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[2017] ZAGPPHC 103
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Maphoto v Minister of Safety and Security (269/14) [2017] ZAGPPHC 103 (29 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
29/3/17
CASE
NO: 269/14
REPORTABLE:
NO
OF
lNTEREST TO OTHER JUDGES: .NO
In
the matter between:
ANISTA
RAMADIMETJA
MAPHOTO
Plaintiff
and
THE
MINISTER OF SAFETY
AND
SECURITY
Defendant
JUDGMENT
PETERSEN
AJ:
INTRODUCTION
[1]
The plaintiff instituted action against the defendant for damages
arising from the alleged unlawful, intentional alternatively
negligent act/s or omissions by the police when shots were
fired at the plaintiff's vehicle in which she was travelling on
12
January 2011 on Mananga Road (R571) toward the N4 to Komatipoort.
[2]
It is common cause that that the plaintiff, Mrs Anista Madimetja
Maphoto, was travelling in a Toyota bakkie along Mananga Road
towards
the N4 freeway to Komatipoort on 12 January 2011. The road is known
for its use by vehicle theft and hijacking syndicates
to move
vehicles illegally across the border to Mozambique through adjoining
farms. Warrant Officer JH Smith, whilst on duty acting
within the
course and scope of his employment with the defendant, fired four
shots at the vehicle of the Mrs Maphoto as she drove
the vehicle. Mrs
Maphoto sustained no physical injuries but the wheels of her vehicle
were damaged.
THE
ISSUES
[3]
It remains in dispute whether Warrant Officer Smith acted unlawfully
when he shot at Mrs Maphoto's vehicle; was negligent when
he shot at
the vehicle; and whether he acted with the intention to injure Mrs
Maphoto when he shot at the vehicle.
THE
EVIDENCE
[4]
The Toyota bakkie in which Mrs Maphoto was travelling is known to be
the subject of theft and hijackings. Warrant Officer Smith
and his
colleague Warrant Officer Nel upon seeing the vehicle approach from
the opposite direction with a conspicuous Limpopo registration
plate
in Mpumalanga decided to turn and follow the vehicle. The evidence of
Mrs Maphoto and Warrant Officer Smith evidence is in
conflict on the
sequence of events of that fateful evening. It is in conflict on
whether Mrs Maphoto's vehicle had stopped on the
side of the road in
compliance with the blue light and siren used by Warrant Officers
Smith and Nel who alighted and approached
the vehicle armed with an
R5 rifle and 9mm pistol respectively and then pulled off and sped
away at high speed; or whether there
was one incident where Mrs
Maphoto was followed by a vehicle with blue lights driving on its
bright lights at a speed which could
not have exceeded 80km/h.
[5]
Warrant Officer Smith claims that the plaintiff's vehicle was
travelling at a speed they could not keep up with. When he realised
that they were about 3km from the N4 freeway/R571 T-junction and a
high speed chase on the N4 could result in injuries, he decided
to
shoot at the wheels of the vehicle with the RS rifle with the sole
intention of stopping the vehicle before it could enter the
N4. He
fired four (4) shots at the wheels of the vehicle, two (2) at the
right front wheel and two (2) at the left front wheel.
The vehicle
drove for 300m metres after the shots were fired and came to a
standstill on the side of the road as both front tyres
were shot out.
They stopped behind the vehicle and approached it in similar fashion
to the first stop. Notwithstanding an instruction
to the occupant/s
to alight from the bakkie nobody emerged. Warrant Officer Nel opened
the right door and found the plaintiff in
the vehicle. When Warrant
Officer Nel asked the plaintiff why she had sped off after they had
pulled her over she explained that
she had seen on television how
people were hijacked by the police and that is why she tried to get
away from them. The vehicle
was inspected and there was nothing amiss
with it. It is his evidence that if he wanted to stop the driver he
would have shot straight
through the back window at the driver and
not the tyres. Warrant Officer Smith persisted in his evidence in
chief and was not swayed
under cross examination that the sole reason
for following the vehicle was to stop it and verify the identity of
the vehicle through
its vehicle identification number (VIN number)
and not to effect an arrest. He denies that he was negligent in any
way.
[6]
Mrs Maphoto, a teacher by profession, claims that at around 20h00pm
about 10km from the N4, her cellular phone rang. She moved
slightly
to the left of the road to collect her phone but did not stop. At
this stage she did not notice anything around except
the fields along
the road and two motor vehicles subsequently approaching from the
front. She spoke on her cellular phone and continued
driving, when a
vehicle suddenly appeared behind her with its bright lights which
disturbed her. She diverted the glare with her
rear view mirror
whilst the vehicle was not far behind her. She explained
to the person she was talking to what was
happening, who in
turn told her to phone when she got home to confirm if she was fine.
