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[2018] ZAGPJHC 524
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Mngomezulu v Minister of Police (10618/2016) [2018] ZAGPJHC 524 (13 September 2018)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
No. 10618/2016
In
the matter between:
MNGOMEZULU,
KUSA RICHARD
PLAINTIFF
And
MINISTER
OF POLICE
DEFENDANT
JUDGMENT
MILLAR,
A J
1.
The plaintiff has sued the defendant for
damages. It is the case for the plaintiff that on 12 July 2014 and
during a service delivery
protest, he was shot in the hand by one of
the defendant’s employees.
2.
The parties applied at the commencement of
the trial for an order separating the issues of liability and the
quantum of damages.
I granted the order sought and the trial
proceeded for the determination of liability with the issue of the
quantum of damages
postponed
sine die
.
3.
The defendant had raised a special plea of
non-compliance with the provisions of section 3 (2)(a) of the
Institution of Legal Proceedings
against Certain Organs of State Act
40 of 2002. This plea was however formally abandoned.
4.
The facts of the case are largely common
cause. On 12 July 2014 and in the area of Freedom Park near the
Golden Highway in
Gauteng, approximately 1500 members of the Freedom
Park community, of which the plaintiff was one, decided to protest
against the
fact that they had been without electricity for four
days.
5.
The community marched and eventually
reached the intersection of the Golden Highway where it runs from
Johannesburg in the North
to Vereeniging in the South. Freedom
Park is on the Western side of the intersection and Eldorado Park on
the Eastern side.
The community entered into the intersection
and blocked it for traffic travelling in all directions.
6.
The plaintiff testified that the march was
peaceful and that nothing untoward was afoot. While standing
somewhere near the
middle (and to the side) of the crowd, he heard
gunshots behind him. He turned around and raised his hands when
he saw a
policeman pointing a shotgun at him. He began to move
backwards with his hands still raised and it was then that the
policeman
fired, hitting him in the hand and causing a large number
of “pellets” to lodge in his hand. He was injured
and
ran to the nearby fire-station where he was assisted. He
was only able to go to the hospital the next day as no ambulances
or
taxis could enter the area because of the protest. He afterward
also reported the matter at the Eldorado police station.
7.
Warrant Officer Manaswe (“Manaswe”)
and Constable Godi (“Godi”) testified on behalf of the
defendant. They
were police officers of 27 and 10 years standing
respectively, both attached to the Public Order Policing Unit and
having attended
the scene of the protest on the day in question.
8.
Their evidence was that their unit was the
only police unit on the scene. They, together with their commanding
officer Colonel Hine
had tried to calm the situation and had even
arranged for a local Councilor to try and talk to the community. The
situation
became progressively more unstable. The Councilor was taken
away for his safety and the community had begun throwing stones at
motorists driving on the Golden Highway. Colonel Hine had tried to
make a final attempt to talk to the community but had to abandon
this
for his own safety.
9.
Colonel Hine had then given the order to
use a stun grenade which was done. This did not have the
desired effect of causing
the community to disperse and so they
police then resorted to firing rubber bullets. Before any rubber
bullets were fired, the
police which included both Manaswe and Godi
lined up to one side. This was done so as to prevent police officers
being caught in
any crossfire.
10.
After the community was finally dispersed
the officers reported all the ammunition used. On the day in
question all that had
been issued to the police had been stun
grenades as well as rubber bullets. This is what was used.
11.
All the while events were unfolding,
Manaswe had been in radio contact with his base and had been
reporting developments. This communication
is all recorded and then
put into what is called an “iris” report. The report was
tendered into evidence and corroborated
the events as testified to by
Manaswe and Godi and in particular listed the ammunition used.
12.
Both Manaswe and Godi were adamant that the
only ammunition used on the day had been the stun grenade and rubber
bullets. They denied
that they had been issued with “pellet”
ammunition or that it was used by them. Manaswe testified that
the use
of “pellet” ammunition had been discontinued some
10 years before the incident. Godi testified that in his 10 years’
service in the unit he had never used such ammunition and had only
ever seen and used it during training when he was at college
in 2007.
13.
The
“iris” report
[1]
recorded the use of the stun grenade and the rubber bullets. No other
ammunition is recorded as having been used.
14.
The
court is faced with two mutually exclusive and destructive versions.
If the plaintiff’s evidence is accepted, then the
police must
have used “pellet” ammunition and shot him. Conversely if
the police did not use “pellet” ammunition
then it is not
they who shot him. The onus
[2]
is on the plaintiff to show on a balance of probability that it was
the police that shot him with “pellet” ammunition.
15.
In
these circumstances, the test to be applied is that set out in
by
Eksteen JP in
National
Employers' General v Jagers
,
[3]
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 satisfied
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.”
16.
The plaintiff’s evidence was that
he was in the crowd and that a policeman approached him from behind.
For this to have occurred,
the policeman would have had to walk
through the crowd, on his own, with his weapon raised in order to
have confronted the plaintiff
in the manner he testified. Even if I
were to accept the plaintiff’s evidence that the protest was
peaceful, it is unlikely
that no-one would have alerted the plaintiff
or for that matter anyone else to the presence of a policeman
brandishing a weapon.
Were the protest peaceful, this would have been
sufficiently unusual so as to have provoked some reaction from
bystanders especially
if the plaintiff had been shot in the manner he
said.
17.
The evidence of both Manaswe and Godi
was that the rubber bullets that were used would have caused bruising
– “left
a black mark” and would not have broken the
skin. Furthermore if “pellet” ammunition had been used on
the plaintiff
at the range he said, it would have blown his hand off
and not injured him as he testified.
18.
Besides the evidence of Manaswe and
Godi, the plaintiff himself testified that he was not able to leave
the area to go for medical
treatment until the next day because
transport in the area was disrupted because of the protest. Had the
protest been peaceful,
there would have been no reason for either
ambulances or taxis to avoid operating in the vicinity. The protest
was as a probability
not peaceful.
19.
On consideration of the respective versions
and the evidence as a whole, I find that the plaintiff’s
version improbable and
that of Manaswe and Godi probable. If the
plaintiff was indeed shot with “pellet” ammunition, it
was not by the police
on 12 July 2014.
20.
In the circumstances I make the following
order:
20.1 The plaintiff’s
claim is dismissed with costs.
_____________________________
A MILLAR
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
HEARD ON: 12 SEPTEMBER
2018
JUDGMENT
DELIVERED ON: 13 SEPTEMBER 2018
COUNSEL FOR THE
PLAINTIFF: ADV. R BOTHA
INSTRUCTED BY: TALANE
INC.
REFERENCE:
MR B MALAMLELA
COUNSEL FOR THE
DEFENDANT: ADV. N NHAMURAVATA
INSTRUCTED BY: THE STATE
ATTORNEY
REFERENCE: MS B MOKGOHLOA
[1]
Part
of the res gestae – see The South African Law of Evidence 2
nd
edition, Zeffert & Paizes, LexisNexis 2009 at page 461
[2]
Arthur
v Bezuidenhout and Mieny
1962 (2) SA 566
(A) at 575
[3]
National
Employers' General Insurance v Jagers
1984
(4) SA 437
(E)
at 440D. See also
Stellenbosch
Farmers' Winery Group Ltd v Martell et cie
2003
(1) SA 1
(SCA)
para 5 and
Dreyer
v AXZS Industries (Pty) Ltd
2006
(5) SA 548
(SCA)
at 558E-G.