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[2015] ZAFSHC 184
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Bergman v Minister Van Veiligheid En Sekuriteit (5037/2012) [2015] ZAFSHC 184 (17 September 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case number: 5037/2012
DATE: 17 SEPTEMBER 2015
In the matter between:
LIZELLE JOLENE
BERGMAN
............................................................................................
Applicant
And
MINISTER VAN VEILIGHEID EN
SEKURITEIT
..........................................................
Respondent
HEARD ON: 6 AUGUST 2015
JUDGMENT BY: RAMPAI. J
DELIVERED ON: 17 SEPTEMBER 2015
[1] These were action proceedings. The
plaintiff sued the defendant for payment of R500 000 delictual
damages. The action was
defended. The hearing endured for a number
of days, the first of which was on 22 April 2014 and the last on 6
August 2015. On
that day I heard closing argument and reserved
judgment.
[2] By agreement between the parties I
made an order whereby the merits and the quantum were separated. I
made the order on 22
April 2014. The evidence as regards the merits
was then presented for adjudication.
[3] The version of the plaintiff was
narrated by five witnesses, namely:
• Ms Lizelle Joleen Bergman, the
plaintiff;
• Ms Bonja Charlotte Marina
Gysman, the former wife of the property owner;
• Mr Mohau “Shorty”
Ratilo, a private security guard;
• Mr Antony Gysman, the property
owner and
• Mr Quinton Griffen Matthews, the
property owner’s friend.
[4] There were eight witnesses who
testified for the defendant, namely:
• Captain Krisjan Johannes van
Wyk;
• Constable Moipone Elizabeth
Moea;
• Captain Nomsa Gladys Jimlonywe;
• Constable Lesego Aaron Pudumo;
• Warrant Officer Nkopane Chalres
Masia;
• Constable Solomon Mjoni Ntuli;
• Constable Sipho Gift du Toit and
• Mr Eric Deysel.
[5] The following facts were common
cause or facts which, though denied, were not seriously disputed:
Ms Bergman and her friends visited Mr
Gysman on Saturday 25 February 2012. By midday they were already on
the plot. Mr Gysman
left the plot later that evening. He went to
watch a rugby match on tv at a friend’s house. Not long after
his departure
Mr Ratilo saw a group of intruders jumping the house
security wall onto the courtyard. He rushed to the house, and warned
the
three ladies about the imminent danger. On his way back two
members of the group aggressively confronted him outside the kitchen
door. X, the gunman, struck him with the butt of the gun and
threatened to kill him.
[6] Mr Ratilo broke loose and ran to an
adjacent plot number 1…. where he sought help. He reported to
Sylvia, a neighbour’s
domestic worker, that Mr Gysman’s
house was under attack. The incident was then reported to Sylvia’s
employer Gayle.
The latter sent an sms to Ms Gysmans daughter,
Antonia. Through those three intermediaries Mr Ratilo’s report
was brought
to the attention of Ms Gysman at plot 1…. S…..
B…….. Gayle’s plot number 1…. was
situated
between plot 1…. Ms Gysman’s residence and plot
1….. Mr Gysman’s residence. By then Mr Ratilo had gone
into hiding.
[7] Ms Gysman called Mr Anthony Gysman,
Mr Piet Gysman, the former’s brother, Mr Egan Gysman, her son
and Bloemspruit Police
to inform them about the housebreaking on the
plot known as 1…. S….. B…… and stressed
that the plot
was not in Statsiestraat – (see exi c). She
could not remember the name of the police officer to whom she
reported the matter.
She had no independent recollection of the
exact time she called the police. She explained to the police woman
that the housebreakers
had already assaulted the plot security guard
and that there were fears that they would also assault the visitors
in the house.
Her request was that the police must immediately go to
the scene to prevent further harm. She told the police woman that
the
housebreakers were still on the plot. Her successful call to
Bloemspruit Police was at 20:02 the number she used was telephone
051
503 4000.
[8] Mr Anthony Gysman was at Grasland
where he was watching rugby with Mr Matthews and others when he
received a call from Ms Gysman
about the burglary. He called the
police number 10111 at 19:56. He also received a call from his
brother Mr Freddie Gysman who
also lived on the same plot. The
brother’s cellphone number was 082 3……... The
brother enquired about the
burglary seeing that he was not on the
plot at the time. The rugby match under the auspices of the Super 15
Series would have
started at 19:20 and ended at 20:45. He could not
say the exact time he left Grasland. He estimated that he probably
left at
any time between 20:30 and 20:45. The distance between his
plot and that of Mr Matthews was approximately 4km. He drove home to
ascertain what was going on.
[9] On his arrival he beamed his house
and saw two strangers in the passage. He hooted and Ms Bergman and
her two friends escaped
from the house, through the bedroom window,
jumped over the wall and jumped into his car. Ms Bergman was
completely naked and
she was bleeding. She told him the
housebreakers had raped them. He immediately rushed them to
Bloemspruit Police Station. He
complained to W/O Masia about the
police failure to respond to Ms Gysmans earlier telephone report. He
angrily demanded that the
police rush to his plot because the
suspects were still on the scene when he left. The police
accompanied him to the plot. When
the police came to the plot the
intruders or housebreakers or rapists were gone.
[10] Mr Matthews also drove from his
plot at Grasland to Mr Gysman’s plot at Bloemspruit later that
same evening after he
had received a call from Mr Gysman. Before he
drove off he called his nephew, Mr Hendrik van Wyk, a police officer
stationed at
Navalsig Police Station and asked him to investigate Mr
Gysman’s complaint that the intruders were still in the house;
that
the police had still not arrived and that he was driving out to
fetch them. He arrived there at more or less the same time with
the
police. He could not recall the exact time he and the police arrived
at the scene. He took the 3 young ladies back to Bloemspruit
Police
Station so that they could make their statements. He noticed that
they were injured.
[11] Ms LJ Bergman resided at 20
Franklin Joshua street, Heidedal in Bloemfontein. Mr Anthony Gysman
resided at plot 171 Stasieweg
Bloemspruit also in Bloemfontein. The
two were relatives. On Saturday 25 February 2012 Ms Bergman and her
friends, Ms Deidre
van der Byl and Ms Zaneva Confidence van Schalkwyk
paid Mr Gysman a visit. At about 19:30 Mr Gysman left the plot. The
three
young ladies remained behind with Mr Ratilo. They were
watching a movie on DStv when Mr Ratilo rushed in and warned them
that
there were intruders outside on the plot. They locked the doors
save for the door of the lounge because they could not find its
key.