At this stage she saw blue lights, with
the vehicle remaining behind
her, coming up close and then moving back again. She continued
driving as she did not want to stop
on the unlit the rural road,
fearing that she feared may be hijacked in similar fashion to a
friend who had been hijacked two weeks
earlier by persons using blue
lights. She was travelling at 80km/h because of animals that could
enter the road at any stage. Besides
the blue light of the vehicle
she did not notice anything else about it. She decided to drive on as
she knew there were two garages
along the road where she believed it
would be safe to stop. Before reaching the N4 not far from where she
had seen the vehicle
behind her, she suddenly heard sounds, akin to
stones hitting the bakkie. The vehicle lost power as it would no
longer accelerate
and she stopped the vehicle on the side of the
road. Two white males emerged on either side of her vehicle with big
firearms pointed
inside her vehicle through the untinted, smash and
grab treated windows. The unidentified males spoke simultaneously,
instructing
her to get out of the vehicle; she was pulled from the
vehicle and at that stage noticed that they were police officers as
the
one of the left side of the vehicle was wearing a T-shirt with
small police emblem on the pocket. She also observed that the vehicle
which had pursued her was a police vehicle with a canopy marked
Lebombo Border. Mrs Maphoto consulted a Psychologist who booked
her
off work for three months and referred her to a Psychiatrist. She has
had flashbacks of the incident and has moved from Lydenburgh
where
was teaching to be close to family on the advice of her Psychiatrist.
ONUS
[7]
The
defendant
bears
the
onus
of
justifying
the
lawfulness
of
the
shooting by
Warrant
Officer
Smith.
Whilst
the
defendant
had
the
duty
to begin
to
justify
the
lawfulness of
the
shooting
the
plaintiff
still bears
the onus
of
proving
that
the
actus
reus
of
Warrant
Smith
was
negligent.
The
plaintiff's
onus
in
proving
negligence
must
be
considered
against
the
test set
out
in
Kruger
v
Coetzee
[1]
, where
the
Court
held that:
"For
the
purposes
of
liability
culpa
arises
if
-
(a)
a
diligens
paterfamilias
in
the
position
of
the
defendant
-
(I) would
foresee
the
reasonable
possibility
of
his conduct
injuring
another
in his
person
or
property and causing
him
patrimonial
loss; and
(ii) would
take
reasonable
steps to
guard against
such
occurrence;
and
(b)
the
defendant
failed to
take
such
steps.
This
has been
constantly
stated
by
this
Court
for
some
50
years.
Requirement
(a)
(ii)
is
sometimes
overlooked.
Whether a
diligens
paterfamilias
in
the
position
of
the
person
concerned
would
take
any
guarding
steps
at
all
and,
if
so,
what
steps
would
be
reasonable,
must always
depend
upon the
particular
circumstances
of
each
case.
No hard
and fast
basis can
be
laid down.
Hence
the
futility,
in general,
of
seeking
guidance
from
the
facts
and results
of other cases."
THE
DEFENCE
[8]
The defendant did not plead section 49(2) of the Criminal Procedure
Act, Act 51 of 1977 as a defence, where deadly force would
have to be
justified to effect the arrest of a fleeing suspect. Warrant Officer
Smith's evidence likewise does not raise the defence
as he was
adamant that his intention was to verify the identity of the motor
vehicle and not to effect an arrest. The sole intention
of shooting
at the wheels of the plaintiff's vehicle, in turn, was to stop the
vehicle to prevent any potential harm to other road
users. The
defence of section 49(2) of Act 51 of 1977 was raised by Counsel for
the plaintiff and formed the basis of submissions
both at an
application for absolution at the end of the case for the defendant
and at the close of the trial.
[9]
The defendant had not pleaded reliance on section 49(2) of Act 51 of
1977. It is my considered view that section 49(2) accordingly
finds
no applicability in the determination of the issues in dispute. The
matter considered in its totality rather calls for a
value judgment
which is to be premised on the test for negligence set out in
Kruger
supra.
THE
CONFLICTING VERSIONS
[10]
The court
is
faced
with two
mutually destructive versions.
In
Stellenbosch
Farmers
Winery
Group
Ltd
&
Another
v Martell ET
Cie
[2]
Nienaber
JA
described
the
technique
generally
employed
by
the
courts
in
resolving factual
disputes
which
I
am enjoined to
employ
as follows:
"The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarized 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' 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 own version, (vi) the
caliber and cogency of his performance compared to that of other
witnesses testifying about
the same incident or events. As to (b), a
witness' 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."
