Mageza v Minister of Safety & Security (70310/09) [2015] ZAGPPHC 327 (30 April 2015)

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[2015] ZAGPPHC 327
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Mageza v Minister of Safety & Security (70310/09) [2015] ZAGPPHC 327 (30 April 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
70310 /09
DATE: 30 APRIL
2015
REPORTABLE
OF INTEREST TO
OTHER JUDGES
In the matter
between:
DANIEL
THABANG
MAGEZA
........................................................................................................
Plaintiff
and
THE
MINISTER OF SAFETY
& SECURITY
..............................................................................
Defendant
(now THE MINISTER OF
POLICE)
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
[1] The plaintiff
(“Mageza") is a 36-year-old male cellphone technician who
resides at Soshanguve Extension 4, Gauteng
Province. He instituted an
action against the Minister of Safety and Security, now Minister of
Police (“the defendant”)
and claimed payment of an amount
of R490 000.00 (Four Hundred and Ninety Thousand Rand) for damages he
suffered as a result of
his arrest, assault and detention which
according to him was unlawful.
[2] The trial
commenced on 26 January and adjourned on 28 January 2015. Counsel
agreed to submit written heads of argument and requested
reasonable
time to do so. I granted them until 20 February 2015. Judgment was
according reserved.
THE PLEADINGS
Particulars of
Claim
[3] In his
particulars of claim, Mageza alleged that he was arrested by unknown
members of the “South African Police Force”
on 31 March
2009 at or near Total Garage, Transfer, Soshanguve Township, without
a warrant.
He
also alleged that in the process of the arrest, he was also shot at
by the said unknown members of the defendant and was seriously

injured. The bullet entered through the left side of his back and
exited on the left front,
“
causing
severe internal injuries
,
including
shattering plaintiff’s ribs and perforating his left lung
”
After his arrest, he
was detained at Soshanguve Police Station from 31 March 2009 and
appeared at the Soshanguve Regional Court
on 09 April 2009 and was
remanded in custody until his release on bail on 21 April 2009.
Plea
[4] The defendant
filed a plea and admitted firing shots at the Toyota Tazz vehicle
(“the Tazz") in which plaintiff was
an occupant, arresting
and detaining him. However, it was denied that its members’
conduct was unlawful.
I deem it necessary
to reproduce the material parts of the plea in as far as the
justification for the arrest and firing of shots
at the Tazz is
concerned.
"3.
Ad
Paragraph 3
The defendant
denies that the arrest of the plaintiff took place at or near Total
Garage Transfer.
The defendant
pleads that the members of the South African Police Service received
information that on the 31
st
of March there was going to
be an armed robbery at a nearby shopping complex in Soshanguve.
The
information contained the description of certain types of vehicle
together with the plaintiff who was amongst the
members
who was part of a
gang that was going to commit an armed robbery.
The
members of the South African Police Service waited on the 31
st
of March 2009 for the identified vehicles and the identified members
in order to prevent the armed robbery of cash in transit Whilst
the
members of the gang of which the plaintiff was part of, was waiting
at the Total Garage, the members of the South African Police
Service
surrounded the two vehides together with their occupants
.
The
vehicle,
in
which fhe
plaintiff
was an occupant fled from the scene and nearly drove over one of the
members
of the South
African Police Service. Whilst fhe vehicle was fleeing fhe scene,
shots were being fired from fhe alleged vehicle at
fhe
members
of fhe South
African Police Service.
They
chased and
suit (highlighted as meaning not clear)
for about 5 kilometers
also and fhe vehicle, in which the plaintiff was an occupant In, was
eventually
cornered.
Whilst
there was a chase the occupants were firing at the members of the
South
African
Police Service who
were in pursuit.
The plaintiff was
arrested for committing an offence before members of the defendant.”
[5] The defendant
pleaded further that Its members acted in self-defence as they were
being shot at and that the vehicle in which
the plaintiff was an
occupant refused to stop after being ordered to do so.
[6] The duration of
the detention was placed in issue. It was also admitted that
plaintiff suffered injuries and was treated in
hospital but the
sequelae of such injuries were denied.
PRE-TRIAL:
ADMISSIONS, CONCESSIONS AND ISSUES IN DISPUTE FOR DETERMINATION
[7]
Pre-trial conferences were held on 14 December 2010, 13 August 2013
and 02 February 2014. Nothing material was agreed on. Surprisingly,

and despite admitting the arrest, firing of shots and detaining the
plaintiff, the defendant maintained that the onus of proof
on all
these aspects and the duty to begin
"should
be argued and determined by the trial court"
[8]
On why the plaintiff was shot, the defendant’s response was
that the defendant
“
fired
back when he was shot at"
1
.
[9] The plaintiff
served a request for further particulars for trial purposes on the
defendant’s attorneys on 12 December
2014. Mr. Minaar, for the
defendant informed me when the trial commenced that the response he
got was that the questions raised
were matters of evidence. The
questions raised and answers sought amongst others were whether; (a)
the plaintiff fired shots at
members of the defendant, (b) any member
of the defendant was struck by any bullet fired by occupants in the
vehicle plaintiff
was in; and (c) the members of the defendant were
dressed in uniform.
[10]
The only agreement between the parties was that issues of merits and
quantum should be decided separately in terms of Rule
33(4).
CONSEQUENTLY,
I
granted an order to separate the merits from quantum and the trial
proceeded on merits only.
TRIAL BUNDLES
[11]
Other than the pleadings, Notices and Pre-trial bundles, the
following trial bundles were handed in and I marked them as follows:
Exhibit
A
:
Photo album and a sketch plan compiled by a member of the Local
Criminal Record Centre, Warrant Officer, SS Moyane.
Exhibit
B:
Copy
of docket 682/03/09 (continue from exhibit C)
Exhibit
C:
Copy
of docket 682/03/09; and
Exhibit
D:
Copy
of docket 116/04/09
EVIDENCE
LED
Defendant
[12] When the trial
commenced, the parties informed me that they had agreed that the
defendant would begin to lead evidence. I did
not understand this to
mean that the issue of onus of proof has been settled because at the
end of the trial I was advised that
it was still an issue that I
should decide.
[13]
The first witness was
STEVEN
SOLOMON MOYANE.
He
testified that he is a draughtsman, photographer and a forensic field
worker. On 31 March 2009 at about 14:00 , he received a
call that he
should attend to a scene of crime at Soshanguve. He arrived there at
about 14:45. He found one Warrant Officer Van
Dyk who was in charge
of the scene. He introduced him to other crime scene officers. He was
shown some spent cartridges, a silver
Toyota Tazz and Almera motor
vehicles, two deceased persons, firearms and cellphones that were
allegedly found at the scene as
well as a third party motor vehicle
(that was not involved) and a house that was shot at.
[14] He identified
the photographs 1 to 8 in Exhibit A as those of the Toyota Tazz motor
vehicle and photos 139 to 142 as those
of the Almera motor vehicle.
He also identified photos 45 to 63 in Exhibit A as the firearms that
were found in the Toyota Tazz
motor vehicle.
[15] He testified
further that although he is not an expert in firearms, he was able to
tell that the mechanism of one firearm that
appears in photo 51 and
52 was jammed. The serial numbers in all three firearms were filed
off. This according to him was done
to prevent identification of the
owner thereof.
[16] He also
identified photos 91 to 94 as those of the items that were found in
the motor vehicle. Photo 91 is a balaclava. Photo
92 is a jersey.
Photo 93 is an umbrella and photo 94 (also appearing in photo 93) is
an instrument that is used to break into motor
vehicles.
[17]
He concluded his
evidence
in
chief by Identifying the sketch plan that he drew, it is in page 100
of Exhibit A. It represents the crime scene.
[18] Under cross
examination;
[19] Moyane
confirmed that he took all the photographs and prepared the sketch
plan and that he attended the scene of crime after
some time.
According to information he received, the incident took place at
about 12 :00 and he only went there at about 14:45.
He was not able
to tell if the scene was tampered with. He found the firearms inside
the motor vehicle. He took them outside the
motor vehicle as it
appears in photos 49 and 50. He does not know who placed the bullet
next to photo 50. He does not know if the
firearms were in working
order.
[20] He identified
the forensic statement he prepared in page 1 of Exhibit B. He marked
the firearms exhibits A (photos 48-52) ,
B (photos 54-59) and C
(photos 55,56,60„61 ,62 and 63). The firearms were sealed in
individual bags and put in one bag .
The balaclava and jersey were
marked Exhibits D and E respectively.
[21] He collected
the cartridges and handed them over to Warrant Officer Tshabalala
because he could not get the firearms of the
police officers. The
agreement was that the Investigating Officer would collect the
firearms and take them to the ballistics laboratory.
