, with
liability falling
to be dealt with first and the issue of quantum
standing over for determination at a later stage.
[8]
Seeing that the defendant denies that the deceased was shot and
killed by the members
of the South African Police Services, it became
common case that the onus of proof rests with the plaintiff.
The
Plaintiff’s case through the evidence
[9]
The plaintiff called the evidence of one witness, Wandile Malamba
(“Malamba”).
Malamba testified that he knows the
deceased and they are form the same locality. He further
testified that the deceased
was shot at the back by a coloured
policeman. He described the policeman who shot the deceased as
light in complexion.
At the time of the incident, he and the
deceased were walking in opposite directions. The deceased was
about 12 paces from
him at the time he was shot and the policeman who
shot him was about 7 paces from the deceased. He testified that the
weather was
sunny, and it was at about 11:30 in the morning when the
incident occurred, and as such he could see clearly. He further
testified that the policeman who shot the deceased was coming from
the shop approaching the deceased slightly on the side from the
back. The deceased was carrying a bottle of brandy and
medication from the clinic at the time. He was not running but
walking towards him. Malamba further testified that after
hearing gun shot and seeing the deceased falling, he ran to the
shop
and he met some of the local men to whom he narrated about the
shooting of the deceased. He further testified that the people
at the
shop thought that it was Schimfithi that was being shot (Schimfithi
is apparently known as a ‘rascal’ in that
community).
He corrected them and advised them that the police did not shoot
Schimfithi but the deceased. They then
attempted to get closer
to the scene where the deceased was, but the police refused them
access to the scene. He wanted to show
the men from the shop that the
person who was shot was the deceased and not Schimfithi. They used
another route and subsequently
managed to get closer to where the
deceased was lying and they all saw that it was the deceased, not
Schimfithi, who was shot and
killed. He further testified that
afterwards, the policeman who shot at the deceased, whilst smoking a
cigarette, told the community
members that he shot at the wrong
person. He further testified that there were three police offices,
two of which were male officers
and the other one was female.
They were all in police uniform.
[10]
Under cross examination, it was put to Malamba that it will be
disputed that the person he described
as a coloured policeman shot at
the deceased. Malamba stood firm on his version that it was the
coloured policeman that shot
and killed the deceased. It was
further put to Malamba that the police were chasing after a suspect
and that the suspect
opened fire towards them. Malamba disputed
that and testified that the suspect they were looking for was not the
deceased.
He added that the police were not telling the truth
because the deceased did not shoot at anyone but instead, it is the
police
that shot at him. He disputed the proposition that was put to
him that there was a shooting between the suspect who was running
away and the police. He confirmed that he did not see Schimfithi on
that day, but he was certain that there was no shooting between
the
police and an unknown assailant.
The
Defendant’s case through the evidence
[11]
The defence called three witnesses. The first witness called
was Sgt. Hazron Warren Livers
(“Livers”). He testified
that he is a sergeant employed in the South African Police Services.
He started working
at Mqanduli Police station from 2006 and was
transferred to Mthatha Flying Squad unit from 01 April 2018.
[12]
Livers testified that on 19 October 2016, he was patrolling with
constable Mbana and constable
Tofu. Whilst they were
patrolling, they received a report that a robbery was in progress at
Mahodini bottle store and that
the suspects were armed. On the
way to Qokolweni, they met their colleagues from the flying squad
unit stationed at Mthatha
who gave them full description of the four
suspects. They (Livers and two other officers) then proceeded
down the valley
to check around the vicinity where the robbery took
place, and they met two gentlemen who informed them that they saw
four suspects
running towards the direction of Ndlunkulu locality.
They then drove towards the shop in Ndlunkulu and patrolled that
area.
They entered into the yard of Nobonke store and it was at
that time that they saw a male who was wearing clothes that fitted
the
description that was given to them. Livers decided to
alight from the vehicle and to follow that suspect on foot. The
suspect went around the store and whilst Livers was approaching the
corner, the suspect started shooting at him. He lied
down and
rolled on the grass and fired back at the suspect. The suspect
went through the hole on the fence of the shop and
ran across the
road. He was running and firing shots at all directions.
After the suspect disappeared, Constable Tofu
came to him and told
him that someone was shot up the road and they all went to him trying
to assist. They called an ambulance
and also informed the
Commander who arrived shortly followed by the ambulance. IPID
was also informed about the incident.
Their firearms were
booked in and taken for ballistic tests. Livers disputed the
evidence of Malamba and testified that he
was inside the yard and he
did not shoot the deceased. He further labelled Malamba a drug
addict whom he saw smoking dagga
when the IPID was taking statements.
