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[2018] ZAFSHC 49
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Kok v Minister of Police and Others (4016/2015) [2018] ZAFSHC 49 (20 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4016/2015
In
the matter between:
DESIREE
NICOLEEN JOHANNAH
KOK
Plaintiff
and
THE
MINISTER OF
POLICE
1
st
Defendant
GERRYBOLDY
JIM
2
nd
Defendant
GERT
WITTLES
3
rd
Defendant
JUDGMENT
BY:
REINDERS, J
DELIVERED
ON:
20 APRIL 2018
[1]
In the early hours of 25 December 2014 in the rural town Jacobsdal
Mrs Desiree Nicoleen Johanna Kok (“the plaintiff”)
sustained gunshot wounds (“the shooting incident”). She
issued summons claiming damages from the defendants for the
alleged
wrongful and unlawful assault on her (being shot three times) by
police officers acting within the course and scope of
their duties as
members of the first defendant, resulting in the injuries sustained
by her. At the commencement of the proceedings
I was informed by the
parties that they only sought a determination on the merits as
contained in paragraphs 5 (as amended), 6
and 7 of the plaintiff’s
Amended Particulars of Claim and the corresponding paragraphs of the
defendants’ plea. I granted
same in terms of Rule 33(4) and the
trial proceeded only in respect thereof.
[2]
The first defendant is the Minister of Police and the second and
third defendants are Constables Gerrybaldy Jim (“Jim”)
and Gert Wittles (“Wittles”) respectively. It is not
disputed that they acted in the course and scope of their duties
as
employees of the first defendant, but it is denied that the assault
was unlawful and wrongful. The defendants pleaded that the
result of
the plaintiff being shot and injured was “accidental and/or in
private/self-defence.” In the alternative
it is pleaded that
the plaintiff consented to be subjected to the risk of injury. In a
further alternative to the latter it is
pleaded that the plaintiff
was negligent and/or contributed to the injuries she sustained.
[3]
The background to this action involves two families. The Kok family
(“the Koks”) comprise
inter alia
the plaintiff,
her two sons (Shane and Shaun), her brother Mr Norman Oliphant
(“Norman”) and her mother Mrs Caroline
Oliphant. Mrs Deka
Monyeki, her brother Derick, her son Lasi and other family members
belong to the Monyeki family (“the
Monyekis”). It is
common cause that Wittles, Jim and Mosadi attended to resolving a
reported fight between members of the
two families at 118 Potele
Street, the residence of the Monyekis. A sketch plan of the latter
depicting amongst other buildings
and structures in the yard, gates
and a washing line, was handed in by agreement as “Exhibit B1”
(“the sketch”).
Witnesses indicated their positions in
the yard at various stages of the incident where applicable.
[4]
In presenting her case the plaintiff testified and called her mother,
brother and Mr Jeremy Morris (“Jeremy”). The
relevant
aspects of their evidences can be summarised as below:
[5]
The plaintiff testified that a quarrel ensued between herself and Mrs
Monyeki at a tavern, resulting in further fights between
members of
the two families. Of importance is the fact that she was hit by
Derick with a knob kierie on the head. As Norman was
upset about this
assault, he wanted to enquire why Derick had assaulted his sister and
went to the premises. She was under the
influence of liquor but not
drunk. Norman and Shaun stood with her outside the gate as Wittles
and Jim alighted, addressing the
two families.
[6]
The Monyekis tendered their version of the quarrel, but the police
did not listen to plaintiff’s account. Norman said
this was
unfair. Hereupon he ran into the yard and she followed him in an
attempt to convince him to rather leave the premises.
She had a
narrow ladies’ belt in her right hand. It was shortly after
04h00 and the street lights and lights of the house
provided
visibility. Norman stood at the door of the house, with her behind
him. She heard firearms being cocked and saw Jim and
Wittles pointing
their firearms at Norman. As she turned around she observed Jim 4-5 m
right in front of her. She demonstrated
that she raised her arms at
the side of her body, her open hands about shoulder height
exclaiming: “Wat nou?”. She
observed him firing as he was
right in front of her and saw that her left ring finger was hanging
loosely. It started to ache and
the belt fell from her hand. As she
turned around she was shot twice in quick succession by Wittles,
first in her buttock, and
then in her hip. She said: “Hier
skiet hulle my weer”. Wittles was standing about 2-3 m away
from her. She explained
that she was shot in her left buttock and
hip, one entering and exiting, the other located in her buttock for a
year whereafter
it was surgically removed.