[22] He was asked to
explain what was happening in photos 57,58 and 59 that depict a
firearm (B in the forensic report), a magazine
and bullets. He
explained that he took out the magazine and bullets as he wanted to
take photos. He acknowledged that there were
13 bullets that he took
out of the magazine, but was not able to tell whether the firearm
would be full or not if it had such number
of bullets because he is
not a firearm expert. He put the bullets in one plastic bag, as he
could not reload the magazine because
it would not be safe to do so.
[23] He was asked
why he did not mention the bullets in his forensic statement in page
1 of Exhibit B. His response was that he
did not think it was
necessary because the magazine was inside the bag with the firearms.
Photos 60 , 61, 62
and 63 is another firearm (C in the forensic report). It had four
bullets. The last firearm appears in photos
51 and 52. Its mechanism
had jammed. He dismantled the firearm but forgot to take pictures. He
also cannot recall how many bullets
were in this firearm. This
firearm also appears in photos 30 and 31 (at the feet of the driver)
and appears clearly in photos 47
and 48 that were taken after the
deceased was removed.
[24] He confirmed
that although he found bullets in the firearms, he did not find any
spent cartridges inside the motor vehicle
or outside that match the
firearms.
[25] Photos 107
through to 117 depicts spent cartridges that he found on the road and
photos 118-120 are cartridges he found outside
the road (tarmac).
Photo 152 depicts a house that was also shot at.
[26] He confirmed
that the windows of the Tazz motor vehicle were closed as it is
clearly depicted in photos 3 and 4 (two back windows),
photo 5
(driver’s window) and photo 6 (front passenger) as well as
photos 7 and 8.
[27] When he arrived
at the scene he only found the two deceased, but he could not dispute
a suggestion that the plaintiff, whom
he did not find, was seated in
the front passenger seat. Photo 4 shows the back seat passenger
(deceased). He confirmed that he
found the other deceased (back seat)
as he appears in photo 4; his body was outside the vehicle and his
left hand was inside.
[28] He did not find
the Task Force members or their vehicles when he arrived at the
scene. He could not recall if one Mr. Van der
Mersch was there
because he was interacting with Inspector Van Dyk who was in charge
of the scene. There were other police officers
though.
He did not inspect
any police vehicle.
[29] He cannot
dispute that all spent cartridges were found in and outside the
tarmac, and near the garage.
[30] He was referred
to paragraph 7 of the statement of Inspector Simon Sipho Tshabalala ,
page 13 of Exhibit D wherein the following
was stated:
"The
only cartridges I seized or found at the scene were that of R5-rifles
which are used by the police, i don’t know
who were involved
from the police since A5 Capt Viljoen and Insp Van Der Merscht kept
on saying
they
are from the Task
Force. Inspector Van Dyk from SOCKS and Detective Capt Booyse who was
a duty officer arrived and I handed the
scene to Inspector Van Dyk"
[31]
His attention was also drawn to a letter addressed to the Forensic
Science Laboratory that appears in page 16 of Exhibit D
wherein it is
stated that 10 x R5 spent cartridges were being sent to "
establish
of which firearm the cartridges were used”.
Moyane confirmed
that indeed he handed the cartridges that appear from photos 107 in
Exhibit A to Warrant Officer Tshabalala; however,
there is no
indication from the report of the forensic laboratory that the
cartridges were tested.
[32] He did not lift
fingerprints from the firearms, neither were residue tests done on
the plaintiff or any of the deceased. He
could not dispute that no
tests were done to determine whether the firearms were fired prior to
the ballistic testing.
[33] He confirmed
that the blue Almera appearing at the bottom of his sketch plan in
the area marked P is the same one that appears
in photo 150 of
exhibit A and that the Tazz vehicle ended at the top left of the
sketch plan where he has marked ABC.
[34] The distance
from where the Almera was parked when one goes through the frontcourt
of the garage to where the Tazz vehicle
ended up after crashing is
between 200-300 metres. He would not agree with any person who would
come to testify that the distance
is 5 kilometres; as such a person
would be lying.
[35] The whole
incident took place within the confines of the sketch plan (page 100
of Exhibit A) and the distance calculated from
the garage to where
the Tazz crashed is 200-300 metres.
[36] The points
marked X K, L.M, N, H, G, F, E and D represent the 10 cartridges he
found and collected. J is a live ammunition
and the rest are spent
cartridges.
[37] Photo 96
depicts the VW that belongs to a third party. Photo 108 was taken
from where the Tazz ended up back towards the garage.
It is not
possible to see Total garage when standing at the STOP sign because
the road bends.
[38] He was referred
to the ballistic report as well as the section 212(4) and 212(a)
statement of Peter Alvin Steyl in page 5 of
Exhibit C, in particular
paragraphs 3.4 and 3.5 where reference is made to fired cartridges
and cases.
Moyane was asked if
he knew where the cartridges came from. His response was that they
are not the ones that he sealed.
[39]
He was also referred to paragraph 7.1 where Steyl stated that"
The cartridge
cases mentioned in 3.4 and
3.5
were not fired in
the firearms mentioned in 3.1 and
3.3”.
He confirmed that
indeed they were not fired from the firearms he sealed.
[40] He inspected
the entire Tazz vehicle but did not take photos of the foot area of
the front passenger side because he concentrated
on taking photos of
places where he found exhibits. At first he could not see that there
was a second firearm in photo 54, but
only saw it when he moved the
seat forward as it appears in photo 55 and photo 56. In photo 30 the
deceased had been removed and
seat moved back . In photo 46 the
toilet paper had been moved forward and in photos 32 and 33 the
cellphone had been moved. The
balaclava and jersey were found in the
boot.
[41]
Under
re-examination,
he
confirmed his counsel’s suggestion that the fact that he did
not find 9mm cartridges does not mean they were not there.
It is
possible that they were there but removed before he arrived.
[42] If he had
lifted fingerprints, he could have obtained results with regard to
the identity of the person to whom they belonged,
provided such a
person had been arrested before. The police keep a database of
fingers of persons they arrest.
[43] The reason he
did not uplift fingerprints or investigate if there were liftable
prints is because the process would have damaged
the firearm
mechanism when sent for testing.
(Mr. Minnar rightly
exclaimed that this was strange and enquired if this was police
policy, to which the witness replied, yes.)
[44]
The
second witness
was
Warrant Officer SIBUSISO
JOSEPH
SIBISI,
who
testified that:
[45] He is the
second investigating officer in this case that is recorded under
Soshanguve SAS 682/03/2009.
[46]
He was asked to explain the enquiries made by
the
police
with regard to the ownership of vehicles as it appears in pages 31 to
38 of Exhibit C. He explained that the report in page
31 indicates
that the owner of motor vehicle with registration letters and numbers
JJT 043 GP is K. Smit. He did not obtain a statement
from him. Page
32 is a description of a VW Volkswagen Beetle with registration JJT
043 GP. Photo 70, page 38 of Exhibit A shows
the registration of the
Tazz vehicle as JJT 013 GP. It belongs to one Motha.
[47]
Tshabalala was not able to explain why the report of the enquiry into
the
Jazz
(page
34, Exhibit C) indicated the registration as TTJ 013 GP. It is also
indicated that the vehicle is a Land Rover Range Rover.
Defendant’s
counsel, assured me that the witness would explain the discrepancy in
due course . However, all that the witness
could say was that he does
not know where the first investigating officer obtained all this
information. This line of evidence
was then abandoned. He also could
not explain the link between the number plates affixed in the Tazz
and the enquiries made by
the police in pages 31 to 38 of Exhibit C.
He said the enquiries were made by his predecessor, Mr. Tshabalala
and he was unable
to explain.
[48] The next issue
Sibisi touched on was profiling of the plaintiff, but this line of
evidence was also abandoned too.
[49] He was asked if
there were any pending cases with regard to the two motor vehicles.
According to him there is none with regard
to the Tazz, but there was
a hijacking case at Pretoria North with regard to the Almera. The
case has since been withdrawn. He
does not know if the vehicle has
been returned to its owner.
[50]
Cross-examination
yielded
the following responses;
[51] The enquiry
with regard to the vehicle with registration numbers and letters JJT
043 GP was made on 23 July 2011 and all the
others during 2011. He
took over the investigation of this case during June 2011.
[52] There is no
statement from any member of the Task Force in the docket. This is
despite repeated requests from the Public Prosecutors
as well as
police superiors that statements should be obtained. The previous
investigating officer, Tshabalala also told him that
he could not
obtain the statements.
[53]
He was referred to various entries in the Investigating Diary
2
(Exhibit C) where it is clear that instructions were given to obtain
details of Task Force members, their statements and to conduct

certain investigations.