Livers confirmed that he was the only coloured police officer that
was there. He further
denied that he told the community members
that he shot at the wrong person. He stated that he cannot remember
whether he was informed
about the mischievous Schimfithi, but the
person who ran away fitted the description that was given for the
shop robbers. He concluded
by stating that he does not know who shot
the deceased, but he is certain that he is not the one who shot him.
[13]
During cross examination, he stated that he does not know that the
mandate of IPID is to investigate
wrongful and criminal conduct
reported about the police. It was also put to him that the reasons
for the confiscation of their
firearms is that they were investigated
for shooting and killing the deceased. He stated that it is a
standard procedure
that if a person is shot the IPID gets involved.
He further advised that his firearm is not linked to the death of the
deceased
as per the ballistic report. It was however put to him that
there is nothing in the ballistic report that says specifically that
one of the bullets that were tested was found from the deceased body.
Livers replied by stating that he cannot comment to that
because he
is not a ballistic expert.
[14]
Livers was also probed about the description of the suspect that was
given by the members of
the flying squad. He stated that he cannot
remember what he wrote in his statement, but he cannot dispute that
the description
that was given to him is that one of the suspects was
wearing black jacket and beige trousers.
[15]
The photo album was also shown to Livers and specific reference was
made to photos 5,6,7, and
8 which depicted photos of the lifeless
body of the deceased wearing black jacket and beige pants. He stated
that the deceased
was far away from the shop, and he denied that he
shot the deceased and that he was responsible for his death.
Livers was
also asked about the alleged suspect whom he was chasing
as to what happened to him. He stated that they decided not to
pursue
the suspect anymore but to assist the deceased by calling for
help. It was put to Livers that the only reason he did not
chase this alleged suspect is that there was no other suspect.
He disagreed.
[16]
The second witness called was Constable Bongeka Astra Mbana.
She testified that she is
employed as a police officer at Mqanduli
police station. She stated that on 19 October 2016 she was on
duty with Livers and
constable Tofu. Her testimony is the same as the
one of Livers relating to what happened before they went to Ndlunkulu
locality.
She confirmed that they were given the full details
of the robbery and description of the suspects by the members of the
flying
squad. They proceeded towards Ndlunkulu, and when they were
about to reach the shop, they saw someone coming out of the shop who
fitted the description that was given to them by the members of the
flying squad. Livers alighted from the police vehicle
and
approached the suspect and he started running. When Mbana was
also alighting from the police vehicle the suspect was
already
running towards the back of the shop. She heard gunshots and as she
was joining the road, she saw the suspect and pulled
out her firearm
and also fired shots. Tofu then told them that there was a man
that was lying on the road. She established
that the man had
been hit during the shooting. They called their supervisors
from the police station and upon their arrival
they explained to them
what happened. She stated that she does not know who shot the
deceased, but she disputed the evidence
of Malamba that the deceased
was shot by Livers. She confirmed that there were similarities
between the clothing of the deceased
and the suspect they were
chasing.
[17]
During cross examination, Mbana stated that she does not know who
shot the deceased and therefore
she cannot confirm nor deny whether
it was Livers or not. She confirmed that IPID gets involved when
there is suspected wrongdoing
by the police, and they were called
because they were suspected to have killed the deceased.
[18]
The third witness called was Constable Nyameko Tofu (Tofu). He is
employed as a police officer
by the SAPS stationed at Mqanduli police
station. On 19 October 2016, he was with Livers and Mbana. They were
looking for three
suspects who committed a robbery at Mahodini. On
their way to Qokolweni they met members of the flying squad who gave
them description
of the suspects. They continued searching
until they reached Nobonke store. When they were about to stop
the car, they
saw a person who matched the description of one of the
suspects they were looking for in front of the shop and he went
around the
corner of the building. Livers jumped off the
vehicle and started chasing at the suspect. Mbana followed as well.
He
then saw the suspect going towards the direction of the gate and
he stopped next to the gate. He heard gunshots and saw the
suspect outside the yard firing shots. Tofu drew out his firearm, but
he did not fire any shots. After the gunshots stopped, he
started
chasing the suspect but whilst chasing he saw a person who was on the
road falling. He called Mbana and Livers informing
them that someone
was injured. The suspect ran away. They immediately called an
ambulance and other stakeholders from their
workplace. These includes
detectives, fingerprint officers, and their commanders. The
IPID was called by their commanders.
He disputed that the
deceased was shot by Livers.
