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[2019] ZAECMHC 52
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Nomgejo v Minister of Safety & Security (520/07) [2019] ZAECMHC 52 (19 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
NOT
REPORTABLE
CASE NO: 520/07
Delivered
on : 19/09/19
In
the matter between:
ZANOXOLO
NOMGEJO
Plaintiff
And
MINISTER
OF SAFETY & SECURITY
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
The plaintiff, an adult male, instituted an action against the
defendant claiming
compensation in the sum of R2,4 million for
damages arising out of an alleged assault by two policemen who served
as the employees
of the Department of Safety and Security, and over
whom the defendant is vicariously liable in his capacity as the
political head
of the Department.
[2]
The action is defended.
[3]
By reason that the issues of the
merits
and
quantum
were separated in terms of Rule 33 (4) of the rules of the High
Courts, the Court is called upon to answer the question whether
the
defendant is liable to pay for the damages.
.
[4]
The plaintiff’s claim is founded on the cause of action which
is set out in
paragraph 3 of the particulars of claim, namely:
“
3.1
On or about 7 October 2006 at Tsolo in town within the area of
jurisdiction of the above Honourable
Court the members of South
African Police whose identity are unknown to the plaintiff unlawfully
and wrongfully gunshot the plaintiff
at his arm at the back without
justifiable cause or reason.”
[5] The
plaintiff’s plea reads:
“
Ad paragraph
3
Defendant has no
knowledge of the allegations but denies them as if specifically
traversed and deponent is put to proof. In
amplification,
defendant states that no criminal charges were ever laid against any
member of the police services in Tsolo or anywhere
in connection with
the alleged shooting, neither was there any report made to the police
in connection therewith.”
[6]
The purpose of pleading is
inter alia
to set the parameters
within which the proceedings will be conducted and evidence admitted
or excluded – see:
Imprefed (Pty) Ltd v National Transport
Commission
1993 (3) SA 94
(A) at 107. In this case the
pleadings raise an issue whether the plaintiff was assaulted by the
police. The pleadings
do not take the enquiry beyond that
issue.
[7]
The evidence adduced by the plaintiff and his witness, Mr Mawethu
Samela, show the
following: On 07 October 2007 the plaintiff
attended work at Ali’s Place, Tsolo, a business that makes
planks out of
wood. There was a grocery shop at the nearby
known as Queen’s Rose Supermarket. At about 6 pm, whilst
walking
near the Supermarket building he heard a noise emanating from
behind him. Immediately thereafter he saw a man running past
him and being followed by two policemen wearing police uniforms at a
distance of approximately 12 meters. Each of the policemen
was
wielding a firearm pointed towards the direction of the plaintiff.
As he turned his back to the police to proceed on
his way, he heard
gunshots and felled to the ground. The plaintiff was approached
by the same policemen, still wielding firearms,
who instructed him to
stand up, but he failed. At that moment the plaintiff realised
that he had been injured on the upper
part of the left arm which he
attributed to a gunshot. The policeman then put their firearms
to their waists and called other
police using a two-way police radio.
Upon arrival of the police van the two policemen instructed the
plaintiff to climb onto
the back of the van. The plaintiff was
again unable to even rise and stand up on the ground. The
police later on summoned
an ambulance to the scene of shooting that
transported the plaintiff to Ngcolosi Hospital, Tsolo. He was
later transferred
to Mandela Hospital, Mthatha as it had been found
by the nursing staff that a bullet lodged into his body was difficult
to remove.
On 17 October 2006, he was transferred from Mandela
to Bedford Hospital, Mthatha. He was detained there until he
was discharged
on February 2007. The plaintiff was wheel-chair
bound until December 2006.
[8]
The plaintiff testified further that whilst he was detained at
Bedford Hospital, two
men visited him. They had brought food
and R200,00 for him. During their conversation the two men
asked the plaintiff
if he knew the identity of the two policemen who
had assaulted him by shooting on 07 October 2006. With the
benefit of prior
advice given by the nursing staff the plaintiff
answered that he was unable to identity his assailants.
According to the
plaintiff his safety would have been compromised had
he revealed the identity of the assailants to the visitors.
[9]
Mr Samela testified that on 07 October 2006 he was employed by
Ambulance Emergency
Services, Mthatha. During the evening of
the same date he received an instruction from the employer to rush to
a scene of
shooting at Tsolo, near Queen’s Rose Supermarket.
Indeed he and two other colleagues of his drove to Tsolo. On
arrival there they found the members of the police present together
with the plaintiff who was lying on the ground injured.
They
took the plaintiff onto a wooden stretcher and lifted him into the
ambulance as he was not able to move unassisted.
Thereafter,
they took the plaintiff to Ngcolosi Hospital.
[10]
Cross examination of the plaintiff and Mr Samela, aimed only at
discrediting their evidence,
would prove to be an exercise in
futility simply because there was no contradictory version to
pursue. Instead the version
of the plaintiff was bolstered by
the fact that his injuries were attributed to shooting and the
unassailable account given by
Mr Samela that the police and their
official motor vehicle were present at the scene of shooting.