[54] Sibisi agreed
with Minnar’s suggestion that indeed no real efforts were made
to obtain the statements of the Task Force
members. He justified this
by saying that he is not the only one who failed, but the first
investigating officer told him that
his efforts were in vain too.
[55]
He was referred to page 15 of Exhibit D where there is a subpoena in
terms of section 205 of the Criminal Procedure Act dated
22 May 2009
and directed at Inspector CP Van Der Mescht to
"supply
the investigating officer with names of Task Force
members
involved in the shooting, the firearm, warning
statements
and the Commander in charge"
The application for
the subpoena appears to have been made by Tshabalala
[56] He refuted Mr.
Minaar’s suggestion that the fact that Tshabalala referred to
the shooting as an “accident”
and not “incident”
in paragraph 2 of his statement was of some significance.
[57]
He was also directed to paragraph 5, last line of Tshabalala's
affidavit in page 12 of Exhibit D where he stated, "
The
third one was seriously injured and was lying outside next to the
front passenger's door”.
[58] He was also
asked about what Tshabalala wrote in paragraph 6 thereof that he also
found a helmet and windbreaker in the boot.
This is contrary to what
the photographer, Moyane, testified. He did not find these items.
His answer was that
he did not know anything about it and that these items did not
feature in his investigations.
It was put to him
that the plaintiff will testify that indeed there was a helmet and a
windbreaker in the boot because the deceased
( owner and driver of
the Tazz) was a motorbike fanatic. He had no comment on this. He also
indicated that he would not know anything
about the plaintiff’s
version that he would testify that he used the vehicle the previous
day and there were no firearms.
[59] It was also put
to him that page 12 of Tshabalala’s statement in paragraph 6
(Exhibit D) contradicts the photos in that
according to the photos,
there was one firearm in front and two at the back seat of the
vehicle.
[60] Sibisis could
also not comment on the letter that was addressed to the Forensic
Laboratory (page 16) wherein it is stated that
10 spent cartridges
are being sent for examination. This is contrary to the evidence of
the photographer, Moyane, that he found
10 cartridges, one live and
the rest spent.
[61] He also had no
comment on the suggestion by Minaar that the scene was tampered with
and the three firearms were planted in
the vehicle.
Furthermore, he
could also not comment on the fact that there was no evidence that
the firearms found in the Tazz were tested or
connected to any spent
cartridges.
[62] He could also
not comment on whether there was any reason why the Task Team left
the scene of crime.
[63] He admitted
that he did not make any serious efforts to locate the members of the
Task Force . This is because the first investigating
officer,
Tshabalala, had already failed. Tshabalala had noted the outstanding
issues, and there was nothing more he could have
done. He denied that
the reason he did not make serious efforts to investigate the matter
had anything to do with the fact that
it involved his colleagues.
[64] He was referred
to an entry in the investigating diary dated 24/09/12 that reads as
follows:
"
(1) When are you
going io attend to this docket seriously
?
(2) Your
administration is very poor.
He agreed that the
entry was directed at him, but had no comment.
[65] He could not
explain where the J88 form was as it appears to have been obtained as
per entry dated 26/09/09 but is not In the
docket.
[66] When asked if
he ever talked to Van Der Mescht about the identity of the Task Force
members, Sibisi replied that he did not.
The reason he gave was that
his predecessor had spoken to him , as such he did not see a need to
do the same again.
When I asked if
there was no obligation on him to make follow-ups where his
predecessor had failed, his response was that he only
had to attend
to what has been indicated as outstanding matters, for instance; the
ballistic results report, which he did .
[67]
There was
no
re-examination.
[68]
The
third witness
was
Warrant Officer
DANIEL
CHRISTIAANS PHILLIPUS VAN DER MESCHT
who
testified about the events leading to the shooting of the vehicle in
which Mageza was an occupant, how the shooting occurred
as well as
how the incident ended.
[69] He testified
that on 30/03/2009, he was contacted by an unknown person who
informed him that they were about to commit a robbery
at Cashbuild in
Soshanguve. He then contacted numerous police reaction units known as
SOCKS, a unit that deals with cash-in transit
heists and gave them
the information. The unit went out but did not find the vehicles
mentioned on that day.
[70] On the same
day, he was again contacted by the same individual. He informed him
that they were going to target G4 Security
at Cashbuild the next day.
He gave him details of two motor vehicles, a Toyota Tazz and a Nissan
Almera. He then made contact with
the Special Task Force and members
of HITEC Project Unit. The planning started in the morning of 31
st
March and the Task Force was in charge of the operations. He also
contacted G4 Security who gave them a rough estimate of when
their
vehicle would go to Cashbuild in Soshanguve. This information matched
that of his informant.
[71] On the day in
question, the Task Force members were not able to pick up the two
motor vehicles in the vicinity of Cashbuild.
He picked them up at the
garage in Soshanguve at about 12:30. He relayed the information to
the Special Task Force and they informed
him that they would move in
the area and secure the vehicles and the people.
The Task Force
members moved in the garage. He also moved closer. He then saw three
suspects jump into the Toyota Tazz with registration
JJT 013 GP. He
confirmed that this is the vehicle in photos 1-6 and that photo 70 is
the registration numbers that were given to
him.
The vehicle sped
out, almost hitting one of the petrol pumps as well as members of the
Task Force, his own vehicle and his colleagues.
[72] A shoot-out
occurred. The Tazz drove to the southern direction. Some of the Task
Force members secured the suspects standing
close to the Almera
vehicle. He turned and proceeded to the direction of the South and
about 300-500 metres away he spotted the
Tazz. He went there and
found that the Task Force members had already secured the vehicle.
Two suspects (the driver and one at
the back) were lying motionless.
The other one was in the left front seat and wounded. They arranged
for an ambulance. Soon thereafter,
members of the SAPS from
Soshanguve arrived at the scene.
[73] He was referred
to the sketchplan in page 100 of Exhibit B and asked to identify
where the two motor vehicles were when he
first picked them up. They
were parked at the point marked P. He was parked across the road,
facing the garage. He refuted Mageza’s
statement in paragraph 7
that the Tazz had already moved out when they entered. According to
Van Der Mescht, the police had already
moved in when the Tazz drove
off.
[74] He agreed with
Mageza’s statement that someone shouted out “Stop”.
He maintained that they identified themselves
as police officers and
although their vehicles were not marked, they had sirens and blue
lights. The police were not dressed in
full uniform. Some members of
the Task Force were in uniform and some were in civilian clothes.
They had their bulletproof vests
on.
He also agreed with
Mageza’s statement that the driver of their vehicle (Tazz) did
not stop but accelerated. He qualified
it though by saying that it
was not accelerating in a normal way, but in an alarming speed.
[75] He testified
further that the weather was clear, although it rained after the
shooting. He was not certain what time Moyane
arrived at the scene
but it could be the time he indicated, 14:45. He was there when he
arrived. The scene was secured by putting
barrier tapes around and
only allowing access to police and medical personnel. The injured
person was removed before the arrival
of the photographer (Moyane).
The suspect at the back of the vehicle was removed before the
photographer arrived too. This was
to ensure that there were no
firearms that they (the suspects) could use.
[76] He only knew
about two firearms in the vehicle, but was informed about a third
one. He did not check whether the serial numbers
were filed off as he
did not want to contaminate the scene. He was not present when the
balaclava was found in the boot as he only
cordoned off and secured
the scene.
[77] He confirmed
that Moyane collected spent cartridges from R5 -rifles that were used
by the Task Force members. He could not
account as to whether there
were any spent cartridges from the firearms in the Tazz vehicle
because he was only present when the
scene was secured. The occupants
of the Almera were searched and detained without injuries.
[78] On the veracity
of the information he received on 30
th
March
and steps taken to verify it, he testified that he tested it with the
registration of the Tazz. It did not correspond with
the Tazz. He
confirmed the time with G4 Security and the information matched what
he was told. He then felt he had a duty to inform
the Task Force.
[79] He denied
receiving the subpoena in terms of section 205 of fhe Criminal
Procedure Act. He has been in contact with the investigating
officer,
Tshabalala. He provided him with names and contact details of the
Task Force members that were in charge of the operation.
[80] On whether the
shooting would have been prevented, he testified that yes, it would
have, only if the occupants of the Tazz
did what the ones in the
Almera did and not put any person’s life in danger by driving
recklessly. The area was full with
members of the public and the
driving endangered their lives. The driver did not consider other
road users as he just drove off
from the garage into the street and
did not stop at the stop sign.
[81
] Under cross-examination;
he
testified that:
[82] He did not see
the Tazz when the first shot was fired. The shouting “stop”
took place as he arrived at the garage
. He was in the vehicle. He
did not see what happened before this.
[83] He consulted
with the State Attorney twice, roughly a week before the trial
commenced.