Ms Bergman saw two armed men outside the house in the hallway trying
to break the window. She and her friends ran away from
the lounge to
hide in the main bedroom.
[12] The intruders broke into the house
through the main door of the lounge, proceeded to the main bedroom,
forced their way into
the main bedroom where the gunmen demanded
money from them. The intruders then ransacked the house but found no
money. During
the course of the search for money, she and her
friends were now and then assaulted. Ultimately the gunman raped
her. His companion
raped Ms D van der Byl.
[13] After the two rape incidents the
three ladies were taken to one of the bedrooms. At that moment Mr
Gysman arrived. The housebreakers
ran out of the bedroom. The three
ladies ran out of the house to Mr Gysman who took them to Bloemspruit
Police. Soon after their
arrival at the police station they returned
to the scene accompanied by the police. During the course of the
evening they were
taken back to the police station by Mr Matthews for
interviews by the police.
[14] Captain Jimlongwe interviewed Ms
LJ Bergman. She took a witness statement. The statement was signed
and attested on Saturday
25 February 2012 at 22:30. There was no
mention in the statement of the fact that the plaintiff in other
words the victim was
raped (vide 7 exi b). There was no indication
ex facie the statement, of the time the interview commence.
[15] Constable Moea interviewed Ms D
van der Byl. She took her witness statement. The statement was
signed and attested on Saturday
25 February 2012 at 21:30. The
statement contained an averment that the victim was raped as was Ms
Bergman. Again the time at
which the interview commenced was not
indicated.
[16] Student Constable Polumo
interviewed Ms ZC van Schalkwyk. He took down her witness statement.
She stated that she was assaulted
and undressed but that an imminent
attempt to rape her was foiled by the arrival of Mr Gysman seconds
before she was sexually penetrated
like Ms Bergman and Ms Van der
Byl. Her statement was signed and attested at 22:06 on Saturday 25
February 2012. There was no
implication of the time the interview
started.
[17] Among the police on the scene were
W/O Masia, Constable Ntuli and Constable Du Toit. There were no less
than ten police officers
all in all and no less than three police
vehicles. Two of the vehicles were identified as BSC220B and
BNV360B. The South African
Police Service is a client of a company
called Digicore Fleet Management (Pty) Ltd. Each of the aforesaid
two police vehicles
was fitted with a tracking device called c-track.
The device was designed to record movements, time and location of a
vehicle
at any given moment with the aid of a GPS (Global Positioning
System) information. Mr Eric Deysel, a representative of the
aforesaid
company presented a movement report in respect of each of
the two vehicles. As regard the movement report in respect of police
vehicle BSC220B, see page 33 exi b. As regard the movement report
in respect of police vehicle BNV360B, see exi e.
[18] Captain CJ Van Wyk was responsible
for the upkeep of the crime administration system at Park Road Police
Station. The police
radio communication system was functional on
Saturday 25 February 2012. The incident was reported to the Park
Road Flying Squad
at 10111 in the evening by Mr Anthony Gysman. The
flying squad transmitted the incident report to Bloemspruit Police
that same
evening. The incident was then broadcast on the police
radio channel. All the police stations and all the police vehicles
equipped
with the radio voice channels would have received the
incident report. According to the report the suspects were still on
the
scene at the time the flying squad unit received the incident
report. The police drove to the scene. This concludes my summary
of
the common cause or undisputed facts.
[19] The issue in the matter was
twofold. The first leg of the issue concerned the time the police
received the incident report.
The second leg thereof concerned the
time the police arrived on the scene.
[20] On behalf of the plaintiff Mr
Maree argued that the Bloemspruit Police received the incident report
from Ms Gysman while the
suspects were still on the scene but that
they failed to rush to the scene immediately. He, therefore,
submitted that had the
police promptly reacted to the telephonic
report the suspect could possibly have been arrested and rape of the
plaintiff could
possibly have been prevented.
[21] Ms Van Rhyn, counsel for the
defendant differed. She argued that the police drove out to the
scene without any undue delay
after they had received the incident
report by Mr Gysman in person and not the alleged earlier incident
report by Ms Gysman over
the telephone. Accordingly she submitted
that, notwithstanding the quick response of the police, the suspects
had already fled
from the scene by the time the police arrived and
that the police could not have done anything to prevent the raping of
the victim.
[22] The plaintiff’s claim is
founded in delict. She was a victim of sexual violence. She was
raped by an unidentified criminal.
The sexual assault violated her
dignity, her freedom and security of her person. Her rape by the
unidentified man was the direct
cause of the delictual damages she
suffered. However, the plaintiff asserts that the police were the
indirect cause of the delictual
damages she suffered. She contended
that the Minister of Safety and Security was responsible for her
suffering and therefore,
delictually liable on account of the alleged
wrongful omissions of the Bloemspruit Police who, at all times
material to the incident
complained of, were acting within the course
and scope of their employment as servants of the state as represented
by the responsible
minister. She averred that the police officers
concerned were executing their official duties at the time unknown
criminals sexually
and violently impaired her enjoyment of her
fundamental rights and freedoms.
[23] At the trial before me, the
plaintiff had to establish the following in order to succeed:
23.1 that the police, in particular
those stationed at Bloemspruit Police Station, owed her a legal duty
to protect her;
23.2 that captain Jimlongwe and W/O
Mosia acted in breach of such duty and did so negligently;
23.3 that there was a casual connection
between such negligent breach of legal duty and the delictual damages
she ultimately suffered.
[24] In her particulars of claim the
plaintiff pleaded:
“8.2.3 Dat hul nie binne ‘n
redelike tydperk hul statutêre plig uitgeoefen het om misdaad
te voorkom nie.”
There was no specific allegation that
the police owed her a legal duty to ensure that she enjoyed her
fundamental rights such as
her right to life, the right to respect
for and protection of her dignity, the right to freedom and security,
the right to personal
privacy as well as the right to freedom of
movement.
[25] The core powers and functions of
the South African Police are:
25.1 the prevention of crime;
25.2 the investigation of any offence
or alleged offence;
25.3 the maintenance of law and order;
and
25.4 the preservation of the internal
security of the RSA.
Section 205 of the constitution
provides, in addition to the spherical structure of the national
police service (vide ss(1)) and
the establishment of its powers and
functions through national legislation (vide ss(2)), as follows as
regards its objects:
“The objects of the police
service are to prevent, combat and investigate crime, to maintain
public order, to protect and
secure the inhabitants of the Republic
and their property, and to uphold and enforce the law.” (vide
ss(3))
[26] The legal duty imposed on the
state by the constitution may be negative or positive in character.