Questions put to Mr Samela
pertaining to his attendance at the scene
and the presence of the plaintiff there, which were answered
affirmatively, only served
to corroborate the plaintiff’s
evidence. Suffice it to say that the plaintiff and Mr
Samela were not shaken under
cross examination.
[11]
Mr Peter Nxitywa testified on behalf of the defendant about three
rifles and 108 live rounds
of ammunition that were shown in the
Occurrence Book (the OB) to have been issued out to some unidentified
members of the Department
who were attached to Tsolo Police Station
on 07 October 2006. The OB also reflected that the same number
of firearms and
ammunition were returned without having been used.
But Mr Nxitywa did not tell the Court why those weapons had to be
issued,
and the details of the project for which they had been issued
were not given. Mr Nxitywa was not present at Tsolo Police
Station on 07 October 2006. It is not hard to see that
the plaintiff would never have been able to report the incident
at
the Police Station on 07 October 2006. To that extent his
evidence with regard to the recordings in the OB was an attempt
to
show that the shooting incident in which the plaintiff was involved
did not exist and that, if it did, it was never reported
to the
police. Such evidence may safely be rejected as irrelevant and
unreliable. It also fails on probabilities in
that the person
present at the Station on 07 October 2006 and with knowledge of the
reasons why the entries were made in the OB
did not testify. On
the test of credibility, reliability and probabilities as adumbrated
in the case of
Stellenbosch Farmers’
Winery Group Ltd and And Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at 14I-15E the evidence of the plaintiff together
with Mr Samela is more probable. However, this finding does not
in
itself decide the case.
[12]
Since assault is a delict, the plaintiff has
onus
to prove
that he sustained harm; the defendant’s conduct is wrongful;
there is a causal connection between the conduct and
plaintiff’s
harm; and that there is fault or blameworthiness on the part of the
defendant. I deal with these elements
hereinbelow.
[13]
The evidence tendered on behalf of the defendant that there was no
shooting incident reported
to Tsolo Police Station on 07 October 2006
does not contradict the proved facts that the plaintiff was shot at
and injured by the
police of Tsolo near Queen’s Rose
Supermarket, Tsolo. The identity of plaintiff’s
assailants is also proved by
evidence that two armed male persons
wearing police uniforms with matching insignia on it, committed the
assault; a police radio
was used by those officials to call for
police re-enforcement; and that a motor vehicle of a description
fitting that used by the
police of Tsolo everyday was present at the
scene of shooting. Such evidence is sufficient proof that
the members of
Tsolo Police Station injured the plaintiff. By
parity of reasoning a causal connection between the conduct of the
police
and plaintiff’s harm is established by the reliable
facts. It bears mentioning as well that the conduct of the
police
officials is the proximate cause of the harm caused to the
plaintiff. The provisions of s 205 (3) of the Constitution,
1996
enjoins all members of the Department of Safety and Security,
including those who injured the plaintiff, to protect and secure the
inhabitants of the Republic, including the plaintiff. An
unjustified breach of this police duty is unlawful/wrongful.
Fault for the wrongful conduct in this case can only be attributed to
the two policemen who injured the plaintiff. This
position is confirmed by the Constitutional Court in
K v Minister
of Safety And Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) at 443, para. 52.
[14]
Consequently, the plaintiff has discharged
onus
of proof that
the defendant is vicariously liable to compensate the plaintiff for
the damages he suffered due to the wrongful conduct
of the police
officials of Tsolo that they committed with
animus injuriandi.
See the case of
Mhlongo And Another N.O. v Minister of Police
1978
(2) SA 551
(A) at 567E-G; and
K v Minister of Safety And Security,
supra,
where the application of the provisions of
s 2
(1) of the
State Liability Act No. 20 of 1957
is endorsed. The relevant
provisions of
s 2
read as follows:
“
(1)
Any claim against the State which would, if that claim had arisen
against a person, be a ground
of an action in any competent Court,
shall be cognizable by such Court, whether the claim arises out of
any contract lawfully entered
into on behalf of the State or out of
any wrong committed by any servant of the State, acting in his
capacity and within the scope
of his authority as such servant.
(2)
In any or other proceedings instituted by virtue of the provisions of
section 1
, the executive authority of the department concerned must
be cited as nominal defendant or respondent.”
[15]
The costs incurred in the determination of the issue of liability
must be paid by the defendant.
[16]
In the result the following order shall issue:
1.
The
defendant be and is hereby held liable to pay such amount of damages
as may be proved for the wrongful shooting of the
plaintiff at Tsolo
on 07 October 2006.
2. The
trial costs incurred in determining the issue of liability, including
all reserved costs, shall be
paid by the defendant.
__________________________________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the plaintiff : Adv.
N. Hinana
Instructed
by
: Caps Pangwa &
Associates
MTHATHA.
Counsel
for the 1
st
defendant : Adv. M. Matyumza
Instructed
by
: M. Mnge & Associates
MTHATHA.