[7]
After being shot she leaned against the pole of the washing line. She
observed Wittles and Jim pointing firearms at her mother
(who
had in the meantime entered the yard) and Norman. As the latter two
were busy retreating out of the premises, she limped
towards them.
Norman assisted her to sit down in the road until the arrival of an
ambulance which took her to hospital.
[8]
During cross-examination it was put to the plaintiff by Mr Mene on
behalf of the defendants that the shooting occurred at the
back of
the yard close to the fence (marked as “shooting” on the
sketch). This was denied by her. She made two pink
markings
indicating that she was at the door at the corner of the house and
not at the back of the yard when the shooting occurred.
The version
of the defendants was that the Koks were a group of 9-10 people at
the gate, armed with knifes, pangas, rocks and a
hammer. The group
were chasing Wittles to the back of the yard, he warned them that he
was a policer officer and armed and would
protect himself. Somebody
uttered the words: “
Ek
soek daai gun”,
another
:“Ek
het nog nie ‘n polisieman dood gemaak nie vandag wil ek een
doodmaak”.
Plaintiff
said to the group: “Julle vat te lank om hierdie persoon dood
te maak” (collectively hereinlater reffered
to as “the
comments”)”. He fired a warning shot in the air. It was
put to her that when Wittles attempted to
fire a second warning shot
“you stabbed him and a fire shot went off, that is how you got
shot”. Hereafter Norman hit
Wittles with a hammer on his chest,
causing him to fall backwards and one of the group said that he is
dead. Everyone ran out of
the yard. It was put to the plaintiff that
the cartridge found was that of Wittles’ firearm, and that no
cartridge were found
from Jim’s firearm. The plaintiff
responded that what she knows is that three shots were fired at her
body.
[9]
Plaintiff denied in totality being part of a group in the yard, which
was armed as indicated by the police, persisting that
it was only
herself and Norman in the yard. No chasing of Wittles took place. No
warning shots were fired. None of the utterances
occurred. She was
unarmed and was a distance from Wittles, she only turned after having
been already shot in her hand. Plaintiff
admitted that the police had
the right to intervene, but maintained that it was never necessary
for them to “physically step
in”.
[10]
Mr Oliphant testified that he received a phone call from the
plaintiff that she had been assaulted by Derick with a knob kierie.
Since he wanted to establish from Derick the reason for this assault,
he entered the premises. He did not know where plaintiff
was at that
stage. He stood at the corner of the main house at the door, leaning
with his head against the wall. Within a second
he heard the
plaintiff shout that she had been shot. He did not see or hear shots
due to the commotion, and for the same reason
heard no conversation
between the police and plaintiff. He saw his mother and went to
assist her as he was concerned and wanted
to attend to her. He saw
his sister limping out of the yard.
[11]
The comments at the shooting scene were denied by him during
cross-examination. He denied being part of a group, chasing Wittles
or that warning shots were fired. He never saw weapons at the scene
or any weapons in possession of plaintiff. He had a hammer
in his
possession that slipped out of his pants, but he handed it to the
police. He did not bang on the door with a hammer, nor
did he observe
at the time of the shooting, any firearms being pointed at him as he
was facing the door. Same were however pointed
at him and his mother
when they were leaving the yard. He insisted that they did not pose
any threat to the police.
[12]
The 62 year old Mrs Oliphant testified that she was at her home when
she was informed by two girls about her daughter being
assaulted.
Upon her arrival at the premises, she entered and stood at the trees
indicated on the sketch. She saw Jim and Wittles
at the corner of the
house. She heard three shots, but thought it was crackers. Plaintiff
was shaking her hand saying that she
had been shot, but the witness
thought that it was a joke. Having observed blood on the pants of the
plaintiff, she became weak.
Norman went to her (Mrs Oliphant) to
assist, and as they were retreating Wittles and Jim were aiming their
weapons at them. She
observed only Norman, the plaintiff and the
police in the yard. During cross-examination she insisted that she
heard 3 shots and
not 2. She agreed that Norman had a hammer, but
insisted that he handed it over to the police. The plaintiff was
admitted to hospital
with wounds in her hand, hip and groin. One
bullet was stuck in her buttock. Upon discharge of her daughter she
took care of her.
[13]
According to Morris he was illegally buying liquor (a beer) from a
shanty in the yard before the police arrived. He hid behind
the
outside toilet. Observing the plaintiff and Norman standing outside
the gate, he then saw Norman running in with the plaintiff
behind
him. He heard a gunshot being fired, followed by the plaintiff
exclaiming that she had been shot. He then ran around
to the other
corner of the toilet, and saw Wittles fire a shot. He did not know if
Wittles fired at the plaintiff or at Norman.