[19]
During cross examination, Tofu confirmed that (i) he did not see who
shot the deceased; (ii)
he does not know who shot the deceased; (iii)
he does not know whether Mbana or Livers shot at the deceased or not
because he did
not see it happening, (iv) the deceased was wearing
black jacket and beige pants and that those were the same clothes
that were
described by members of the flying squad.
Issue(s)
for determination
[20]
The issue is whether the deceased was shot and killed by members of
the South African Police
Services.
Analysis
of the evidence
[21]
It is trite that in civil proceedings the party that bears the onus
must, in order to succeed,
prove its case on a balance of
probabilities. I am also mindful of the fact that the
proper way to decide between the
two opposing versions should be by
reference to reliability, credibility, and probabilities. This
principle was stipulated
in the case of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell Et CIE and
Others
[1]
,
where the Supreme Court of Appeal set out guidelines for resolving
factual disputes and held that the court, in order to come
to a
conclusion on disputed issues, must make findings on:
(a)
the credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities.
[22]
In
National
Employers General Insurance Limited v Jagers
[2]
,
the court set out the approach to be adopted when dealing with the
question of onus and the probabilities. He held as follows:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged
by
adducing credible evidence to support the case of the party on whom
the onus rests. In a civil case the onus is
obviously not as heavy as it is in a criminal case, but nevertheless
where the onus rests on the plaintiff as in the
present
case, and where there are two mutually destructive stories, he can
only succeed if he satisfies the Court on a preponderance
of
probabilities that his version is true and accurate and therefore
acceptable, and that the other version advanced by the defendant
is
therefore false or mistaken and falls to be rejected. In deciding
whether that evidence is true or not the Court will weigh
up and test
the plaintiff’s allegations against the general probabilities.
The estimate of the credibility of a witness will
therefore be
inextricably bound up with a consideration of the probabilities of
the case and, if the balance of probabilities favours
the plaintiff,
then the Court will accept his version as being probably true. If,
however, the probabilities are evenly balanced
in the sense that they
do not favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can
only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant’s version
is false.”
[3]
[23]
The plaintiff relied on the evidence of a single witness. In terms of
section 16 of the
Civil
Proceedings Evidence Act
[4]
judgement may be given in any civil proceedings on the evidence of a
single competent witness. In
Daniels
v General Accident Insurance Co Ltd
[5]
the court held as follows:
“
Although
there is apparently no 'cautionary rule' in civil cases as in
criminal matters where proof beyond reasonable doubt is required,
the
single witness, more particularly where he is one of the parties,
must be credible to the extent that his uncorroborated evidence
must
satisfy the Court that on a balance of probabilities it is the
truth.”
[24]
In my view, Malamba although a single witness, was credible and
reliable. I am however mindful
of the fact that the findings of
credibility cannot be judged in isolation but are to be considered in
the light of the proven
fact and the probabilities of the matter.
[6]
Malamba gave a clear description of what he saw in relation to the
shooting of the deceased.
He
created a very good impression in court both about his demeanor and
his actual testimony.
His narration about what he saw on that day cannot be faulted
and even during cross examination he was unshaken. The criticism
against his evidence relates to matters that are not related to the
issue. For example, the unfounded accusations that were levelled
by
Livers about him being a drug addict have nothing to do with what he
saw on that day. Importantly, it was not disputed that
the witness
was present when the incident happened and that he was on the road
travelling in opposite direction with the deceased.
[25]
It was also argued by counsel for the defendant that the evidence of
Malamba contradicts the
case pleaded by the plaintiff in the
particulars of claim. The basis for this argument is that the
plaintiff did not mention
in the particulars of claim that the
deceased was shot by a coloured police officer. I disagree with this
argument. Firstly,
Malamba is not the plaintiff but an
independent witness who witnessed what happened on that day relating
to the death of the deceased.
Secondly, the evidence presented
by Malamba is consistent with what is alleged in the particulars of
claim in that he testified
that the deceased was killed by a member
of the South African Police Services, and I do not see how the
omission of race of a police
officer who shot the deceased in the
particulars of claim can be construed as a contradiction, let alone a
material one.
[26]
Although the defendant called the evidence of three witnesses with
the aim of having corroborating
testimonies, they are not independent
witnesses. They are colleagues who happened to be implicated in the
death of the deceased
hence they were investigated by the IPID.
Malamba on the other hand is an independent witness, unaffected and
unrelated to any
of the parties. Also, the version of the Livers,
Mbana, and Tofu is improbable when having regard to the totality of
the evidence
in this case especially in view of the following:
(a)
They were looking for suspects, one of whom was wearing black jacket
and beige trousers.
