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[2018] ZAGPPHC 231
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Thanjekwayo v Minister of Police (72700/2015) [2018] ZAGPPHC 231 (26 January 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISIO
N
, PRETORIA
CASE
NO:
72700/2015
DATE:
26/1/2018
REPORTABLE:
NO
OF
INTEREST TO TOHER JUDGES: NO
In
the matter between:
SIMANGALISO
LUCKY
THANJEKWAVO
Plaintiff
versus
MINISTER
OF
POLICE
Defendant
JUDGMENT
MPHAHLELE
J
[1]
The plaintiff instituted action against the defendant for damages
arising a shooting incident that took place on 06 June 2014.
[2]
At the commencement of the trial and by agreement between the
parties, the merits for liability and quantum are separated in
terms
of rule 33(4) of the uniform rules of court and the matter proceeded
on the issue of liability, and the issue of quantum
to stand over for
determination at a later stage.
[3]
It is common cause between the parties that on 02 June 2014 at
Thembalihle, Vrede, Free State Province, one Constable Mabula
shot
the plaintiff.
[4]
The defendant relied on self defence for the shooting of
the plaintiff. The defendant having conceded that in shooting
the
plaintiff the police officer concerned was acting in the course and
scope of his employment, the only question before this
court is
whether the shooting of the plaintiff was justified. The
onus was on the defendant to prove that
the shooting of the
plaintiff was justified [Mabaso v Felix 1981 (3) SA 865 (A)].
[5]
The defendant led the evidence of two witnesses, viz. Constable H K
Mabula and Constable R Mokoena. The plaintiff testified
in person and
also led the evidence of Mr. B P Tshwala.
[6]
Constable Hloriso Kgabo Mabula testified that on 02 June 2014 he was
duty doing the stop and search with Constable Mokoena in
Makopo
Street. It was at between 00h00 and 01h00 when he noticed two men
walking side by side busy consuming liquor. Mokoena then
stopped the
vehicle and Mabula approached one of the men and after introducing
himself, the man refused Mabula to search him. Mabula
then warned the
man he was arresting him for drinking in public. The man resisted the
arrest and Mabula asked Mokoena to assist
him with the arrest. The
man then shouted and informed his friend that the officers (referring
to them as dogs) wanted to arrest
him.
[7]
Whilst struggling with arresting the plaintiff, Mabula was struck
with a beer bottle at the back. He did not know who struck
him
with the bottle as there was a crowd of about fifteen people
present at the scene of the incident. The crowd threw
bricks and beer
bottles at the two officers. Despite for calls to stop, the crowd
continued attacking the officers
and threatening them
with more violence. They warned the crowd several times that they
were disturbing them in executing
their duties. Mabula
then warned the crowd that he will shoot. One of the crowd hit Mabula
with a stone on his right ankle
which caused him to fall on his back.
Under cross-examination he stated that the plaintiff is the one who
hit him on the right
ankle with a brick which caused him
to fall down.
[8]
After warning the crowd twice, Mabula discharged two warning shots
(on the ground} before falling down. He fired a third shot
whilst on
the ground lying on his back. The shot was directed the shot at the
person leading the crowd approaching him. He later
learnt the person
shot was the plaintiff in this matter. The plaintiff was about six
meters away at the time of the shooting. He
feared for his life so he
had no other alternative but to fire the shot to defend
himself.
[9]
He stated that he wrong to mention in his statement to the police
that he shot the plaintiff as he was falling down. He admitted
that
the statement was made whilst the incident was still fresh in his
mind but blamed the mistake on the trauma caused by the
incident. He
fired the shot because was still approaching him whilst he was lying
on the ground.
[10]
Upon arrival of a back-up, Mokoena took him to hospital for medical
attention.
[11]
The attempted murder charges against him were later withdrawn as it
was found that he acted in self defence.
[12]
According to Mabula, the plaintiff was holding a beer bottle in his
hand and could not walk properly (was staggering) at the
time he was
apprehended.
[13]
Out of the group of about 15 people, only three were arrested. The
three were subsequently acquitted.
[14]
They retreated together towards the same direction as the crowd was
chasing them with Mokoena on his right hand side. He could
not say if
Mokoena fired any shot(s) or not but was certain that he was the one
shot the plaintiff. He directed the shot at the
plaintiff's chest.
At the time the plaintiff was not standing still, he was
running. He denied under cross-examination
that he shot the plaintiff
twice, first on the left arm then on the stomach.
[15]
Constable Richard Mokoena testified that on 02 June 2014 he was the
driver of a police vehicle on duty with Mabula. On noticing
a (man
walking) pedestrian busy drinking, Mabula asked him to stop. Mabula
approached the man and he not iced Mabula trying to
search this man.
Then Mabula asked him to assist arrest the man. Mabula informe the
man that he intended to issue a fine. The man
resisted the arrest and
called other people. Then several men appeared and threw beer bottles
and stones at them (the two police
officers). He heard Mabula (who
was three steps behind him) mentioning that he was hit at the back.
Mokoena was in the midst of
the crowd. He lost control of the
plaintiff and then retreated. As he and Mabula were busy retreating
he heard Mabula pleading
with the crowd to stop the attack . He then
heard t wo gunshots from his left hand side where Mabula was. Then he
noticed the crowd
running away with Mabula and the plaintiff lying
on the ground. Mabula and the plaintiff were about four metres
away
from each other. Mabula informed him that he was struck
with a stone on his right foot and a beer bottle on his right
hand. Mabula had his firearm in his left hand. He immediately called
for back-up and was advised by warrant officer Malinga to
take Mabula
to hospital for treatment. He did not sustain any injuries as he was
wearing a bullet proof vest and boots.