[84] The whole
incident occurred in the 300-500metres radius within the garage and
any suggestion that it is 5 kilometres is wrong.
No one chased the
Tazz for that distance.
[85] He was referred
to page 38, photo 70 of Exhibit A and asked to confirm the
registration plate numbers of the Tazz. He confirmed
that it is JJT
013 GP. He confirmed that he checked the registration number a day
before.
[86]
Mr. Minaar asked him to look at his statement dated 04/02/09 in page
4 of Exhibit D wherein he stated that the registration
number of the
Tazz that was going to be used to commit the robbery was
JJT
043 GP.
Van
Der Mescht confirmed that indeed the registration numbers were
different and that the Tazz that was shot at is not the one that
he
was told would be involved in the commission of the robbery.
He also agreed that
it was wrong for him to confirm in his evidence in chief that the
registration numbers of the Tazz that was
shot matched the
registration numbers that he checked a day before the incident
because they are not the same.
[87] He conceded
that the registration numbers of the vehicle he saw at the garage
that was subsequently shot at is not the same
as the one that he was
told would be used to commit robbery. They are very similar according
to him as they differ with one letter
and one number.
He also conceded
that there is a possibility that there are hundreds of motor vehicles
with similar numbers not only in Soshanguve,
but the whole of South
Africa.
[88] He was asked if
the informant who called him was one of his usual informers to which
he replied that he was not and that he
would not say that he really
trusted him .
This is the reason
why on the first day he received a tipoff he called SOCKS , a unit
that specializes in cash-in transit heists.
He did not call them the
second day because they only confirm if information is correct or
not. They only do investigations after
cash in transit heists. He did
not go to Soshanguve on the first day as he was in Johannesburg. On
the second day he contacted
the Task Force and HITEC . He also went
there with his team. They were three, driving in a BMW vehicle. When
the first shot was
fired they were driving into the garage. He had a
pistol and his crew had R5 rifles but they did not fire any shots.
[89] He confirmed
that on the second day the G4 Security was supposed to visit
Cashbuild at Rietgat Plaza that is close to Soshanguve
Police Station
and that the Task Force was still at Rietgat Plaza when he spotted
the Tazz vehicles at the garage.
He also confirmed
that at this stage the G4 Security vehicle had already left the
Rietgat Plaza and no robbery had taken place.
[90] He confirmed
that there were five people around the two vehicles and that they
were not doing anything wrong at the stage he
spotted them.
[91] He was asked to
tell the court what he told the Task Force when he contacted them.
According to him, he told them the he had
just spotted the two motor
vehicles and the people were standing outside talking. He did not
tell them they were committing any
offence. By this time he was
standing across in another garage.
[92] The Task Force
members moved in the garage without talking to him. He could see the
Almera where it was parked and also points
J and K where spent
cartridges were found. It is possible that the first shot was fired
after the words “Stop” were
uttered.
He was not certain
whether the sirens and blue lights were switched on before or after
the first shot was fired as anything is possible.
He admitted that
many offences are committed by fake police officers nowadays.
[93] No crime was
committed in his presence prior to the shooting.
[94] He does know of
any reason why lifting fingerprint on a firearm would compromise
ballistic testing as he is not a firearm expert,
but believes it can
be done.
[95] He only knew of
two firearms that were found in the Tazz vehicle but he does not know
where. He arrived at the scene approximately
one minute after the
Tazz had stopped. He only approached the vehicle about three minutes
later after the scene was secured.
[96] He did not
mention the firearms in his statement because he was only deposing
about what was relevant to him at the time. He
cannot recall seeing a
cycle helmet, balaclava or clothes.
He also did not
mention in his statement that any bystander or any person was in
danger because it was not relevant for his purposes.
[97] He was standing
at the BP garage across the Total garage where the Almera and Tazz
were parked and he could see them. He cannot
recall if they were
parked close to each other or where the Tazz was pointed. He
remembers that the Tazz exited by the butchery.
He denied plaintiff’s
version that they exited on the left hand side of the petrol pumps.
[98] The distance
between Rietgat Mall and the garage is about 5 kilometres.
[99] He cannot
recall if he was there when the photos were taken as it happened five
years ago.
[100] He does not
believe plaintiff was arrested at the scene as he was injured.
[101] The reason he
called the Task Force is because he was working at Cash in transit
and Bank recovery reaction unit. The normal
procedure is that if one
has information about a motor vehicle, one is expected to go and
search it before the incident happens.
[102]
Re-examination
questions
were overruled as no basis was established. No foundation was laid
regarding the various photos that depicted motor vehicle
registration
disks and number plates. Mr Manala sought to introduce this evidence
through Van Der Mescht in reexamination. He did
not take the
photographs, neither did he make enquiries about the ownership of the
various motor vehicles. He also did not testify
about this nor was he
asked questions about it. The objections were rightly raised.
[103]
The
fourth and last
witness
for
the defendant was Constable
NADIA
SWANEPOEL.
She
testified that she was working at Crime Prevention Unit at the time
in question. She received information through the radio
that there
was shooting at Soshanguve involving SAPS members and two other
vehicles that were hijacked. On arrival, the shooting
was done. She
and her Unit members cordoned off the scene. She saw a grey Tazz
vehicle and people that had been shot. One was taken
to hospital and
was later detained by her.
[104] The reason she
detained him is because he was inside the hijacked vehicle, there
were unlicensed firearms, balaclava and house
breaking equipment. The
serial numbers of the firearms were filed off, that is why she says
they were unlicensed.
[105] She was shown
photos 54-63 in Exhibit in A and asked to comment if she saw the
firearms depicted therein on the day in question.
Constable Swanepoel
replied that she only saw one firearm on the day in question. She
also saw one magazine, but she did not check
it.
[106] She cannot
recall any other relevant thing that happened on that day. She just
recall that she ended up locking up the suspect.
[107]
Cross-examination
elicited
the following responses;
[108] She did not
see any firearm inside the vehicle, but saw one outside lying on the
grass. It was just one firearm that she saw.
She cannot recall if it
was disassembled.
[109] No offence
took place in her presence.
[110] She arrested
Mageza at the hospital on the same day and detained him thereafter.
No one pointed out Mageza to her. She used
her discretion based on
the available evidence as he was removed from the vehicle that she
believed was hijacked.
[111] She does know
that he was injured but does not know how the injuries came about.
She does not know if he was operated on.
She does not know where he
was seated in the vehicle but she found him close to it, sitting on
the grass. She did not find him
in possession of the firearm, but
because he was inside the vehicle where they were, she arrested him
for possession of unlicensed
firearms.
[112] She conceded
that it could be that Mageza fainted after he was taken out of the
vehicle and that he woke up at the hospital
but she does not agree
that he has never seen her in his life. She read him his rights
before effecting the arrest. If he does
not recall seeing her, he was
probably confused.
[113] She cannot
remember speaking to Van Dyk as there were many police officers. She
does not remember who was there.
[114]
There was no re-examination. This
concluded
the case for the defendant.
Plaintiff
[115]
Mageza
testified
that he borrowed the Tazz from his friend, Trevor, a day before the
incident . He took it back on the day in question
and the two of them
decided to go to Total garage to have it washed. Trevor drove the
car. On their way there, they met and gave
a lift to Noga, Trevor’s
friend who was also going there to meet some friends. They did not
find the car washers. Mageza
suggested that they go and buy some food
as he was hungry. As they were about to leave, Trevor phoned his
friends who were in Rustenburg
and they told him they were on their
way there. Noga’s friends were also not coming as they
promised. Trevor’s friends
arrived as they were about to leave.
They were driving a blue Nissan Almera. Mageza knew one of them as
Thabo. They were from court
in Rustenburg . They informed Mageza’s
party that their case had been withdrawn and the group rejoiced on
the news.
[116] Mageza
reminded Trevor that they had to leave to buy food. The three of them
got in their vehicle. Trevor was in the driver’s
seat, Mageza
in the front passenger seat and Noga sat at the back. He cannot
remember which side.
[117] Trevor started
the ignition and moved the vehicle forward. Before he could move a
short distance of about 5 metres, some vehicles
entered the garage
precinct and blocked their way. It was a BMW and a double cab Colt.
He cannot recall their colours. A white
male in trousers with side
pockets alighted from the Colt with a firearm and pointed it at them
shouting “Stop, Stop, Stop”.
He was not dressed in police
uniform. The vehicles had no sirens or blue lights. He did not
identify himself as a police officer.
[118] Trevor did not
stop. He accelerated and continued driving. About 15 to 20 metres
away, a shot rang out. Mageza felt some wetness
on his stomach. He
put a hand on it and saw blood. He was shot . (He showed the scar in
court. It is about 10 inches underneath
the left shoulder blade.) He
told Trevor to stop as he had been shot. Trevor just accelerated .