The plaintiff never
moved closer to Wittles and Jim. Norman handed over a hammer to the
police. Plaintiff had a belt around her
hand which he later picked up
at the scene and returned to her. He saw only Norman, the plaintiff
and 3 policemen in the yard.
[14]
In cross-examination he denied that he was part of a group that ran
into the yard or chased Wittles. He heard 3 gun shots but
only
witnessed the one being fired by Wittles. Jeremy confirmed the
position of the plaintiff as indicated by her at the time when
the
shooting took place. He saw the plaintiff leaning against a washing
line pole after having been shot.
[15]
Warrant Officer Tulani Sibiya (“Sibiya”), Wittles,
Warrant Officer Hermanus Herbst (“Herbst”) and Jim
were
called to testify for the Defendants.
[16]
According to Herbst he arrived at the scene at 08:00 and took over
from Brooks as Investigating Officer. He received the firearm
of
Wittles and one empty cartridge. Brooks informed him that a shot was
apparently fired by Jim, and requested him to smell Jim’s
firearm for gun powder which would be indicative thereof that a shot
was fired. He did not smell any. Brooks told him that there
had to be
two more empty cartridges at the scene, but they could not find any.
He did not find any weapons at the scene.
Weapons were handed
to him by Brooks, whereafter he personally recorded it into the SAP13
register (“Exhibit A5”).
These included knifes, pangas
(“kapmes”), a hammer and a stone. He did not know where
the weapons were found or from
whom it had been confiscated. Herbst
confirmed that on the day of the incident, he took a photo (“Exhibit
A18”) of
Wittles’ hand, indicating a blue mark and fresh
blood. He did not see who inflicted the wound to Wittles. On the
following
day he also took a photo of a blue mark on the left
shoulder of Wittles (“Exhibit A18”). Likewise he could
not testify
how the bruise was sustained.
[17]
Sibiya is an expert in ballistic related cases. It is common cause
that he received two pistols and one fired cartridge case
to examine,
one pistol the duty weapon of Wittles, the other of Jim. The
cartridge was fired by the pistol of Wittles. He could
not tell if
any shots were fired from Jim’s weapon as no empty cartridges
were handed in.
[18]
Wittles testified that upon his arrival at the premises, he tried to
intervene between the families. He was armed with a firearm
and
pepper spray and wore a bullet proof vest. He identified the
plaintiff, Shaun and Norman. On his arrival the Koks were outside
the
gate and the Monyekis, of whom he could identify Derick, were inside.
He addressed both families. The Monyekis gave their co-operation
but
the Koks, who were drunk, left the premises after a while, swearing
and shouting. He suspected that they would return again
and told his
colleagues Jim and Mosadi to hang around. Initially there were 8-10
people, but “more people” returned
after 10-15 minutes,
armed with knob kieries, pangas, bottle heads and stones. Plaintiff
was armed with a knife. Shaun threatened
to kill Jim when off duty.
Norman took out a hammer from his jacket and wanted to hit him
therewith, but avoided being struck
therewith. He did not take the
hammer then as Norman could have broken his arm. At the same time
Norman ran into the yard and the
rest of the Koks also, whilst the
Monyekis ran into their house and shut the door. He grabbed Norman
from behind, reprimanding
him. Whilst doing so he was chased to the
back of the yard by the plaintiff armed with a knife, Norman with a
hammer, Shaun with
a panga and an unknown male with a panga. There he
realised that the fence was high and it would be dangerous for him to
climb
over in an attempt to escape, thereby turning his back on his
chasers. He instructed them to seize fighting, and said: “Ek
is
‘n
polisiebeampte
en het ‘n vuurwapen
”
.
They still advanced and he fired a warning shot in the air - yet they
advanced. One said: “Ek soek die gun”, another:
“Ek
het nog nooit ‘n polisieman doodgemaak nie”. Realising
that his life was in danger, he attempted a second
warning shot. His
firearm was pointed at 45 degrees, and lifting his right hand
plaintiff stabbed him on his hand. A shot went
off, and immediately
Norman hit him with the hammer on his chest, causing him to fall on
his back. Someone said: “Ons het
nou die fokken polisieman”.
He believed he was dead when he fell, but started running out of the
yard. At no stage did he
shoot at anyone directly. Herbst
photographed his hand and chest, but he did not complete a J88 form
in respect of the injuries.
[19]
During cross-examination by Mrs Stanton on behalf of the plaintiff,
she confronted Wittles with his affidavit deposed to on
the day of
the incident. Therein he stated that he fired the first warning shot
after the comments were uttered. In his evidence-in-chief
he
testified that the first warning shot was fired as the group
approached, and the second shot was fired after the comments.