The negative component of
such duty, on the one hand can be
encountered where the state and its organs are obliged not to perform
any act that infringes
fundamental rights. The positive component,
on the other hand, can be encountered where the state and its organs
are obliged to
provide appropriate protection to everyone through
laws and structures designed to afford such protection.
[27] The law imposes a particular duty
on the state to protect women against all forms of violent crime in
general and sexual abuse
in particular. The police are the primary
agencies of the state responsible for the protection of the public in
general and women
in particular against violent crimes. The
prevention of crime, just like the investigation of any alleged
offence, is a constitutional
imperative of the state. Once an
on-going crime is reported to the police a legal duty to act arises,
a duty owed by members of
the police to members of the public
concerned.
[28] The existence of such a duty was
never disputed or questioned in the instant matter. In view of this
tacit admission by the
defendant, I am satisfied that the plaintiff
established on a balance of probabilities that the police in general
and the Bloemspruit
Police in particular - owed her a legal duty to
protect her against all forms of violent crimes in general and sexual
abuse in
particular. The first leg of the test is, therefore,
determined in favour of the plaintiff.
[29] The second leg of the enquiry
requires me to determine whether the aforesaid Bloemspruit Police
acted in breach of such legal
duty and did so negligently.
[30] The police are the primary agency
of the state responsible for the protection of the public in general
and women in particular
against violent crimes. Sometimes the police
discharge the duty to the satisfaction of victims of crime. At times
they fail to
do so. It does not follow, however, that each and every
breach of that legal duty entitles a crime victim to delictual
damages.
Whether or not a victim, in any given case, is entitled to
damages in delict depends on the particular facts of each case.
[31] The appropriate common law test
for determining the wrongfulness of omissions in delictual actions
for damages in our law as
it applied prior to the dawn of democracy
was refashioned in the decision of Carmichele v Minister of Safety
and Security &
Another
[2001] ZACC 22
;
2001 (10) BCLR 995
(CC).
[32] I now proceed to examine the facts
in order to determine whether the police acted in breach of the legal
duty and did so negligently.
W/O Masia and Constable Ntuli patrolled
the neighbourhood of Bloemspruit for two hours that evening.
Constable Ntuli corroborated
the evidence of W/O Masia. It would
appear that Bloemspruit was a high crime spot at the time. The
defendant was well aware of
the situation. According to the evidence
of Constable Du Toit, a special police unit was dispatched from
Welkom to Bloemspruit.
The unit was deployed for the purpose of
reinforcing the strategy of crime prevention in that neighbourhood.
[33] Constable Du Toit was ordinarily
attached to a police unit based in Welkom. However, on Saturday 25
February 2012 he was in
Bloemfontein. His unit was deployed at
Bloemspruit. He reported for duty at 19:00. His unit was
specifically deployed to carry
on a crime prevention operation in
that neighbourhood. They were using relatively new police vehicles
which were not yet equipped
with tracking devices. The vehicles did
not even have the customary blue lights at that stage. In order to
determine whether
the police committed any breach of legal duty. The
first question requires me to ascertain the time the police received
an incident
report.
[34] Ms Bergman testified about the
time factor as follows:
At 18:30 Mr Bergman drove away from the
plot.
At 19:45 she saw the perpetrators in
the hallway.
At ±21:00 the perpetrators fled
from the scene more or less at the same time she and her friends
escaped from the house.
Mr Gysman rushed them to Bloemspruit Police
Station. They travelled for approximately 5 minutes at least or 8
minutes at most
to get to the police station. Based on her evidence
and deductions drawn from it, the police must have received the
verbal incident
report from Mr Gysman at or about 21:08.
[35] Ms Gysman testified about the time
factor as follows with the aid of her cellular data ex MTN:
• At 19:50:05 she (user of cell
083 560 7197) called Mr Gysman the (user of cell 082 444 9755) but he
didn’t answer.
• At 19:55:52 she called him,
reached him and told him about the burglary.
• At 20:00:21 she called her ex
brother in law Mr Piet Gysman the (user of 082 386 5809) and informed
him about the burglary
incident
• At 20:01:51 she called her son
Mr Egan Gysman (user of 082………) and informed him
about the burglary incident.
• At 20:02:49 she called
Bloemspruit Police at +2751 503 4000 and reported the incident. Vide
12 exi b.
[36] Mr Ratilo could not testify about
the time factor save that the incident took place at dusk. However,
if the testimony of
Ms Bergman is correct as regards the time she
first saw the perpetrators, one can take an informed guess that Mr
Ratilo must have
seen the perpetrators shortly before 19:45. Ms
Gysman received Mr Ratilo’s report via Sylvia, Gayle and
Antonia. There
was no evidence as to the time Gayle actually sent
the sms to Antonia. Similarly there was no evidence as to the time
Antonia
received such cellular text. Notwithstanding those two
gaps, we know that by 19:50:05 Ms Gysman was already busy trying to
call
Mr Anthony Gysman in order to inform about the burglary and the
assault. From all this it can reasonably be inferred that Mr Ratilo
indirectly reported the incident to Ms Gysman shortly before 19:50.
But Mr Ratilo had no personal knowledge as to the time the
incident
was reported to the police.
[37] Mr Gysman testified about the time
factor with the aid of cellular data ex Vodacom (vide 7 exi b).
• At about 19:20 the rugby match
would usually have started.
• At 19:30 he left the plot.
• At 19:55:50 he received a call
from Ms Gysman and heard about the burglary.
• At 19:56:59 he called the Police
Flying Squad at 10111 and reported the burglary and that the suspects
were still on the
scene.
• At 20:45 the rugby match would
usually have ended.
At 20:13:32 he received another call
from Ms Gysman that the police where still not yet on the scene.
Sometime after the rugby
match had ended he decided whether to go and
investigate what was going on. He then drove home at ±20:45.
[38] Mr Matthews testified about the
time factor. In the evening of the day in question he had a few
friends on his plot at Grasland.
Among them was Mr Anthony Gysman.
They spent the evening watching a rugby match. He could not recall
whether Mr Gysman was already
there when the match started or not.
He could not, in fact recall at what time the kick-off was or at what
time the referee blew
the final whistle. His recollection of the
match as a whole was very poor.
[39] Mr Matthews corroborate the
evidence of Mr Gysman that he did not immediately leave after the
first call he received from Ms
Gysman; that he continued to watch the
match and that he left sometime after he had received a further call
from her. By then
the match had already ended. The cellular data
supplied by Vodacom showed that Mr Gysman received a second call from
Ms Gysman
at 20:13:32 on 25 February 2012 and the third and last call
from her on that day at 22:46:17.