Mageza bent his head and hid near
the gear lever. No one shot from
the Tazz and they did not have firearms.
[119] He could not
see the direction to which the Tazz was moving. He could tell they
were being pursued because he could hear gunshots.
The Tazz then
crashed against some object and came to a standstill. After a while,
he heard a voice directing them to come out
with their hands raised.
He was unable to raise his left arm as it was painful. His door was
flung open and he was pulled out of
the vehicle by the same man who
alighted from the Colt at the garage . He identified the person as
the third witness for the defence;
Van der Mescht.
[120] The whole
incident from the garage to where the Tazz crashed lasted about two
minutes.
[121] He saw Trevor
bleeding from the mouth. After he (Mageza) was pulled out, he managed
to send a message to his attorney through
his cellphone that he had
on his right hand that was at that time under the vehicle. He told
his attorney that he had been arrested
at Soshanguve. Although he had
not yet been told he was being arrested, he just thought so because
there were many police officers
as he identified one that was known
to him.
[122]
The uniformed police were not at the scene yet when he was pulled out
of the vehicle. He was conscious, though his eyes were
closed. He
heard a woman shouting that "
this
person
is alive". An ambulance was then called. It arrived shortly
thereafter and they removed his trousers and sneakers. He
then fell
into a state of unconsciousness because the next thing he remembers
is when he woke up and found himself in hospital
. He felt pain on
his stomach and when he removed the hospital clothes to check what
was happening , he realized that he had been
operated on. He also
realized that his right hand had been handcuffed and he was under
police guard. He was hospitalized for four
days. On release he was
taken to Soshanguve Police Station holding cells. Later on, he
appeared in court and the matter was postponed
for further
investigations. He was then detained at New Lock ( Kgoshi Mampuri
Correctional Facility) in Pretoria. He was held in
an ordinary cell
with other inmates for three days. His wound became septic and he
requested to be transferred to the hospital
section. He was taken
there for treatment only and brought back to the cell.
[123] He cannot
recall how long he was detained. He went back to court after some
time and he was told that his case was being withdrawn.
He does not
know what happened to the persons in the Almera vehicle as he was the
only one attending court until the case was withdrawn.
[124] He confirmed
that the Tazz was parked at point P in the sketchplan before they
drove out. It was facing the petrol pumps and
they went out between
the pumps and the shops. They were still between the pumps and the
shops when the first shot was fired. They
were close to pump 2.
[125] When asked
about the items allegedly found in the Tazz, he indicated that he
only saw a balaclava. He did not see the tool
to break into vehicles.
The balaclava belonged to Trevor.
[126]
Under
cross
examination;
[127] Mageza
confirmed the suggestion by Mr. Manala that he was unlucky because he
found himself at the wrong place at the wrong
time and that he ended
up being shot by the police.
[128] He could not
dispute the sequence of events as described by Van der Merscht about
how he received the information from his
informer about certain
vehicles that were going to commit robbery and how he went out
looking for them . He had no knowledge of
it.
[129] He confirmed
that indeed their vehicle and the Almera were at the garage on the
day in question..
[130] He denied the
suggestion that he was an evasive witness and that he was not
credible.
[131] He confirmed
that he would not know what happened between the time that he was his
hiding under the gear lever and when the
Tazz crash-stopped.
[132] He also could
not comment on the evidence that the Tazz was being driven in a
manner that placed lives at risk as he was not
looking but hiding
under the gear lever.
[133] Although his
hand was not fully stretched out, he could still manage to send a
short message. His elbow was bent.
[134] He does not
remember which side Noga was sitting at the back seat.
[135] After being
pulled out he was on the left front door. He does not recall being
moved from this position before the ambulance
arrived.
[136] He confirmed
what he stated in his written statement that he thought that Trevor
panicked after being told to stop. He agreed
with the suggestion that
Trevor drove the vehicle in a panicked state.
[137] Although there
were people in and around the garage, there were not many. He could
not comment on the suggestion that Trevor
drove the vehicle in a
manner that placed peoples lives, including his, at risk or that a
reasonable man confronted by Task Force
members should have acted
differently from what Trevor did.
[138] He was not
able to comment on why certain things he testified about were not put
to the defendant's witnesses. For example,
Moyane was not told that
the firearms were planted in the Tazz as was suggested to the second
witness, Sibiya. Van der Mescht was
not told that he was the first
person to jump out of the Colt and that he is the person that took
Mageza out of the Tazz.
[139]
Under
re-examination,
he
confirmed that he lost blood.
[140] He first saw
the balaclava in court in the pictures and he identified it as
Trevor’s. Trevor was a biker , and bikers
generally wear
balaclavas underneath helmets or on their own for warmth.
[141] Mageza closed
his case.
THE LEGAL
FRAMEWORK AND PRINCIPLES
[142] The defendant
admitted having arrested Mageza without a warrant and having shot him
prior to such arrest. The reason given
in the plea is that ; (a) he
committed an offence in the presence of the police officers, (b) the
police officers acted in self-defence
as they were being shot at by
the occupants of the vehicle in which Mageza was travelling in, and
(c) the shooting was necessary.
[143]
Counsel for the plaintiff, Mr. Minaar urged me to "
keep
in mind that the Defendant did not rely in its plea on the protection
of section 49, nor prove it"
3
Whilst
this submission is technically correct it was referred to in the
heads of argument submitted by counsel for the defendant,
Mr. Manala
to justify the claim of assault
4
.
My view is that section 49 is a statutory justification that would
arise in any event as long as the police officers would be
able to
prove that they were authorised to arrest the plaintiff in terms of
the Act.
[144]
The question of statutory justification in terms of section 49 was
considered in the matter of
Janse
Van Rensbura and Another
2009
(2)
SACR 216
(C)
.
Moosa J
and
Le Grange J
concurring,
had this to say at paragraphs 21 and 22
“
[21]
Counsel
suggested
that we consider whether or not first defendant forfeited the
protection afforded him in terms of s 49 of the Act on his
own
vers/on.
/ do
not agree. It
is common cause that complainant sustained certain injuries as a
result of dog bites. The medical described the injuries
as 'multiple
dog bites on both hands
,
both legs
,
between eyes'.
There are two conflicting versions as to the circumstances under
which these injuries were sustained. Because of
the conflicting
versions and the quality of the evidence as a whole
,
we cannot
make a
finding on which
version
is
beyond
reasonable doubt true and which version is beyond reasonable doubt
false. In my view the State has not passed the threshold
of proof
beyond reasonable doubt in respect of fhe assault with intent to do
grievous bodily harm, to put first appellant to his
defence in terms
of s 49 of the Act. The evidential burden to show on a balance of
probabilities that those factors (which excuse
him in terms C of s 49
of the Act) were present, therefore does not arise.
[22]
I am supported in this conclusion by the dictum of Du Toit et al in
Commentary on the Criminal Procedure Act at page 5-25,
to the effect
that where
a
police
official is
charged with assault with intent to do grievous bodily harm, on the
ground that more force than necessary was used to
prevent a suspect
from escaping, it is the duty of the State to prove beyond reasonable
doubt that he committed the offence. Once
the State has discharged
such
onus,
the accused
will
have to
prove
on a balance of
probability that he complied with the requirements of s 49 of the Act
before his conduct may be statutorily justified.
(See also Hiemstra
Suid-Afrikaanse Strafproses (6 ed) at page 110.)
[145]
The dictum in paragraph 22 was applied by
Madondo
J
in
the matter of
Ngubane
v Chief Executive Director of Emergency Services, Ethekwini
Metropolitan Services and Another
5
“
[12]
Before a conduct may be statutorily justified, the accused must prove
on the balance of probabilities that he complied with
the following
requirements (S
v Janse Van Ransburg
and
another 2009(2)
SACR
216(C)
at 224 paragraph 22):
[13]
In Sv Covender
2001 (2) SACR 197
(SCA)
(2001 (4) SA 273
; A
2001 (11)
BCLR 1197)
at 204 - 205, the Supreme Court of Appeal introduced the
threat or danger posed by the fugitive to the arrestor, to others or
to
society
,
as an important
additional
factor whereby the proportionality of the force to be permitted in
arresting a fugitive had to be determined, in Ex parte:
Minister of
Safety and Security: In re S v Wallis
2002 (2) SACR 105
(CC) {2002
(4) SA 613
[2002] ZACC 6
; ;
2002 (7) BCLR 663j
B at 127 - 138 the seriousness of the
relevant offence
was
rejected as the
only criterion determining proportionality,
[14]
In the Govender case
,
supra at 205d - e,
in applying the constitutional standard of reasonableness
,
the court expanded
the test of proportionality
,
between the
seriousness of the offence and the force used
,
to include a
consideration of proportionality between the nature and degree of
force used, and the threat posed by the fugitive
to the safety of the
security of police officers
,
other individuals
and society
”
[146]
Section 40 (1)(a) of the Criminal Procedure Act (Act 51 of 1977),
(“the Act”) reads as follows
“
(
1)
A peace officer may without warrant arrest any person-
(a) who commits
or attempts to commit any offence in his presence:
[147]
Section 49 of the Act, (as it was when the events in question took
place ) reads as follows:
“
Use
of force in effecting arrest
(1) For the
purposes of this section-
(a)
"Arrestor
”
means
any person authorised under this Act to arrest or to assist in
arresting a
suspect;
and
(b)
"
Suspect
"
means any person
in respect of whom an arrestor has or had a reasonable suspicion that
such person is committing or has committed
an offence
.