According to him he was emotionally upset after the incident, which
might have caused the discrepancy. He conceded that he did not
make
mention of an assault by Derick in his statement. Wittles conceded
that he was armed with a firearm and pepper spray, but
replied that
he did not use the latter as it was usually blocked. He did not call
for any back up. He did not arrest anyone as
they were outnumbered
and he was taught “never to provoke a situation”. Jim and
Mosadi were also present at the premises.
He never requested the
assistance of his colleagues and conceded that he could have called
them for assistance. It is standing
procedure that they should defend
one another.
[20]
It is not denied by Wittles that the plaintiff did not have any
gunshot wounds when she entered the premises. When put to him
that he
could not deny that the plaintiff was shot three times and
sustained four wounds, he responded that he heard on the
police radio
that the plaintiff had been shot 3 times. According to him he fired
two warning shots and there were no other firearms
apart from that of
the police, but he “can confirm that his firearm could have
shot” the plaintiff. His explanation
to the question posed to
him how the
plaintiff
sustained
3
gunshot wounds, was: “Ek het gehoor as ‘n koeël
‘n vleiswond is en nie in been, kon dit gedraai
het”. When it
was put to him that the shots that were fired
by
him hit the plaintiff, he replied: “Nee ek weet nie waar dit
vandaan kon kom nie.” He
conceded
that it was not necessary to fire in protection of the Moneykis as
they were already in the safety of their house.
[21]
Jim testified that he arrived at the Monyeki residence wearing a
bullet proof vest, armed with a gun and pepper spray. He found
a
group outside at the gate. They were armed. He knew some of them.
Shane, Shaun, the plaintiff and a friend of Shaun called Sloki.
They
were between 8 and 10 people. After a while they returned and Norman
was with them. Shaun started swearing at them, and threatened
to kill
him when off duty. He saw a hammer with Norman. He saw people with
pangas and other weapons but could not identify who
had what. Whilst
talking to Norman, he ran past them into the yard, followed by the
rest of his group. He and Mosadi were at the
corner of the house and
did not want to go to the back of the yard as it was dark. He heard
Wittles saying: “Ek is ‘n
polisieman, stop julle”,
followed by a gun shot and someone saying: “Ek is geskiet.”
People came running out
of the yard and he also ran out.
[22]
In cross-examination he was confronted with his sworn statement
wherein he declared “we then draw (sic) our firearms
as we were
caught in a corner and it was dark”. He explained that he
referred to himself and Mosadi who were standing
at the corner of the
house. He insisted that he did not fire any shots and that he still
had 15 rounds in the magazine when it
was handed to Brooks. He
heard two gun shots. Jim conceded that it was not necessary to fire
in protection of the Monyekis
as they were in the safety of their
house. He conceded that he could control the group by warning them
without shooting.
[23] The defendants
closed their case.
[24]
It is trite that every infringement of bodily integrity is
prima
facie
unlawful. Once the infringement is proved, the onus rests
on the wrongdoer to prove a ground of justification.
See:
Mabaso
v Felix
1981 (3) SA 865
(A)
at 873 E-874E,
cited
with approval in
Noor
Moghamat Isaacs v Centre Guards CC
[2004] All SA 221
(C)
at para [7];
Malahe
and Others v Minister of Safety and Security and Others
[1998] ZASCA 64
;
1999 (1) SA
528
(SCA)
at
533 J – 534 A, 540 F-H.
[25]
The parties presented conflicting versions of the shooting incident
that occurred. In resolving a factual dispute, I am guided
by the
principles laid down in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others 2003 (1) SCA 11
at 14-15 para [5]:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extra curial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity
and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail.
”
[26]
I am mindful of minor discrepancies between the evidence tendered by
the plaintiff and her affidavits, as well as the testimonies
of
Norman and Mrs Oliphant. So for example was plaintiff
confronted with the fight in the tavern over a chair and that she
omitted to mention in court some remarks of a “grootmanhouding”
towards Norman as stated in one of her affidavits.
In my view these
were not material. The plaintiff made a satisfactory impression on me
in the witness stand and I found her to
be adamant when testifying
regarding the shooting incident. She and her witnesses corroborated
one another in the material aspects
on what transpired during the
critical time of the shooting. Her version explains how she sustained
four gun shot wounds (one shot
causing two wounds, namely an entry
and exit wound). Sibiya and Herbst made favourable impressions on me,
although neither had
knowledge of the shooting incident itself.
Wittles and Jim made less favourable impressions on me. For the
reasons stated herein
later I conclude that Wittles’ and Jim’s
versions are improbable.