[40] Captain Van Wyk testified that the
Police Flying Squad received the incident report at 19:57. At 20:03
the information about
the incident was transmitted to Bloemspruit
Police Station where it was received by W/O Masia. The warrant
officer attended to
the message relayed to him at 20:04. The report
was transmitted by way of a radio announcement and heard by all the
members of
the South African Police Service in Bloemspruit area.
(see 40 exi – b). The incident was reported as house breaking.
It
was indicated in the report that the suspects were still on the
scene at the time the report was made. It was common cause,
therefore,
that the Police Flying Squad received the incident report
for the very first time at 19:57. However it was in dispute as to
whether
the Bloemspruit Police received the incident report from the
Parkroad Flying Squad at 20:03.
[41] The next question I have to
determine concerns the time the police arrived on the scene. The
question is closed related to
the time Mr Gysman visited Bloemspruit
Police. Constable Nduli confirmed that Mr Gysman was in the charge
office that particular
evening. However, he was not in a position to
give evidence of the precise time Mr Gysman personally reported the
incident.
[42] The rest of the police witnesses,
namely:
Constable Jimlongwe, Constable Moea and
student Constable Polumo could throw no light on the matter relating
to Mr Gysman personal
visit to Bloemfontein Police Station. As
regards Constable Du Toit, he had no personal knowledge of Mr Gysman
personal report
of the incident to Bloemspruit Police.
[43] The testimony of Mr Deysel was
that the police vehicles with registration number B……
was parked at Bloemspruit
Police Station immediately before 20:06.
He testified that at 20:06:34 the vehicle left the police station and
proceeded to Stasie
Street. The vehicle reached Stasie Street at
20:09:10. The exact location of the vehicle at 20:10 was indicated
on the Google
map – (vide 11 exi e). The vehicle kept on
moving in that street until it stopped and started idleling at
20:15:00. At
20:39:59 the vehicle was still at the location or
spot-defined by the coordinates longitude-26,2756 and
latitude-29,1295 (vide
35 exi b). The evidence of W/O Masia was that
he drove the vehicle. That then was the movement report of the
vehicle.
[44] Mr Deysel also testified about the
movement of another police vehicle with registration B……...
He said the vehicle
moved from the vicinity of Thaba-Nchu Road, in
other words N8, through a few streets and finally stopped in Stasie
Street at 20:17.
It was agreed between the parties that it was not
necessary for the defendant to call witnesses who were in the
vehicle. The
plaintiff admitted, through her legal representative,
that the specific vehicle attended the scene at plot 171. (vide exi
f).
[45] The evidence needs to be
critically analysed. The two versions were poles apart. The version
presented on behalf of the plaintiff
was that the police arrived on
the scene more than 60 minutes after the incident was reported to
them. The version presented on
the defendant was that the police
arrived on the scene less than 15 minutes after the incident was
reported to them.
[46] Ms Bergman testified that the
incident took place at 19:45. However, her testimony of 22 April
2014 was inconsistent with
her statement of 25 February 2012.
According to her statement, the incident occurred at 19:15 (vide 8
exi a). Although her friends
did not testify, their statements were
exhibited in court. According to Ms Van der Byl the time of the
offence was 19:50 (vide
3 exi a). According to Ms Van Schalkwyk the
time of the offence was 19:00 (vide 14 exi a). Timewise the
discrepancy between Ms
Bergman’s testimony and her statement
was 36 minutes. The magnitude of the disparity was greatly
diminished, if not completely
erased, by Captain Jimlongwe’s
concession during cross examination. She reluctantly conceded that
it was possible that Ms
Bergman told her that the time of the offence
was 19:50 and not 19:15 as stated in her statement.
[47] By 19:50:05 Ms Gysman already knew
about the burglary segment of the incident. She made an unsuccessful
attempt to inform
Mr Gysman about it. About five minutes later, at
19:55:52 to be precise, she managed to reach him. (vide 12 exi a).
Also (see
7 exi a). The cellular data relative to Ms Gysman’s
cellphone +2783 56 7197 and to Mr Gysman’s cellphone +2782 444
9755 provided reliable evidence which indicated the approximate time
at which the offence started. In the light of such objective
evidence, Ms Bergman’s estimation that the trouble started at
about 19:45 must be accepted as reasonably reliable. It was
more or
less in line with Ms Van der Byl’s estimation. Therefore, the
testimony of Mr Bergman must prevail over her statement
on that
point.
[48] Mr Gysman left his place of
residence at 19:30. The incident occurred shortly after his
departure from home. The incident
commenced at 19:45. At 19:55 he
received a call about the incident from Ms Gysman. At that time he
was already at Grasland where
he was visiting his friend, Mr
Matthews. He was taken aback. The whole report concerning burglary
at his house initially made
no sense to him. He initially reckoned
that it was a trivial incident which the security guard and the 3
visitors would easily
deal with. Notwithstanding his total surprise
or disbelief, he nonetheless made a call. The very first call he
made was to the
police emergency number 10111. He made that urgent
call at 19:57 – 19:56:59 to be precise (vide 7 exi a).
[49] At 19:57 the defendant’s
police, in other words the flying Squad unit, received the first
report of the incident. About
six minutes later at 20:02:49 (±20:03)
the defendant’s police, on that occasion the Bloemspruit
Police, received the
second incident report. At that second time
around, the incident report was given by Ms Gysman (vide 12 exi a).
The two incident
reports were undisputed. The defendant admitted
that the police received the two reports.
[50] It was also common cause that Mr
Gysman visited Bloemspruit Police before the police set out to
investigate the matter. Prior
to Mr Gysman’s personal report
they did not have any knowledge of the incident. At the heart of the
dispute was the question
as to what time the police arrived on the
scene. But even before an attempt is made to find an answer to that
question, it is
imperative, first and foremost, to ascertain the time
of Mr Gysman’s arrival at the Bloemspruit Police Station.
[51] The following randomly selected
snippets from Mr Gysman’s direct evidence elucidated the
plaintiff’s contention
that the police failed to react promptly
to the incident report(s) they received:
51.1 “... Ja, toe ek arriveer het
ek uiteraard by die aanklag kantoor aangedoen, ek het vir hulle
gevra, hoor hier wat het
julle nou omtrent Stasie Weg 171,
Bloemspruit gedoen. Hulle het mekaar in verbasing aangestaar, in
hierdie verband kan ek spesifiek
Adjudant Offisier Masia (sic) meld
want ek het sy naam spesifiek geneem, omdat ek ook vroeër
betrokke was by gevalle by Bloemspruit
polisie stasie, was dit vir my
baie noodsaaklik dat ek seker maak met wie praat ek en waaroor het
die gesprek gegaan.”