[2]
if any arrestor attempts to arrest a suspect and the suspect resists
the attempt or flees, or resists the attempt and
flees,
when
it is clear
that an attempt to arrest him or her is being made, and the suspect
cannot be arrested without the use of force, the
arrestor may, in
order to effect the arrest use such force as may be reasonably
necessary and proportional in the
circumstances
to overcome the
resistance or to prevent the
suspect
from fleeing:
Provided that the arrestor is justified in terms of this Section in
using deadly force that is intended or is likely
to cause death or
grievous bodily harm to a
suspect
only if he or she
believes on reasonable grounds
—
(a)
that the force is immediately necessary for the purposes of
protecting the arrestor
,
any
person
lawfully assisting the arrestor or any other person from imminent or
future
death
or grievous bodily
harm;
(b) that there is
a substantial risk that the suspect will cause imminent or future
death or grievous bodily harm if the arrest
is delayed; or
(c) that the
offence for which the arrest is sought is in progress and is of a
forcible and serious nature and involves the use
of life threatening
violence or a strong likelihood that it will cause grievous bodily
harm”
FAILURE TO
CALL ESSENTIAL WITNESSES
[162] Counsel for
the plaintiff urged me to make a negative inference from defendant’s
failure to call the Task Force members
to testify. They are essential
witnesses who would have assisted the defendant to discharge the onus
that it bears to justify its
defences.
[163] I agree with
this submission.
In
the matter of
Supreme
Service Station (19691 fPvf) Ltd v Fox and
Goodridae
(Pvtl Ltd 44
Beadle
CJ stated the following:
'If
the defendant closes his case without giving evidence
,
in a proper case,
an inference may always be drawn against him from his failure to give
evidence contradicting that of the plaintiff
.
. .
the fact that
the defendant has not given evidence at all to refute what appears in
the plaintiff's evidence is often a cogent factor
to be taken into
account.'
[164] The other
challenge for the defendant is that it bears the onus of proof with
regard to the defences pleaded.
No one has testified
that the plaintiff or his co-occupants in the car committed an
offence in their presence. To prove the defence
of self-defence and
or necessity, there must be evidence from the person who shot at the
plaintiff to explain the kind of danger
they were faced with and how
they perceived it as a threat to them or the bystanders. Van Der
Mescht did not witness the circumstances
under which the first shot
(or all other shots) was fired.
The evidence of
Mageza, which stands uncontroverted is that he was hit on the stomach
by the first shot, and this happened as their
vehicle was about to
leave the garage premises..
[165] Van Der Mescht
and his team did not deem it fit to fire any shot, despite the fact
that they were armed according to his evidence.
Although he was
there, he could not explain if any shots were fired from by the
occupants of the Tazz vehicle.
There is no evidence
that any cartridges were found from the alleged firearms. There is no
evidence that any of the Task Force members
was hit by any bullet.
WHOSE VERSION IS
CORRECT?
[166] The versions
presented before me with regard to the circumstances surrounding the
shooting and subsequent arrest and detention
of the plaintiff are
totally irreconcilable and thus mutually destructive. Both counsel
are in agreement in this regard.
[167]
With regard to irreconcilable versions, the approach is stated in the
matter of
Stellenbosch
Farmers Winery Group A Another v Martel!
&
Others
6
.
The court summarized the technique generally employed to resolve
factual disputes in order to come to a conclusion. The court
is
required to make findings on (a) the credibility of the various
factual witnesses;(b) their reliability; and (c) the probabilities.
[168]
On the question of onus, the Supreme Court of Appeal, per Mhlanta JA
had this to say In the matter of the
City
of Johannesburg metropolitan Council v Patric Ngobeni
7
:
”
[50]
it is trite that a party who asserts has a duty to discharge the onus
of proof. In African Eagle Life Assurance Co Ltd v Cainer,
11
Coetzee J applied the principle set out in National Employers'
General Insurance Association v Gany
J
931 AD 787
as follows:
'Where
there are two stories mutually destructive
,
before the onus is
discharged the Court must be satisfied that the story of the litigant
upon whom the onus rests is true and the
other false. It is not
enough
to say that the
story told by Clarke is not satisfactory in every respect it must be
clear to the Court of first instance that the
version of the litigant
upon whom the onus rests is the true version
[51]
The approach to be adopted when dealing with the question of onus and
the probabilities was outlined by Eksteen JP in National
Employers'
General v Jagers
,
12
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 fhe
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
vers/on
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
fhe 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."'
[169]
In the matter before me, the defendant has admitted that Mageza was
arrested and in the process of the arrest was shot at,
and that he
was detained. This is all that the plaintiff was required to plead
and prove. The onus
8
is then on the defendant to justify the lawfulness of the arrest,
assault and deprivation of freedom.
ALLEGED FLIGHT OF
MAGEZA AND ATTEMPT TO ARREST HIM
[170)
I have already reproduced the defendant's plea , however, I deem it
necessary to refer to the last sentence of paragraph 3
which reads as
follows “
The
plaintiff was arrested for committing an offence before
members
of the defendant"
[171]
In the context of the plea, the defendant relies on section 40(1) (a)
of the Act which reads as follows:
“
(1)
A
peace officer
may
without warrant
arrest any person- (a) who commits or attempts to commit any offence
in his presence”
[172]
Section 40(l)(b) was not pleaded. As such I do not think it is even
necessary for me to consider the issue of reasonable suspicion
9
that
Swanepoel apparently had that Mageza committed a Schedule 1 offence.
[173]
Even if I were to characterize the whole incident (pursuing the
plaintiff’s vehicle until the arrest) to be justified
on the
basis of a suspicion that the plaintiff and his crew had committed a
schedule 1 offence, the enquiry would be futile because
that too was
not pleaded. In line 7 of paginated page 13 of the plea the defendant
stated that “
The members of the South
African Police Service waited on 31
st
of March 2009 for
the
identified vehicles and the identified members in
order to prevent the armed robbery of cash
in
transit"
(highlighted
for
emphasis
)
[174]
Section 40(1 )(b) reads as follows "A
peace
officer may without warrant arrest any personal
-
(a)...
(b) whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from
lawful custody;
[175]
The discretion to arrest only arises after the jurisdictional factors
have been established. The test whether a suspect committed
or
attempted to commit an offence in the presence of a peace officer is
a factual one. The question here will be whether on the
evidence
before me there is any evidence that Mageza committed or attempted to
commit
any offence
(highlighted
to indicate that there is no exclusion of the nature of offences) in
the presence of a peace officer.
[176] It does not
have to be Constable Swanepoel who harbors a suspicion It would be
enough if another police officer harbored a
suspicion based on
reasonable grounds and exercised a discretion to arrest the suspect,
but then directs another to effect it.
Swanepoel does not remember
talking to Van Dyk whom we were told was in charge of the scene. No
one gave her a report.
She gave
contradictory reasons why she arrested Mageza.
In her evidence in
chief she said that she arrested him because he was in a hijacked
vehicle and there were firearms, balaclava
and some car breaking
instruments in that vehicle.
Under
cross-examination she conceded that no offence was committed in her
presence. She also testified that she saw one firearm,
not in the
vehicle, but on the grass.
[177[] In my view,
Swanepoel did not apply her mind as to why she should arrest Mageza.
She did not attempt to enquire from the
police officers in the scene
at to what items were found in possession of Mageza or what he was
alleged to have done. This is the
reason she tried in her evidence to
incorporate every possible reason to justify the arrest. Ultimately
she said that she used
her discretion based on the prevailing
circumstances to arrest him. Possible offences according to her
testimony were being in
a hijacked car, possession of he firearms,
the car breaking instruments and balaclava.
[178] There must be
an indication from the facts that the plaintiff shared the same
intention with the driver to flee from the police
and he must know
that the police are trying to arrest him
Counsel
for the Plaintiff, Mr. Minaar referred me to the matter of
Msomi
v Minister of Law & Order and others 1992(2) SACR 557 (W).
