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[2016] ZAGPPHC 287
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Minister of Police v Motlapelo (A93/2014) [2016] ZAGPPHC 287 (29 April 2016)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA]
29/4/16
Not reportable
Not of interest to
other judges
Revised.
CASE NUMBER: A93/ 2014
NGHC CASE NO: 15033/11
In the matter between:
MINISTER OF POLICE
APPELLANT
(Defendant a quo)
And
MALEFO RAKE MOTLAPELO
RESPONDENT
(Plaintiff a quo)
MAVUNDLA J.
[1] This is an appeal
against the whole judgment and order of Thobane AJ delivered on 5
November 2013, with the leave of the Court
a quo
having been
granted on 5 February 2014.
[2] At the commencement
of the trial the Court
a quo
ordered in terms of Rule 33(4),
by agreement between the parties, that the matter proceed only on the
merits, the issue of quantum
standing over for later determination.
[3] It is common cause
that the respondent was shot with a rubber bullet on the leg by one
Captain W. A. Smidt who was at the relevant
time acting in the course
and scope of his employment with appellant on the 13 May 2009 at
Rosslyn.
[4] The appellant pleaded
self-defence and in the alternative necessity. To buttress its
defence the defendant called two witnesses,
namely Captain W. A.
Smit, Warrant Officer M. L. Leboho.
[5] At the closure of the
appellant's case, the respondent closed his case without testifying.
The trial Court found in favour of
the respondent and ordered the
appellant to pay the respondent's full proven or agreed damages
suffered as a result of the shooting
of the 13th May 2009 with costs
relating to the liability. It is against this judgment and order that
is appealed against.
[6] The only issue to be
determined was whether the shooting was wrongful, unlawful and or
negligent, as pleaded by the appellant.
It is trite that the
onus
rested on the appellant, to demonstrate that the shooting was
justified, if it was done in self defence or out of necessity. In
this regard in
Mabaso v Felix
1981 (3) 865 (AD) at 876F the
Appellate Court held that "Turning now to the pleadings in the
present case we think that their
essence and effect are as set out
above. Consequently, according to substantive and adjective law, the
onus
was on the defendant to prove that in shooting and
injuring the plaintiff he acted in self-defence and that such
shooting was reasonably
and legitimately required for defending
himself. The Court
a quo
therefore erred in imposing that
onus
on the plaintiff."
[7] In Kgaleng v Minister
of Safety and Security and Another
2001 (4) SA 854
(WLD) at 65 the
Court held that: A plea of defence is aimed at showing that the
attack by the defendant was not wrongful. For that
very reason, the
test is objective. The legal position is thus summarised by Boberg
The Law of Delict vol 1(1984) at 788:
'The enquiry is factual,
and - since the issue is wrongfulness, not fault - the test is
objective. Thus the question is not whether
the defendant believed
his conduct to be justified, but whether the law considers it so.
This, in turn, depends on whether it was
a reasonable response for
the defendant to make to the situation, judged objectively and even
with hindsight - though not without
regard to the individual
defendant's resources, motives and circumstances, for no test can be
applied in a vacuum. If the test
is satisfied the defendant escapes
liability because he acted lawfully in a situation of necessity or
defence. If the test is not
satisfied the defendant cannot invoke
necessity or defence to justify his conduct, which therefore remains
wrongful.'
[8] It is common
casu
that Captain W. A. Smit, Warrant Officer M. L. Leboho on the 13
May 2009 the day of the incident complained of, as employees and
in
the course of their employment with the of the defendant respondent,
to a complaint of intimidation at 98 Sloan Street that
a white Nissan
Truck was in the middle of the road and under attack.
[9] On their arrival at
the scene, they observed a group of about 80 people surrounding the
truck. Others were on top of the truck
and they were assaulting the
occupants of the truck. Smit testified that: At the truck there were
about 80 black males that were
standing in the middle of the road.
Some of them were in front of the truck, some of them were in between
the trailer and the horse
and some of them were at the back, on top
of the truck, busy assaulting the workers that were inside the truck
through the windows.
[1]
Others
were on top of the truck and others on the side. They tried to
negotiate with this group of people and tried to remove them
away
from the truck. They were then surrounded by this group and he was
pushed by a male with both his hands on his chest. This
man was
wearing a green shirt and dark blue trousers. Smit fell against the
truck and at this stage feared for himself, as well
as his colleague
and the safety of the people that were inside the back of the truck
as well as the driver and also the property
of the company, the truck
itself. At that stage he took his shotgun and shot one rubber 12 gage
round into the ground. The group
started to move away from the
truck.