51.2 “Ja? ... Gepleeg is het ek
van die plot af gery na die polisie stasie toe en toe het ek daar
gaan verneem wat het hulle
gedoen omtrent die oproepe wat myns
insiens omtrent al u uur terug al gemaak, met ander woorde, die
polisie het glad nie gereageer
op die oproep wat Bonja aanvanklik
gemaak het nie en ook die een na 10111 wat uiteraard deur gegee is na
Bloemspruit polisie stasie
toe.”
51.3 “... Met daai spesifieke
persoon gehad het, ja. So my aanwesigheid by die polisie stasie het
hulle eers beweeg omtrent
‘n uur later om, want ek het hulle
vergesel van die polisie stasie af na die plot toe, nadat alles klaar
gebeur het.”
51.4 “MNR MARAIS: Goed, u sê
u het onmiddellik die beamptes, insluitend Adjudant Masea, (sic)
gekonfronteer om daar,
die misdaad is meer as ‘n uur terug
gerapporteer en hulle het nie reageer nie. ... Dit is inderdaad so,
inteendeel miskien
moet ... [tussenbeide]”
51.5 “En u indruk was dat hulle
by u vir die eerste keer verneem het van die misdaad? ... Dit is
inderdaad so, ek het vroeër
genoem dat toe ek daar opdaag by die
aanklag kantoor het hulle mekaar in verbasing aangekyk, op daardie
stadium het niemand geweet
van enige van die twee oproepe wat gemaak
is, soos ek reeds vroeër gesê het, omtrent ‘n uur
tevore nie.”
51.6 “Nou soos ek reeds nou
vantevore genoem het, wat my aanbetref kon ‘n mens die polisie
gelyk gegee het as daar ‘n
kort tydsverloop was, vandat die
oproepe gemaak is totdat hulle uiteindelik gereageer het en ek is
steeds tot vandag van oordeel,
ons kon selfs ‘n jaar ook gegee
het, was dit nie vir my teenwoordigheid, fisiese teenwoordigheid by
die polisie stasie nie,
sou hulle nog nooit gereageer het op die
oproepe wat gemaak is nie. Ek het vroeër ook vir die Hof
genoem, my fisiese teenwoordigheid
na twee oproep, ‘n uur
later, het hulle eers beweeg om by die plot op te daag.”
[52] I have earlier found that the
police received the first incident report at 19:57 and the second at
20:03. Let me simply say
that the defendant received the incident
report at 20:00 for the sake of argument. The golden thread which
runs through all the
snippets quoted above is the implicit allegation
by Mr Gysman that he was at Bloemspruit Police Station at ±21:00,
about
an hour after the incident was reported.
[53] The evidence of Mr Gysman that at
21:00 the police still had not done anything about the incident
report was hotly disputed.
According to W/O Masia’s evidence,
he attended to Mr Gysman in the charge office of Bloemspruit Police
Station. He admitted
that he first heard about the incident from Mr
Gysman and that Mr Gysman was very unhappy; that he complained that
the police did
not react to the earlier calls and that he demanded
that the police should urgently drive to the scene to apprehend the
suspects.
While they were still talking about the incident, he
received a radio message from the flying squad unit about the same
incident.
He ordered his colleague, Constable Moea, to make a
request for back-up. She did so over the radio. He immediately set
out at
20:06. He drove a police vehicle with registration number
BSC220B and followed Mr Gysman to the plot. It took him about 9
minutes
to get there. He left the scene at 21:00 and returned to the
police station.
[54] The evidence of W/O Masia was
materially corroborated by a senior police officer. Captain Van
Wyk’s evidence was that
an incident report was compiled to
record the offence reported at 19:57 to the flying squad unit. The
report was transmitted by
radio to Bloemspruit Police Station at
19:59. At 20:04 W/O Masia attended to the report (vide 40 exi b).
That particular timeline
was very important. According to W/O
Masia’s evidence, Mr Gysman was already at Bloemspruit Police
Station at the time the
incident report was transmitted from the
flying squad unit.
[55] Mr Deysel’s evidence also
materially corroborated the evidence of W/O Masia. He impressed me
as a knowledgeable in the
field of his expertise. His independent
evidence concerning the movements of the police vehicle B……..
was very persuasive.
The movement report he used in support of his
testimony was very detailed and reliable. The movement report
indicated that the
police vehicle, undeniably driven by W/O Masia,
arrived on the scene at 20:15, departed at 21:01 and returned to the
police station
afterwards (vide 18 exi e).
[56] The movement report given by Mr
Deysel in connection with the second police vehicle B……
strongly fortified the
evidence of warrant officer Masia. It was
patrolling the Maxley Small Holdings near the N8 Highway. From there
it made its way
towards the scene. At 20:17 it stopped on the scene
– (vide 14 exi e). It left the scene at 20:48 – (vide 15
exi
e). See also “exi f”.
This particular vehicle was not
attached to Bloemspruit Police.
The timeline of 20:17 was also very
important. By then police vehicle B……. was already on
the scene. Unlike vehicle
B……… which was
spurred into action by Mr Gysman’s personal enquiry, the
movement of BNV360 to the scene
was seemingly activated by a radio
announcement about an emergency at Bloemspruit.
[57] Constable Du Toit was among the
police officers who arrived on the scene. Although he could not
precisely testify about the
exact time of his arrival, his estimation
that it was after 19:00 was not totally insignificant. He did not
estimate that he arrived
after 20:00 let alone after 21:00. He would
probably have repudiated any suggestion that he arrived on the scene
after 21:00.
If there was any conspiracy to fabricate their evidence
as regards the time of their arrival on the scene, the police could
easily
have schooled the constable instead of presenting detailed and
elaborate documentary evidence concerning the movements of their
vehicles. His further evidence was that when he arrived on the scene
some police vehicles were already there. His evidence was
important
because, among others, it indicated that the police did not conspire
to destroy the plaintiff’s case.
[58] Notwithstanding all sorts of
criticisms levelled at Mr Deysel, W/O Masia and Captain Van Wyk, my
belief in them remained unshaken.
In my view the evidence given by
each one of those witnesses was reasonably accurate, credible and
reliable.