[27]
It can be safely accepted that on 25 December 2014 the plaintiff got
injured at the time when the second and third defendants,
in the
course of their employment with the first defendant, went to a
premises in Jacobsdal to attempt a restoral of peace between
the
plaintiff’s family and the family of the Monyekis.
[28]
According to the plaintiff she was shot three times and sustained
four bullet wounds as described by her during her evidence
in chief.
The evidence of her mother confirms the existence of the wounds. I
may add that Wittles testified that directly after
the incident he
heard on the police radio that the plaintiff had been shot three
times. That she sustained four wounds had neither
been contested in
cross-examination, nor in testimony by any of the defendants. I
am satisfied that plaintiff’s evidence
regarding the injuries
sustained is to be accepted by me.
[29]
The defendants on the other hand aver that she got injured in
circumstances which in essence boils down thereto that they acted
either in self defence or in defence of the Monyekis.
[30]
To be successful with such a defence it is incumbent on the
defendants to proof an unlawful attack, reasonable grounds for
believing that the defendant was in physical danger and that the
force used was in the particular circumstances necessary to repel
the
attack and commensurate with the plaintiff’s aggression.
See:
Sv
Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC)
at para
[138]
.
Mabaso v Felix
supra.
[31]
Perhaps it is appropriate to point out that provocation may mitigate
damages but it obviously does not justify an assault.
See:
Winterbach
v Masters
1989 (1) SA 922
(ECD)
at
925 I
[32]
Both Wittles and Jim during cross-examination testified that at the
time of the shooting (on their own versions) the necessity
to protect
the Monyekis lapsed as they were safely in their house. The only
circumstances therefore in which the defendants would
be able to
justify the use of the force of shooting were in the event of
self-defence.
[33]
On the version of the defendants there is no explanation why the
plaintiff sustained the wounds. In fact, none of the defendants
aver
that they shot at the plaintiff on purpose to protect themselves.
Wittles at best testified that he fired a warning shot into
the air
and that a second shot went off at a time when he was attempting to
lift his firearm when plaintiff stabbed him in his
right hand with a
knife. Assuming that the second shot struck the plaintiff it
still does not explain the four gunshot wounds.
The witness did not
testify that the second gun shot struck the plaintiff although he
conceded that the second shot could have
struck her.
The
uncertainty of the witness concerns me. It is reasonable to assume
that had it struck her, he would have noticed it as they
were in
close proximity. It is reasonable to assume that had he shot her in
these circumstances, the shot would have had the effect
to stop her
attack and one would in probabilities have expected her at least to
have cried in agony and that he would have noticed
it. Even Jim
testified that he heard the plaintiff saying: “Ek is geskiet.”
[34]
On the evidence of the defendants there is no explanation of how the
plaintiff therefore sustained four gunshot wounds. The
onus is on the
defendants to prove on a balance of probabilities why it was
necessary to shoot and that the force used was necessary
to repel the
attack. The evidence of the defendants falls short in this regard. I
may add that the plaintiff’s evidence do
explain the
circumstances under which she sustained these particular injuries.
[35]
I accept that the defendants on the evening went to restore peace. I
bear in mind that the incident took place not at plaintiff’s
property but at the property of the Monyeki’s. The plaintiff
and her family members in attendance at the gate of the Monyeki’s
were in all probabilities aggressive. The defendants being trained
police officers are to deal with circumstances like these to
the best
of their ability. They went there not only armed, but also in
possession of pepper spray. When they left, only the plaintiff
(who
is a women), sustained three gun shots without the defendants being
able to account for each one of those shots. They simply
cannot
explain how she sustained the wounds.
[36]
In the circumstances I cannot find that the defendants have proven
self defence, nor that any of the other defences pleaded
have been
proven.
There
is no reason why costs should not follow suit.
I make the following
order:
1.
It is
declared that the defendants assaulted the plaintiff on the morning
of the 25 December 2014 and that defendants are jointly
and severally
liable for such damages as the plaintiff may prove.
2.
The
defendants are to pay the costs jointly and severally.
3.
The case is
postponed to the Rule 37 (8) civil pre-trial court roll of 14 May
2018 to deal with the remainder of the issues which
stood over for
later determination.
_____________
C
REINDERS, J
On behalf of Plaintiff:
Adv A. Stanton
Instructed by:
Hugo Mathewson &
Oosthuizen Inc.
c/o Van Wyk & Preller
Attorneys
Bloemfontein
On behalf of
Defendants: Adv. B.S. Mene
Instructed by:
State Attorneys
Bloemfontein