The
facts were similar to this matter because the plaintiff was a
passenger too, though in the back seat.
Levy
J considered the issue of whether the plaintiff was trying to flee
and whether the police were trying to arrest him. The Honourable

judge referred to
S
v Barnard
1986 (31 SA 1
(A)
at
7
where
Van
Heerden JA
said
that:
“
...
dit vir die
persoon wat gearresteer staan te word duidelik moet wees dot die
gemagtigde poog om
horn
fe arresfeer
(Macu
se saak op 633
en
644). Hy moet dan
vlug met die opset om die poging te fnuik.'
And further:
'(d) Die
oorledene moes met daardie bewussyn gevlug het, dws gepoog het om
inhegtenisneming te ontduik deur ontvlugting.'
SELF DEFENCE
[179]
In
the matter of
Andries
v Minister of Safety and Security and
Others
10
Zondi
J held that to succeed in a plea of self-defence, the defendant must
plead and prove that:
"......
there
was
an unlawful attack
or threatened attack and that he had reasonable grounds for believing
that he was in physical danger and that
the means he employed in self
defence were commensurate with the danger and the dangerous means of
defence must not have been adopted
and the threatened injury couid
not have been avoided in some other reasonable way. (see Ntsomi v
Minister of Law and Order
1990
(1) SA 512
(C) at
526 G-H. The constitutionality of self-defence was also considered by
the Constitutional Court in the S v Makwanyane 1995(2)
SACR 1(CC). At
paragraph 138 fhe Court had this to say in this regard:
"[138]
Self-defence is recognised by all legal systems. Where a choice has
to be made between the lives of two or more people,
the life of the
innocent is given preference over the life of the aggressor. This is
consistent with s 33(1). To deny the innocent
person the right to act
in self-defence would deny to that individual his or
her
right to life. The
same
is true
where
lethal
force is
used against a hostage taker who threatens the life of the hostage.
It is permissible to kill the hostage taker to save
the life of the
innocent hostage. But only if the hostage is in real danger. The law
solves problems such as these through the
doctrine of
proportionality, balancing the rights of the aggressor against the
rights of the victim, and favouring the life or
lives of innocents
over the life or fives of the guilty. But there are strict limits to
the taking of life, even in the circumstances
that have been
described, and the law insists upon these limits being adhered to. In
any event, there are material respects in
which killing in
self-defence or necessity differs from the execution of a criminal by
the State. Self-defence takes place at the
time of the threat to the
victim's life, at fhe moment of the emergency which gave rise to the
necessity and, traditionally, under
circumstances in which
no
less severe
alternative is readily available to the potential victim. Killing by
fhe State fakes place long after the crime was
committed, at a time
when there is no emergency and under circumstances which permit fhe
careful consideration of alternative punishment
[53] The test whether
a person acted in self-defence is an objective one which means that
when the Court comes to decide whether
there was a necessity to act
in self defence it must place itself in the position of the person
claiming to have acted in self
defence and consider all the
surrounding factors operating at the time he acted (Nsomi
v
Ministers of Law
and Order supra at 528 G). The legal position on this issue was
succinctly set out in Kgaleng v Minister of Safety
and Security and
Another
20M 1
4)
SA 854
(W). At 865 D - E the Court had this to
say;
"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 summonsed
by Boberg The Law of Delict voll (1
9
84)
at 788:
'The
enquiry is factualand - 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."'
THE NECESSITY TO
SHOOT
[180]
The Supreme Court of Appeal
11
considered this defence in the matter of
Maimela
v Makhado Municipality
12
The defence
isjnvoked not only when the threat is directed at the perpetrator,
but also at an innocent person or third party.
In paragraph [17],
the court stated the following:
“
Professor
Jonathan Burchell3 suggests that for an act to be justified on the
ground of necessity the following requirements must
be satisfied:
“
(a)
[A] legal interest of the defendant must have been endangered
,
(b) by a threat
which had commenced or was imminent but which was (c) not caused by
the defendant's fault
,
and
,
in addition
,
it must have been
(d) necessary for the defendant to avert the danger
,
and (e) the means
used for this purpose must have been reasonable in the
circumstances."
FINDINGS ON
SUBMISSIONS
[181] I am grateful
to counsel for the heads of argument and the extensive research on
the relevant issues in this matter. Mr. Minaar’s
extensive
submissions on Sections 40 and 49 of the Act, the legal background
thereof as well as case law were helpful. His heads
of argument also
dealt, with the constitutional challenge to section 49
13
that precipitated the 2012 amendment as well as case law on the
application of the section.
I agree with Mr
Manala though that the applicable version of section 49 is as it was
on 31 March 2009 as the amendments do not have
retrospective
application.
I have already
referred to some of the cases that counsel referred me to, as such I
will not repeat the principles arising from
those cases.
Counsel for the
Defendant contends that:
[182] The plaintiff
knew that the persons that stopped their vehicle and subsequently
shot and arrested him were police. The submission
is based on the
fact that Mageza, even though in pain, managed to send a message to
his attorney to tell him that he was being
arrested.
In my view this
assumption does not accord with the evidence of the plaintiff. He
testified that he recognized one person that he
knew to be a police
officer and from they're assumed that the rest were and he would be
arrested even though he had not been told
so at the time.
[183] The plaintiff
was not a credible witness because he was rude to defendant’s
counsel and refused to accept objective
propositions that were put to
him such as whether there were many people at the petrol station and
whether the Tazz was being driven
in a manner that endangered the
lives of other road users. He also lied under oath and his evidence
was tailored and self-contradictory.
The criticism of
Mageza in this regard is not justified. A large chunk of the cross
examination was legal propositions on what counsel
for the defendant
said he would argue at the end of the case. The only setback for
Mageza was when he was asked about things that
were not put to the
witnesses by his counsel.
[184] On the issue
of arrest and detention, counsel for the defendant argued that this
was justifiable because the police found
firearms in the Tazz, a
balaclava and an instrument to break into vehicles.
This argument seems
to suggest that the means justify the end. Furthermore, it also loses
sight of the fact the plea and the jurisdictional
facts that need to
be present in terms of section 40(1)(a). Both Van Der Mescht and
Swanepoel testified that Mageza did not commit
any offence in their
presence.
[185]
It was also argued on behalf of the defendant that Swanepoel was
entitled to arrest the plaintiff because she suspected him
of having
committed a schedule 1 offence. The presence of unlicensed firearms
and ammunition in a vehicle creates a reasonable
suspicion of a
commission of an offence. A discretion to arrest was exercised
because the jurisdictional facts were there. Whether
or not the
discretion was exercised correctly or not does not arise in this
case. The court should not interfere with the exercise
of an
administrative discretion . Reference was made to the cases of
Minister of Safety and
Security
v Sekhoto and Another
[2011] 2 ALL SA 157
(SCA)
and
Minister of Law and
Order
[1986] ZASCA 24
;
[1986] 2 ALL SA 241
in
this regard. Swanepoel arrested plaintiff for possession of
unlicensed firearms and ammunition.
I have already dealt
with what has been pleaded in the preceding paragraphs, in particular
the fact that Section 40(1) (b) was not
pleaded. Even if it had been
pleaded , the question of a discretion only arises if the
jurisdictional factors had been satisfied.
[188] On Section 49
of the Act, counsel for the defendant submitted that the relevant
version is the one as it was on 31 March 2009
because even if it has
been amended, it has no retrospective application.
As I have indicated
above, I agree with Mr Manala in this regard. However, the defendant
bears the onus of proof.
[189]
On the objective assessment of the prevailing circumstances at the
garage on the day in question, the police officers were
confronted
with a situation of danger because there was a conspiracy to commit
robbery, the driver of the Tazz refused to stop
when ordered to do
so, and he drove off in a manner that endangered other lives.
Reference was made to the cases of
Chetty
v Minister of Poiice
1976 2 SA 450
(N) 452, Rv Mohamed
1938 AD 30
at
para 36; S v Mnguni
1966 3 SA 776
(T) 778; Ex Parte Dire Minister van
Justisie: In re S v Van Wyk
1967 1 SA 488
(A) 509
[190]
The shooting of the plaintiff was unavoidable. It happened as of
necessity. Reference was made to several cases such as
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck
2007 (2) SA 118
(SCA)
at
paragraph [13].
Finally, Mr. Manala
submitted the plaintiff’s claims should be dismissed with
costs.
Counsel for the
plaintiff submitted that:
[191] It is clear
from the evidence of Moyane that crime scene was handled shoddily and
disturbed by him. There is also a probability
that it was tampered
with before Moyane’s arrival. This is evident from the fact
that some items like the motor cycle helmet
were missing, objects
such as cellphones were moved around and firearms moved and one was
even dismantled by Moyane, magazines
were emptied and no residue
tests were done on the occupants of the vehicles.