[59] It must be borne in mind that the
testimonies of Captain Van Wyk and Mr Deysel were backed up by
documentary evidence. Their
evidence strongly militated against Mr
Gysman’s evidence that the police arrived on the scene at
21:00, an hour after they
had received the incident report. On the
contrary, objectively reliable documentary evidence tendered on
behalf of the defendant
indicated that Bloemspruit Police departed
from the scene at 21:00 and returned to the police station. It could
not be convincingly
disputed that they had earlier arrived on the
scene at 20:15, some 45 minutes earlier than the plaintiff’s
witness alleged.
[60] Indeed the evidence showed that Mr
Gysman was angry on his arrival at the police station. On behalf of
the plaintiff, Mr Maree
submitted that such emotional state fortified
the plaintiff’s contention that the police had failed to react
to the incident
reports within a reasonable time. At a first glance
the submission appeared to be persuasive.
[61] Perhaps the evidence of Ms Gysman
became important in order to understand Mr Gysman’s anger. Her
direct evidence was
that after reading Gayle’s sms to Antonia:
she first called Bloemspruit Police but she could not get through.
She then
called Mr Gysman and informed him about the burglary. She
called the Bloemspruit Police for the second time but again she did
not go through. She called the Bloemspruit Police for the third time
but still she could not go through. Her fourth call to Bloemspruit
Police went through.
[62] Ms Gysman’s cellphone record
(vide 12 exi a) revealed that there were five contacts between her
and Mr Gysman on 25 February
2012 of which 4 were successful.
• The first but unsuccessful
attempt was at 19:50
• The second and successful call
at 19:55
• The third and successful call at
20:07
• The fourth and successful call
at 20:13
• The last and successful call at
22:46
I noted, with interest, that the fourth
contact was at 20:13, only two minutes before the time at which the
police contended they
arrived on the scene. The next contact was at
22:46, some 153 minutes (approximately 2 and half hours) later.
There was no contact
between them from 20:13 to 21:00. Those
timelines encompassed the time spell during which the police
maintained they were on the
scene together with Mr Gysman. The
evidence of Ms Gysman was that she saw Mr Gysman’s car and the
police vehicle when they
arrived on the scene. Therefore, it was
probable that Ms Gysman did not find it necessary to contact Mr
Gysman during that time
because it was obvious to her that he was
busy with the police. The probability strongly favoured the
defendant’s version
on the particular point.
[63] The cellphone record of Ms Gysman
did not support her testimony that she made 3 unsuccessful attempts
to report the incident
to Bloemspruit Police because, as she said,
they did not answer the phone. According to her cellular record, she
made only one
and not four calls to Bloemspruit Police. That one
call at 20:02:49 was successful. The police number she dialled was
+2751 503
4000. It was common cause that the number belonged to
Bloemspruit Police (vide 12 exi a).
[64] Mr Maree asked Ms Gysman:
“U het nie onafhanklike geheue
van die tyd nie? … Nee, nee, nee.”
Her answer was emphatic. Since she had
no independent recollection of timelines, she could not corroborate
Mr Gysman’s testimony
that the police arrived on the scene more
than an hour after they had received and incident report. Moreover,
and this aspect
is of paramount importance, she could not, for the
same reason, honestly deny the defendant’s averment that the
police arrived
on the scene at 20:15 and not at 21:00.
[65] At this juncture it must be clear
why Mr Gysman was in such a ballistic mood when he arrived at the
police station. He had
probably heard, as I did, from Ms Gysman that
she made a few desperate calls to Bloemspruit Police but that the
police simply ignored
her calls. It appeared to me that Mr Gysman
was probably angered by the misinformation which was aggravated by
the appalling report
he subsequently heard from Ms Bergman:
“Hulle het ons verkrag.”
[66] The burglary incident was not
something new to Mr Gysman. His house was previously burgled on a
few occasions. It was that
persistent criminal menace which
compelled him to employ a private security guard. He believed he had
found a lasting solution
to the problem. Great was his disbelief
when he heard about the latest incident. He believed that the would
be housebreakers
would be deterred by the mere presence of the
security guard. He was mistaken. They were not. When he arrived
home that evening
and saw two suspects in his house, he became a
frustrated man. The sight fuelled his anger. His anger got the
better of him.
[67] I suppose that one or two or all
of the aforesaid factors had an adverse impact on Mr Gysman emotional
state. They angered
him very much – hence he lambasted the
police so much on his arrival at the police station and in his
testimony. It must
also be kept in mind that he previously got no
joy from his previous dealings with his local police station. All
those negative
factors and experiences over-clouded his mind and made
him very angry.
[68] The armed housebreakers knew all
too well that the security guard would, after his narrow escape, do
everything he could to
have the burglary reported to the police. It
was highly improbable, given their knowledge and those circumstances,
that they would
have spent such a considerably long period of time in
the house: ±75 minutes according to Ms Bergman and ±60
minutes
according to Mr Gysman. Seeing from this angle, the evidence
of those two witnesses was highly suspect and improbable.
[69] The following timelines were given
by Mr Gysman concerning his movements of the evening in question:
• At ± 19:30 he departed
from his plot at Bloemspruit;
• At ± 19:50 he arrived at
Mr Matthews plot at Grasland;
• At 19:55 he received a call from
Ms Bergman while he was still at Grasland;
• At 19:56 he called flying squad
unit and reported the incident while he was still there;
• At 20:13 he received a call from
Ms Gysman while he was still at the same place;
• At 20:14 he received a call from
Mr Freddie Gysman while he was still there;
• At 20:20 he made a call to
Claudine while he was still at Grasland.
According to him that was the last call
he made while he was still at Grasland. The question was: Was he?
[70] After the call he made to his lady
at 20:20, he made and received no further calls until 20:59. The
first call he received
after those 39 minutes came from Claudine.
During that period of 39 minutes four unsuccessful attempts were made
to contact him
by cellphones. In addition to the calls three sms
messages were sent to him. No caller was able to reach him because
his cellphone
was off.
[71] When he called the flying squad
unit 10111 at 19:56 he was near Ooseinde tower of Vodacom. The
identity number of that tower
was cell id 64871. But when he called
Claudine +2774……… at 20:20 a Vodacom tower cell
id 11345 picked up
his call. The common name of the tower was not
specified in his cellphone records – (vide 7 exi a). His
testimony was that
ay 19:56 and at 20:20 he was still at Grasland.
Now if he was still at his friend’s at Grasland at 20:20 when
he called
Claudine, then Vodacom tower 64871 and not Vodacom tower
11345 would have picked up is call. That discrepancy is telling.
