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[2017] ZAGPPHC 421
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Ramatlo v Mphela and Associates and Another (45224/2014) [2017] ZAGPPHC 421 (29 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 45224/2014
REPORTABLE:
YES
OF
INTERESTTO OTHERS JUDGES: YES
In
the matter between:
KATLEGO
SANAH
RAMATLO
Plaintiff
and
MPHELA
&
ASSOCIATES
First Defendant
TSHEPO
MATLALA
Second
Defendant
APPLICATION
FOR LEAVE TO APPEAL
JUDGMENT
Baqwa
J
[1]
This is an application in terms of
section 17
(1) of the
Superior Courts Act No. 10 of 2013
which states that:
"17 (1) Leave to
appeal may only be given when the judge or judges concerned are of
the opinion that (a)(i) the appeal would
have a reasonable prospect
of success;"
[2]
I have been presented with heads of argument by both counsel
herein who have also made oral submissions in line with those heads.
[3]
I have considered the findings of fact and law in my judgment
together with counsels' submissions. In his heads of argument counsel
for the applicant makes reference to the case of
Crown Chicken
(Pty) Ltd ta/ Rocklands Poultry v Rieck
2007 (2) SA 118
SCA at
paras 13 and 14, in which Nugent stated
inter
alia
as follows:
"(13)
Thus, whatever the correct jurisprudential approach,
a
person
who causes bodily injury by
a
positive act will avoid
liability for the harm that he caused, on either approach, only if
the reasonable person in the position
in which he found himself would
have acted in the same way. Considerations that are to be brought
into account in determining whether
the conduct was reasonable are
described by Van der Walt and Midgley
as
follows:
"A
person
may
inflict
harm
in
situation
of
necessity
only
if
the
danger
existed
or
was imminent.
The
means
used
and
measures
taken
to
avert
the
danger
of
harm
must not
have
been
excessive,
having
regard
to
all
the
circumstances
of
the
case.
The nature
of
the
threat,
the
extent
of
the
harm,
the
likelihood
of
serious
injury
to
persons, and the value
of the interest threatened must, for example, be taken into
consideration.
It
must
have
been
the
only
reasonable
possible
means
of
averting
the danger. Similarly, although any interest may be protected,
the interest infringed or harm inflicted should not
be
greater
than the interests protected or the harm prevented."
[14]
Essentially, what is called for is weighing against one another of
the gravity of the risk that it was created by the defendant,
and the
utility of this conduct. As it is expressed by Boberg: the
proportionality in the sense of preponderance of avoided over
inflicted harm, is
a
traditional postulate of necessity. In
short, the greater the harm that was threatened, and the fewer
options available to
prevent it, the
greater
the
risk of reasonable person would be
justified
in
taking and
vice
versa."
[4]
As
can be seen from the facts are summarized in my
judgment the means used by the police were stun grenades and rubber
bullets some
of which struck and injured the respondent herein. There
is no evidence that the respondent herself presented any imminent
danger
to the police or the property in the vicinity.
[5]
Counsel for the respondent, making reference to the same
judgment argues and I agree that the means used by the police in the
circumstances
were excessive in that there was no evidence of any
water cannons or tear gas presented and that the means used were
therefore
not the only reasonable means of averting the danger.
[6]
Counsel for the applicants in supporting the submission that
the police acted out of necessity refers to paragraph 3.2.1.2 of the
first and second defendants' amended plea which reads as follows:
"The
protesting students threw stones at the University premises damaging
the University's property which prompted the members
of the SAPS to
fire rubber bullets in order to disperse the violent students and
protect the University's property from further
malicious damage by
the protesting students."
In
my judgment, I have not referred to any other means other than the
stun grenades and rubber bullets because there was indeed
no evidence
of any other means used by the police.
[7]
I have also considered that the defendants did not even testify in
the trial. Counsel for the applicants has submitted that
it was not
necessary for them to do so which I consider to be strange in light
of the fact that there is no link between the failure
to prosecute
the plaintiffs claim, which they admit was negligent, and the
evidence given by the police. They could have been expected
to
testify that they consulted with the police and having considered
whatever evidence they would have obtained from the police,
they
formed the view that the probabilities of the plaintiff succeeding in
an action against the police did not exist. There was
simply no such
evidence leaving a lacuna in the defendant's evidence. If the
plaintiff had been timeously advised of their adverse
opinion
regarding her claim, she could have consulted other attorneys who
would have prosecuted her claim. There was no evidence
to excuse the
defendants' negligence in their failure to prosecute the claim.
[8]
In my view, the Court cannot step in and fill in the lacuna by
providing the basis for the attorneys' conclusion or inaction.
Put
differently, the chain of evidence on the defendants' part was
incomplete.
[9]
In the circumstances, having listened to counsel and having
considered the matter and for the reasons stated in my judgment,
I am
not persuaded that the appeal would have any reasonable prospects of
success.
[10]
In the result, the application for leave to appeal is dismissed with
costs.
_________________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date
of Hearing:
29 March 2017
Date
of Judgment:
29 March 2017
For
the Plaintiff:
Advocate M. Demeyer
Instructed
by:
Sekati Monyane Attorneys Incorporated
For
the
Defendants:
Advocate V. D. Motsweni
Instructed
by
:
Gildenhuys
Malatji Incorporated