[192] It is highly
probable that no shots were fired from the firearms that were
allegedly found in the Tazz because;
(a) Three windows of
the Tazz were completely closed ,
(b) There were no
spent cartridges from the firearms allegedly found in the Tazz. All
cartridges in the scene were fired from R5
rifles.
(c) The driver’s
window appears to be open but there is no indication that it was shot
out;
(d) There is no
evidence that any of the firearms were touched or used by any of the
occupants of the Tazz because no tests were
done.
[193] It is also
highly probable that the firearms were planted in the Tazz by members
of the Task Force to cover up their actions
as they had shot and
killed two persons and wounded one without reasonable cause.
I tend to agree with
these assertions because no one has testified about seeing these
firearms before they were photographed. Van
Der Mescht arrived at the
place where the Tazz crash-stopped within a minute and approached the
vehicle within three minutes thereof.
Although he testified about
helping to secure the scene, he does not place himself where he
actually sees what is in the Tazz.
According to him, he
only saw two firearms , but was told about a third. He did not see
the items such as the car breaking instrument
and clothing. When it
comes to what he could have actually seen, he hid behind the excuse
that he only secured the scene.
Swanepoel only saw
one firearm and a magazine on the grass. She arrived before the
photographer because she and her unit secured
the scene immediately
after the incident.
[194] Lastly, if the
defence that the police were acting in self-defence is to be
believed, why are there no spent cartridges from
the firearms in the
Tazz?
[195] With reference
to the evidence of Sibisis, counsel for the plaintiff submitted that
the fact that the investigation was deliberately
messed up to protect
the Task Force members who had acted in an unreasonable manner.
[196] Van Der
Mescht’s evidence was contradictory and his testimony was not
recorded in his written statement. He did not
hear members of the
Task Force identify themselves to the driver of the Tazz, he was not
aware if any shots were fired from the
Tazz. He was the first to
arrive where the Tazz was, but he did not deem it fit to fire at the
vehicle.
[197] Furthermore,
it turned out that the details of the Tazz that Mageza was travelling
in differ from those that were given to
him by his informant. There
was no justification to shoot, arrest or detain the plaintiff on the
basis of evidence presented by
Van Der Mescht.
[198] The evidence
presented by Constable Swanepoel does not satisfy the requirements of
section 40 of the Act. She did not give
a satisfactory explanation
why she arrested the plaintiff. She did not arrest him for the
offence she heard on the radio (hijacking
of a motor vehicle.
Plaintiff did not commit an offence in the presence of Swanepoel and
there is no evidence that she could have
suspected him of having
committed a Schedule 1 offence.
[199]
On section 49, counsel for the plaintiff submitted that there was no
evidence that there were reasonable grounds to believe
that the force
was immediately necessary for the purpose of protecting the arrester
and any other person from imminent
or
future
death or grievous bodily harm, that the force could not be delayed or
that the offence was in progress and was of a serious
nature
involving life threatening violence or that it was likely to cause
grievous bodily harm.
[200] Defendant must
plead and allege an unlawful attack, threatened or real, reasonable
grounds for believing that he was in danger
and that the force used
was reasonable and commensurate with the plaintiff’s alleged
aggression.
CONCLUSION :
CREDIBILITY OF THE FACTS AND WITNESSES
[201] In my view,
there was no reason for Van Der Mescht to set in motion the events
that led to the confrontation between the Members
of the Task Force
and the driver of the Tazz vehicle because the G4 Security vehicle
had come and gone where it was supposed to
have been robbed, about 5
kilometres away from where the Tazz and Almera vehicles were, in a
crowded garage parking.
The plaintiff and
others were standing near these vehicles, talking. They were not
doing anything untoward.
[202] There is no
evidence to suggest that the Members of the Task Force tried less
lethal means to stop the Tazz vehicle from fleeing,
such as shooting
the tyres.
In fact, the first
shot fired went straight into the abdomen of the plaintiff. This was
soon after the two vehicles met. The vehicle
of the Task Force
members blocked the way of the Tazz.
[203] There is no
evidence to suggest that a single shot was fired from the Tazz
vehicle. All cartridges found were fired from the
R5 rifles that
belonged to the Task Force members.
In fact, the Task
Force members are the ones who put the lives of innocent persons at
risk because there is evidence that a third
party vehicle and a
nearby house were shot at.
[204] In less than
two minutes, and within a distance of about 200-300 metres, the
bodies of two of the occupants of the Tazz vehicle
lay dead, riddled
with horrible, multiple bullet wounds . The photographs are testimony
to a brutal attack . The fact that to date
the identity of the Task
Force members has not been revealed leads to an inescapable
conclusion that they had no reason to act
in the manner they did. The
deliberate shoddy investigation of the matters adds to this
conclusion.
[205] On these
facts, the pleas filed by the defendant cannot succeed.
[206] The only
witness that could have given life to the pleas was Van Der Mescht.
He failed. Swanepoel arrived after the whole
action. Moyane arrived
at the scene almost three hours later. Sibisi and his predecessor
failed to do the basic investigations
or even obtain names of the
police officers who the defendant alleges acted in self-defence and
were compelled to shoot after being
shot at. Van Der Mescht knows who
they are, but did not reveal their identity even though he was served
with a Section 205 subpoena
that he alleges he did not receive. Why
did he not mention their identities in his written statement?
[207] Mageza was, in
my view a truthful witness. He did not hide the fact that the driver
of the vehicle he was in refused to stop
even when he told him to do
so. His explanation for asking the driver to stop was because he
(Mageza) had been shot. The whole
incident lasted about two minutes
and in a stretch of about 200-300 metres. There is not much to tell.
He did not see where the
vehicle was heading because he hid himself
under the gear lever. He did not exaggerate his injuries. He was shot
once. It is clear
from the photographs that his co-occupants were
shot several times. His injury is consistent with his evidence that
he was shot
once. The only reason he was not shot again is most
likely that he hid under the gear lever. He did not testify about
seeing his
co-occupants being shot. He did not see anything. The next
time he saw Trevor was after the Tazz crashed. He (Trevor) was
bleeding
from the mouth.
[208] Under the
circumstances, I do not see any reason why the conduct of members of
the defendant should not be declared unlawful
and that it be held
liable to compensate Mageza for the damages arising from his arrest,
assault and detention.
I make the following
order:
(a) The claims of
the plaintiff succeed with costs; and
(b) The defendant is
liable to compensate the plaintiff with 100% of his proven or agreed
damages.
TAN MAKHUBELE
Acting Judge of the
High Court
Date heard:26-28
January 2015
Heads of argument
submitted on: 23 & 24 February 2015 respectively
Judgment delivered
on: 24 April 2015
APPEARANCES:
Plaintiff:
Advocate JR Minaar
Instructed by:
Leistner Attorneys
PRETORIA
Defendant:
Advocate ME Manala
Instructed
by: State Attorney
PRETORIA
1
cartridges1
pretrial minute of 14 December 2010, paragraph 2.1.2 and 2.1.3
2
page
43, paragraph 7 where Captain Viljoen was asked to obtain details of
Task Force members who shot at the Tazz.
Page
47, line 11 is a request to get information as to whether any
cartridges fired from the seized firearms were found, and if
so, to
send them for ballistic testing.
Page
50, paragraph 3The accused (Plaintiff) was ultimately granted bail
on 14 April
2014. Page 51
, there is an entry dated 24/0609 to the
effect that the Tazz car has no registration no . and that there was
nothing to link
the accused and how he was arrested.
Page
52, the entry dated 12/08/09 reads " As
said
earlier- I have nothing against this accused-but now I am thinking
of the cameras at the garage where fhe incident took place.
Please
interview the owner of the garage to help in this regard"
Page
53, entry dated 27/08/09 that reads in part : “
Witness
for
murder
docket
untraceable”
Page
66 where there is amongst others an entry of 13/03/13 that reads in
part that; "
Officer's
instructions were not complied with "
3
Paragraph
17 of plaintiff's heads of argument
4
paragraph51-59
5
(14847/20051120111
ZAKZDHC 61:
2013 (1) SACR 49
(KZD) (1 December 2011)
6
2003(1) SCA 11at
7
supra
8
See:
Minister of Order v Hurley 1986(3) SA 568 (A) AT 589 E-F
9
paragraphs
44 and 45 of defendant's heads of argument.
10
10(6129/06}
[2011] ZAWCHC 389
(10 October 2011)
11
Mpati
P
12
12(269/10)
[2011] ZASCA 69
(20 May 2011)
13
Ex parte Minister of Safety & Security & Others: In re:
Staat v Walters
2002 (2) SACR 105
(CC)