[72] Claudine first called Mr Gysman at
19:59 and her call was registered by the Bloem Airport 3 tower of
Vodacom. The cell id
thereof was 23603. She called him again at
20:59. On that second occasion an undefined cellular tower with cell
id 11345 picked
up her call. It will be noted that it was the same
tower which had earlier picked up Mr Gysman’s call to her.
This indicated
that the two were getting closer together. Mr Gysman
had been in the vicinity of cellular tower 11345 before 20:20.
[73] It can be seen, therefore, that Mr
Gysman had moved between 19:56 and 20:20. At 20:20 he was no longer
at Grasland. He was
within the spotlight radius of cellular tower
11345. Similarly Cladudine had in the meantime moved between 19:59
and 20:59. At
20:59 she was no longer near Bloem Airport 3 tower.
She was in the vicinity of cellular tower 11345. She and Mr Gysman
were near
the same tower. All these cellular data cast some serious
shadow of doubt on Mr Gysman testimony that he was still at Grasland
at 20:20. The shadow of doubt thickens when one considers his
testimony that he left Grasland after the rugby match had ended
at
20:45.
[74] Mr Maree pertinently asked Mr
Gysman to say at what time he left Mr Matthew’s plot at
Grasland.
“Goed, nou om 20:20 was die
laaste oproep, wat het u, kan u, het u toe daar gebly tot die rugby
klaar is of, verduidelik net
vir die Hof wanneer is u toe, wanneer is
u weg by die vriend? … Ek kan nie met sekerheid sê die
presiese tyd nie,
waarna ek wel kan verwys is dat hierdie wedstryde
begin normal weg 19:20 en dan maak dit enige iets tussen 20:30 en
20:45 klaar.
So by benadering sal dit dan wees, dit kan enige tyd
gewees tussen 20:30 en 20:45 wat ek dan my vriend se huis verlaat
het. Ek
het ook vroeër genoem dat ek die rugby klaar gekyk het
daar.”
[75] The timelines the witness assigned
to his supposed time of departure from Grasland were inherently
speculative, uncertain and
unreliable. His answer was loaded with
uncertainty. I find it difficult to reconcile his evidence with his
cellular data. His
evidence that he left Grasland at 20:30 let alone
at 20:45 did not tally with the cellular records the plaintiff relied
upon.
I would, therefore, reject his evidence as untrue and
unreliable.
[76] Mr Matthews testified that he
received a call from Mr Gysman during the course of the evening after
he had driven away from
Grasland. Mr Gysman, he said, told him that
he was on his way to the police station. The timeline pertaining to
the alleged call
would have provided a very decisive cutting edge in
the current dispute. I carefully perused Mr Gysman’s cellular
record
(7-8 exi a) but, lamentably, I could not find any cellular
contact between Mr Gysman (+2782……..) and Mr Matthews
(+2779…….) on 25 February 2012. Ms Gysman identified
cellphone number +2779………. as Mr Matthew’s
cell number and that she called him on that number at 20:05 –
(vide 12 exi a). It follows, therefore, that Mr Matthews credibility
was materially tarnished.
[77] In the light of the evidence as a
whole, I could find no credible and reliable evidence to establish,
on a balance of probabilities,
that the defendant’s police
arrived on the scene long after the incident was reported to them.
The contention of the plaintiff
that the police arrived on the scene
more than an hour after Mr Gysman had reported the incident had no
substance in my view.
There was no credible and reliable evidence,
call it a factually solid foundation, to sustain the argument that
the police had
committed any omission actionable in law.
[78] In Stock v Stock
1981 (3) SA 1280
(A) of 1296 E-F Diemont JA said that an expert witness must be made
to understand that she or he is there to assist the court;
that she
must be neutral if she or he is to be helpful to the court; that his
or her evidence would be of little value when she
or he is partisan
and that a partisan expert witness unlike a neutral expert witness
consistently asserts the cause of the party
who calles him or her.
Where a court is faced with conflicting expert opinions on a crucial
issue, it has to consider the merits
and demerits of each expert
opinion. In such cases, reasons have to be advanced especially for
the rejection of one expert’s
opinion and also for the
acceptance of the other expert’s opinion. See Jacobs &
Another v Transnet Ltd t/a Metrorail
& Another
2015 (1) SA 139
(SCA) para 14.
[79] The ultimate determination of the
court must depend on an analysis of the cogency of the underlying
reasoning which led to
the divergent opinions of the experts.
Buthelezi v Ndaba
2013 (5) SA 437
(SCA) para 14 which decision was
followed in Jacobs case supra. A finding has to be made, one way or
the other, as to the credibility
and reliability of expert opinions
Jacobs supra.
[80] In the instant matter, however,
there were no conflicting expert opinions. There was only one expert
called by the defendant.
The expertise of Mr Deysel was questioned
by the plaintiff.
“16.1 Dit word submiteer dat
getuie Deysel se “deskundigheid” slegs behels dat hy data
wat ontvang word deur die
vlootbestuurstelsel administreer.
16.2 Hy is nie ‘n
inligtingstegnologie spesialis nie.
16.3 Hy gee toe da thy nie betrokke was
in die ontwerp van die betrokke stelsel wat die monitoring doen nie
en bygevolg geen kennis
hieromtrent het nie.”
Mr Deysel was non-partisan in my view.
He was neutral. He understood the aforesaid principles. He resisted
the temptation to
persistently assert the cause of the defendant, the
party that called him. He made concessions where they were due. For
instance,
he conceded that he merely extracted data as set out in the
movement report of the two police vehicles and that he did not verify
whether there were error reports concerning the efficacy of the
system on the day of the incident. On the strength of the aforesaid
concession it was submitted as follows on behalf of the plaintiff:
“Dit word bygevolg submiteer dat
die Hof nie kan bevind dat die tyd wat aangeteken is waar en hoe die
onderskeie twee Polisievoertuie
beweeg het korrek kan wees nie.”
[81] There was no cogent expert opinion
to suggest that the c-track system which Digicore used to constantly
monitor the defendant’s
vehicles was, as a fact, dysfunctional
on Saturday 25 February 2012 especially in the evening when the crime
was committed. The
plaintiff’s contention concerning possible
errors was based on a remote and speculative supposition. It was not
verified
by proven evidence placed before me by an expert opinion
opined by a specialist in the field of information technology after
conducting
an extensive investigation which culminated in a detailed
and well motivated expert assessment report.