[2]
[10] According to Leboho
the crowd surrounded them and their lives were in danger. They tried
to negotiate with them but they were
not talking, page 128 lines 9-
12.They went inside the crowd and then the crowd started surrounding
them and pushed them against
the truck; page 129 lines 13-14. The
people inside the truck could not jump out. Smit fired a shot into
the ground as the crowd
pushed them against the truck and the crowd
dispersed. Page131 lines 16-21 and page 132 lines 1- 17.
[11] It is now trite that
a court of appeal is reluctant to upset the findings of the trial
court, which is in a better position
to estimate what is probable or
improbable,
inter alia.
The court of appeal will only reverse
the trial court's findings where the reasons for its findings are
unsatisfactory;
vide Rex v Dhlumayo and Another
1948 (
2) SA
677
(A).
[12] In my view, the
evidence referred to herein above demonstrates, on objective
evaluation, that the situation was volatile and
that it warranted the
protection of both the people in the truck as well as Smit and
Leboho.
[3]
This much was
accepted by the trial Court. In a volatile situation, as
in
casu,
it
is neither here nor there that the witnesses contradict each other on
whether the shot was directed to the right or to the left.
In
casu,
both
witnesses are
ad
idem
that
the shot was fired into the ground. This much is corroborated by the
very fact that the plaintiff was shot on the foot. The
evidence from
the record places the plaintiff, as the person in green, in close
proximity to Smit. In my view, the trial court
misdirected itself in
finding that it was improbable that Smit fired a shot into the
ground.
[13] In my view,
objectively speaking, the firing of the shot into the ground was
reasonable. Of particular importance, is the very
fact that no one is
alleged to have been shot on the upper body. Had this been the
position, that fact would have controverted
the version of the two
police officers that the shot was directed to the ground.
[14] In the circumstances
of the situation
in casu,
as explained by the two police
officers, in my view, the conduct of Smit was reasonable. This
finding is inescapable particularly
because the plaintiff did not
adduce any evidence to controvert that of the defendant. A plaintiff,
who closes his case where there
is damning evidence, does so at his
own peril.
[15] In the
circumstances, I am of the view, that the trial court misdirected
itself in rejecting the evidence of the defendant
and finding that
the defendant failed to discharge the
onus
resting on it that
there was threat against the life of the people in the truck, Smit
and his colleague and the property, in particular
the truck,
warranting the firing of the shot which caused the injury to the
plaintiff. The appeal stands to be upheld.
[16] The appellant
engaged the services of senior counsel. In my view, this is a matter
which did not warrant the services of senior
counsel. The issues were
not complicated and a seasoned junior counsel could have adequately
handled this matter. Therefore the
appellant is not entitled to the
costs attended to the employment of senior counsel.
[17] In the premises, I
would make the following order:
1. That the appeal is
upheld with costs such costs to exclude the costs of senior counsel,
save costs of counsel calculated on the
scale of a senior junior
counsel;
2. That the order of
Court
a quo
of 5 November 2013 is set aside and substituted
with the following order:
"That plaintiff's
action is dismissed with costs."
________________________
N.M. MAVUNDLA
JUDGE OF THE HIGH
COURT
I agree, and it is so
ordered
________________________
W.R.C PRINSLOO
JUDGE OF THE HIGH
COURT
I agree, and it is so
ordered
_________________________
K.E. MATOJANE
JUDGE OF THE HIGH
COURT
DATE OF
HEARING
: 28 / 01/ 2015
DATE OF
JUDGMENT
:
I
04/ 2016
APPELLANT'S
ADV
: ADV A.C. FERREIRA SC
with ADV L. A. PRETORIUS INSTRUCTED
BY
: STATE ATTORNEY PRETORIA
RESPONDENT'S '
ADV :
ADV K.K. KEKANA
INSTRUCTED
BY
: MPHELA AND ASSOCIATES
[1]
Page 79 line 3-11 of volume 2 of 2 pages of the record.
[2]
Page 79 lines 12-lines 1-5 page 80 of volume 2 of the record.
[3]
Page 173 lines 1-3.