[16]
Under cross-examination he testified that he grabbed his firearm
before the shots were fired. Only to change later and mention
that he
grabbed his firearm before the two shots were fired because he heard
someone in the crowd saying 'let us take their firearms'.
He never
fired any shot(s) despite their lives being in danger.
[17]
The plaintiff testified that on 02 June 2014 at approximately 00h00
he was walking home from a tavern with his friend, Bafana.
And Vuzi
was walking about 15 metres behind them. Looking back he noticed Vuzi
being stopped by a police officer. He then turned
back to find out
what was happening with Vuzi. He left Bafana behind as he went
towards Vuzi's direction. As he was about to reach
Vuzi, a police
officer one Mabule alighted from the police van and produced a fi
rearm . Mabule remarked that he has been looking
for them and then
started shooting. Mabule only shot the plaintiff. He shot the
plaintiff twice, first on the left wrist then the
tummy. He then fled
towards his home direction. He fell down and called on Bafana to
inform his mother that he has been shot. His
mother and Vuzi attended
at the scene of the incident and then Vuzi took him to hospital for
medical attention. The plaintiff,
Vuzi and Bafana were arrested but
eventually not found guilty of any charge. Vuzi has since passed on.
[18]
He knew Mabule before the shooting incident. They stay in the same
street but are not on speaking terms. Under cross-examination
he
mentioned that Mabula once attended at his home looking for his
brother and his brother's friend. He ordered them to leave as
the
people they were looking for were not there. As they were leaving his
home Mabula and the police officers remarked that they
will get him.
There were six police officers, only knew Mabula's name. He suspected
this incident to be the reason for the shooting.
[19]
He denied that shots were fired in order to protect police officers
who were under attack. He maintained that no warning shots
were
fired. He agreed that in his statement to the police he stated that
the police officers were checking the beers, whether they
were opened
or not. As he was approaching Vuzi he noticed that the police were
checking the beers. Under cross-examination he testified
that it was
a lie that Mabula asked to search Vuzi. Only to change later and
mention that he would not know if Mabula asked to
search Vuzi as he
was not near Vuzi.
[20]
Bafana Patrick Tshwala testified that on 02 June 2014 he was walking
with the plaintiff and Vuzi towards the plaintiff's home.
He and the
plaintiff were walking together and Vuzi following from behind. On
looking back, he noticed Vuzi standing next to a
police van.
Then plaintiff turned back towards the police to check what was
happening. The police van was about 35 metres
away. Before the
plaintiff could reach the police van he heard a gunshot. Under
cross-examination he was confronted with his statement
to the police
wherein he mentioned that 'after a while he was there I heard a sound
of a gunshot'. In response he stated that he
was not the one who
wrote down the statement. Plaintiff then approached his direction
running, fell down and before reaching him
and pleaded with him to
inform his mother that he he has been shot. He summoned
plaintiff's mother who asked the police
to take his son (the
plaintiff) to hospital. The police refused stating that they do not
transport injured people. Vuzi eventually
took him to hospital.
[21]
He denied that the police officers were
ever
attacked and
maintained that there was no commotion during the shooting. He
further denied that Mabula was lying on the ground
when shooting the
plaintiff. He however did not know who fired the shots and what
triggered the shooting.
[22]
He disputed under cross-examination that the police first asked to
search Vuzi. Only to change later and mention that he could
not hear
the conversation between the police and Vuzi. He further could not
see what was happening between the police and Vuzi.
[23]
The court is faced with two mutually destructive / conflicting
versions. The court must under the circumstances make findings
on the
credibility of the factual witnesses; their reliability and the
probabilities.
[24]
The evidence of the defence witnesses is confusing and riddled with
contradictions.
[25]
The two police officers maintained that they were attacked by a crowd
of about 15 people and during the attack they called
for back
up. This crowd was apparently still present at the scene when the
other officers (the back-up) arrived but both officers
failed to give
a reasonable explanation why no arrests were made at the scene.
Further they failed to explain why only the 3 (the
plaintiff, the
late Vuzi and Tshwala) were arrested. These three were only arrested
days after the date of the shooting incident.
[26]
According to Mokoena, he was about 4 or 5 metres away from Mabula
during the attack by the crowd. This crowd was apparently
throwing
beer bottles and bricks at both himself and Magbula but what is
Mokoena never fired a shot, not even a warning shot.
[27]
On the evidence of the two police officers (Mabula and Mokoena) there
is uncertainty as to whether Mabula fired 2 or 3 shots
and at whom
such shots were supposedly fired. Mokoena who was not far from Mabula
stated that he heard only two shots and Mabula
on the other hand
stated that he fired three shots (two warning shots and the third
shot was directed at the plaintiff). Mabula
further contradicted
himself as to what stage was the third shot fired. He testified
that he was already lying on the ground
when he fired the third shot
contrary to what is stated in his statement contained in the
police docket. In that statement
he stated that he
fired the third shot at the plaintiff whilst in
the process of falling. This plaintiff that was shot,
according to Mabula, was drunk and staggering when Mabula first
noticed him.
There is no suggestion that the plaintiff regained his
composure and was eventually able to run and be in a position to wage
a
fight against the two police officers, let alone Mabula.
[28]
It follows that the defendant failed to discharge the onus resting on
it to prove that the shooting of the plaintiff was justified.
[29]
in the circumstances, the following order is hereby made:
1.
The defendant is liable to pay 100% of the plaintiff's proven or
agreed damages caused by the shooting incident that took place on 06
June 2014.
2.
The defendant to pay the costs.
______________________
S
S MPHAHLELE
JUDGE
OF THE HIGH COURT,
PRETORIA
For
the plaintiff: Advocate L Mgwetyana
Instructed
by: Mjali & Zimema Attorneys
For
the defendant: Advocate U B Makuya
Instructed
by: The State Attorney