EVALUATION
[11]
As to the credibility, reliability and probabilities of the matter
inherent in the evidence of the two factual witnesses on
the sequence
of events, Warrant Officer Smith made a favourable impression on the
court as opposed to Mrs Maphoto. Upon a careful
preponderance of the
totality of the evidence, I can find no cogent reason why he would be
untruthful about having stopped the
plaintiff on two occasions as
opposed to one on the plaintiff's version. This view is supported by
the evidence of Warrant Officer
Smith that they were unable to keep
up with the vehicle of the plaintiff as it sped off at the first
occasion and Mrs Maphotos'
own evidence that the vehicle she saw
behind her would move in close and then move back again. It is for
this reason that it is
highly unlikely on her version that she was
travelling at a constant speed of 80km/h and when one considers her
evidence that she
was concerned that her pursuers could be hijackers.
It is more likely that on Warrant Officers Smith's evidence that the
plaintiff
was travelling at high speed. The plaintiff confirms seeing
the blue light of the vehicle behind her, but inexplicably did not
hear the siren. The reason put forward for this is that the radio in
her vehicle was on and loud. It is questionable why the plaintiff
would keep her radio on loud and engage in conversation with a
friend, incidentally at the same time that Warrant Officer Smith
testifies the vehicle was pulled off the first time. The plaintiff on
her evidence was prompted to drive on because of her knowledge
of a
robbery incident involving her friend and blue lights two weeks
earlier. If that were the case, there appears nothing amiss
with what
the plaintiff did, considering the widespread knowledge of incidents
involving the use of blue lights by unscrupulous
criminals. The
concern, however, is the plaintiff's attempt at downplaying her role
in the unfortunate events of that evening.
The plaintiff's evidence
shows that she was not aware that shots were either fired at her or
her vehicle. At most she heard what
sounded like stones hitting her
vehicle. The discovery that shots were fired at her two front wheels
which were both shot out was
made after she alighted from her
vehicle. The damage to her wheels is common cause. On the alleged
emotional shock and trauma suffered
by the plaintiff, I cannot find
any causal link to her
ex
post
facto
discovery of the damage to her wheels caused by the shooting. I
accordingly find that the probabilities on the sequence of events
favour the evidence of Warrant Officer Smith and consequently the
defendant.
[12]
The acceptance of Warrant Officer Smith's evidence on the sequence of
events is not the end of the enquiry as this court is
still enjoined
to consider the test for negligence set out in
Kruger
supra, in so far as it relates to the damage to the vehicle of
the plaintiff. With the benefit of hindsight, damage was caused to
the vehicle of the plaintiff, which Warrant Officer Smith, a
reasonable experienced police officer, using an RS rifle should have
foreseen. The question is whether Warrant Officer Smith should have
taken reasonable steps to avoid the shooting and if such steps
on the
peculiar facts of the matter can said to have been reasonably
available, but he failed to take them, rendering the defendant
liable
for the patrimonial damages to the vehicle of the plaintiff. Warrant
Officer Smith's evidence is that he decided to shoot
at the wheels to
bring the plaintiff's vehicle to a standstill, so as to avoid any
injury to life or limb on the upcoming N4 freeway.
Warrant Officer
Smith had radio contact. The opportunity to contact colleagues to
assist with a roadblock was not unrealistic.
The fact that he was
able to shoot out the front wheels on either side of the plaintiff's
vehicle shows that catching up with the
vehicle was not unrealistic
either. The likelihood of the vehicle of the plaintiff overturning at
high speed once the wheels had
been shot out should likewise have
been considered. I accordingly find that on the test for negligence
Warrant Officer Smith's
actions in shooting at the vehicle of the
plaintiff, was negligent.
RESULT
[13]
In the result the plaintiff's action for damages to her vehicle
succeeds. The plaintiff's action for past medical expenses,
future
medical expenses, past loss of income and future loss of earnings and
general damages fails.
ORDER
[14]
Judgment is granted in favour of the plaintiff on the merits of the
action for patrimonial damages to her motor vehicle. The
determination of the quantum of the damages is postponed
sine
die.
[15]
The defendant is ordered to pay the costs of plaintiff, including
costs of Counsel.
_______________________
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Appearances:
On
behalf of the Plaintiff: Adv. AC Gobetz
Instructed
by Pieter Nel Inc
On
behalf of the Defendant: Advocate DD Mosoma
Instructed
by THE STATE ATTORNEY, PRETORIA
DATE
HEARD: 18 October 2016
DATE
Of JUDGMENT: 29 March 2017
[1]
1966 (2)
SA 428
(A) at 430
E-H
[2]
2003 (1) SA 11
(SCA) at 141-J -
15A-D