The deceased was wearing black jacket and beige
trousers. In my view, the mysterious death of the deceased who
happened to
fit the description of the suspects that the police were
looking for was not just a coincidence, but it had to do with what he
was wearing on that fateful morning.
(b)
The fact that Livers, Mbana, and Tofu did not pursue the alleged
suspect after realising
that the deceased has been shot cannot be
ignored. This is because a suspect was being pursued for having
committed serious crimes
and on their own version he was armed and
dangerous. In my view, one of them could have been able to call
for help or an
ambulance whilst others continue with the chase.
What is more peculiar is the fact that there were no cartridges
recovered
at the scene except the ones from the police officers
notwithstanding their testimony that the ‘fleeing’
suspect fired
shots. The ballistic report reveals that the bullets
and cartridges only belong to the police.
(c)
The commanders and IPID were called on the scene. It is common
cause that the IPID
is only called upon when there is suspicion of a
misconduct by police officers. It is also common cause that the
incident attracted
the interest of the IPID because the conduct of
the police officers on that fateful day had to be investigated. What
makes matters
worse is Livers’s evasiveness regarding his
knowledge about the functions of the IPID. It is inconceivable that a
police
officer with more than 14 years in the police services cannot
know that the functions of IPID are to investigate unlawful conduct
by police.
[27]
Therefore, the proven facts in this action are that the deceased was
shot and killed at about
11h30 on 19 October 2016. Livers, Mbana, and
Tofu were looking for a suspect that was wearing black jacket and
beige trousers.
The deceased was wearing black jacket and beige
trousers. The probabilities are that, given the similarities between
the deceased’s
clothing and that of the suspect, Livers thought
that the deceased was the suspect and shot and killed him in
circumstances where
the deceased was not posing any danger to him
which is why the IPID got involved. I am therefore satisfied that, on
a balance of
probabilities, the plaintiff has succeeded in
discharging the onus of proving that the deceased was shot and killed
by the members
of the South African Police Services.
Costs
[28]
The general rule is that the costs usually follow the result and I
cannot see any
circumstances
which would justify any departure from the general rule.
Mr Bodlani requested the court to allow the plaintiff the costs of
two counsel on the basis that the matter is one of importance
to the
deceased’s family who lost a breadwinner. The enquiry
that was adopted in
Koekemor
v Parity Insurance Company Ltd. and Another
[7]
is whether, in all the circumstances, the expenses incurred in the
employment of more than one counsel were necessary or proper
for the
attainment of justice or for enforcing the rights of the plaintiff,
and were not incurred through over-caution, negligence
or mistake.
The court in the
Koekemoer
case held that among relevant considerations are the following:
(a)
the volume of evidence (oral or written) dealt with by counsel or
which he or they could
reasonably have expected to be called upon to
deal with;
(b)
the complexity of the facts or the law relevant to the case;
(c)
the presence or absence of scientific or technical problems, and
their difficulty
if they were present;
(d)
any difficulties or obscurities in the relevant legal principles or
in their application
to the facts of the case;
(e)
the importance of the matter in issue, in so far as that importance
may have added to the
burden of responsibility undertaken by counsel.
[29]
In this case, I am not convinced that the complexity of the issues
involved required the engagement
of two counsel. Therefore, the
costs of the second counsel are not allowed.
[30]
In the result I make the following order.
(a)
The defendant is held liable for the damages that the plaintiff shall
prove consequent upon the death of Silulami Demesha on 19 October
2016.
(b)
The quantum of damages to which the plaintiff is entitled shall be
determined
on a date to be arranged with the Registrar of this Court.
(c)
The defendant shall pay the costs of the action incurred thus far.
___________________
S
M MBABANE
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
Counsel
for the Appellant: Adv
A. M. Bodlani with Adv L.
Mncotsho Boya
Instructed
by
Mpendulo
Stoyile Attorneys
Plaintiff’s
Attorneys
No.
8 Lowrey Street
MTHATHA
Counsel
for the Respondent: Mr
Mkhongozeli
From
H.N.
Mkhongozeli Attorneys
No.
55 Nelson Mandela Drive
Block
E – Unit 6
MTHATHA
Date
heard: 20
February 2019
Date
of Judgment:
30
April
2019
[1]
2003
(1) SA 11 (SCA).
[2]
1984
(4) SA 437(E).
[3]
Page 440 D-G.
[4]
Civil Proceedings Evidence Act, 1965 (Act 25 of 1965).
[5]
1992 (1) SA 757
(CPO) at 760 A-B.
[6]
Santam v Biddulph 2004 (5) 586 (SCA) at 589G.
[7]
1964 (4) SA 138
(T) at 144 F.