[82] Mr Deysel conceded that he was not
directly involved in the original invention of the system. But the
argument that he was
disqualified was hollow. The law does not
require such high standard of inventive expertise before a person can
be appropriately
qualified as an expert in any given field of human
endeavour. Consider the following. The plaintiff herself relied on
cellular
data records extracted from a cellular system by Ms
Petronela Heynecke. Certainly the lady was not the original inventor
of the
cellular communication system. However, she is respected and
recognised countrywide as an expert in that specialised field.
[83] It would be absurd and ridiculous
for anyone to suggest that because she was not the original inventor,
she was, therefore,
not qualified to express expert opinion regarding
the way the system functions. The crux of the matter is not whether
or not she
was the original inventor of the cellular communication
system but whether she has specialised knowledge about the intricate
way
the cellular communication system functions. Her ability to
understand and to interprete the intricacies of the system to a lay
person is a vital ingredient of her rare expertise or knowledge.
[84] The critique levelled against Mr
Deysel had no substance. In my view he acquitted himself very well
as an expert. As I have
already found, he displayed a high degree of
knowledge in the field he testified about. He understood how the
tracking device
functioned. He was at pains to explain the accuracy
of the timelines as indicated in the movement reports. He’s
opinion
was entirely independent of anyone designated to capture the
data. He stressed that such timelines were entirely derived from GPS
generated data used all over the world and disseminated and received
through satellites. Since the movement reports so generated
cannot
be altered by any person authorised to access the information so
generated, the independence, accuracy cogency and integrity
of the
information cannot be doubted by any reasonably objective person. Mr
Deysel gave evidence of good quality. On the proven
objective facts
his expert opinion immensely impressed me. He was a good witness.
[85] There remains one more aspect
relevant to the time factor. The initial report Mr Gysman received
was not about rape. It was
about burglary. Little did he know that
the reported burglary was but a drop in the ocean. The volcano was
about to erupt. He
did not initially regard the incident as a
serious matter. All the same he drove home first instead of driving
to the police station.
On his arrival there he stopped, beamed the
house and blew the horn of his car. As a result of his actions the
suspects obviously
took to flight.
[86] Given those circumstances it was
unrealistic for him or anyone to entertain the hope that the suspects
would still be on the
scene on his return with the police. The
probable chances were that the suspects might probably have been
surprised on the scene
and arrested, there and then, if the witness
had, first of all, driven to the police station. By the look of
things, it would
appear that the witness own untimely visit to the
scene coupled with his unwise actions there frustrated the possible
arrest of
the suspects.
[87] There were two irreconcilable and
mutually destructive versions placed before me. The plaintiff’s
version was that the
police did not respond, in good time, to the
crime reported to them. She contended that their forced response,
approximately an
hour and a half later after they were given an
urgent report of the incident, was hopelessly belated. The
defendant’s version
was that the police did not fail to respond
in good time to the crime incident reported to them as the plaintiff
alleged. The
defendant’s contention was that the police
promptly responded within a quarter of an hour after they had
received the crime
incident report. But when they arrived the horse
had bolted.
[88] The proper approach to evidence by
a court called upon to determine which of the two mutually
destructive versions should be
accepted was restated in Stellenbosch
Farmers Whinery Group Ltd & Another Martell & Others
2003 (1)
SA 11
(SCA) at 14J – 15E. It was held that the technique
generally employed by the courts in resolving such factual disputes
requires
a court to make findings on: firstly, the credibility of
factual witnesses; secondly, the reliability of such witnesses and,
thirdly,
the probabilities or improbabilities of each party’s
version.
[89] As regards credibility on the
disputed issue of time, the version of the plaintiff depended on four
factual witnesses, namely:
Ms Bergman, Ms Gysman, Mr Gysman and Mr
Matthews. Along the way I made some unfavourable findings about each
of those witnesses.
At this stage I deem it unnecessary to repeat
myself save to say that I found the evidence of each one of them
materially wanting
and suspect. They all gave poor accounts as to
time. Ms Bergman’s estimates of time were highly exaggerated.
Mr Gysman’s
evidence as to his time of departure from Grasland
to Bloemspruit was loaded with uncertainties and was highly
questionable. He
was argumentative and openly hostile to counsel for
the defence so much so that counsel for the plaintiff had to
intervene and
calm him down. I did not believe them.
[90] The version of the defendant on
the disputed issue of time largely dependent on the following factual
witnesses, W/O Masia,
Constable Nthuli, Constable Du Toit and Captain
van Wyk. Those witnesses displayed confident and relaxed candour and
demeanour
in the witness box. I detected no bias, blatant or latent,
on their part towards the plaintiff’s cause of action. I did
not get any feeling, real or perceived, that their evidence was
corroboratively tailored to cover up any acts of neglect on their
part at the expense of the plaintiff’s genuine case. There
were no material internal contradictions in the testimonies of
any of
them. Similarly there were no material external contradictions
between the defendant’s one factual witness and another.
It
was never contended on behalf of the plaintiff that anyone of them
contradicted what was pleaded or what was put on behalf
of the
defendant to the plaintiff’s witness. It was never insinuated
that the evidence given by any of them was inconsistent
with any
previous extracurial statement or conduct or established fact.
[91] Although none of them gave a
perfect account of the time the police arrived on the scene, the
quality of the evidence given
by each of them was comparatively
better than that of the evidence given in support of the plaintiff’s
case. They impressed
me as reasonably truthful and trustworthy
witnesses in spite of certain unfavourable aspects of their
testimonies. About the veracity
of the defendant’s factual
witnesses, I was impressed. The same could not be said about the
plaintiff’s.
[92] As regards reliability of the
conflicting versions, the plaintiff’s version on the disputed
issue of time was riddled
with some unfavourable features. For
instance Ms Bergman’s estimates of events taken together
suggested that the police
arrived on the scene 90 minutes after they
had received the incident report from Mr Gysman. There was no
positive evidence, however,
from her which showed that she actually
ascertained the exact time according to any clock, wristwatch,
cellphone, television or
radio when Mr Gysman rescued them from the
scene.
[93] The same unfavourable feature
applied to Mr Gysman. On his arrival at the police station he did
not specifically point out
to W/O Masia what the actual time was,
according to his wristwatch or cellphone or clock on the wall in the
charge office. Neither
Ms Bergman nor Mr Gysman appeared to have had
opportunities to reliably experience or observe the time of the
disputed event.
Their evidence was not in harmony with some of the
crucial timelines as evidenced by the cellular data records of the
plaintiff’s
own witnesses. The evidence as to the time
estimates made by those two witnesses was exceedingly exaggerated, in
my view.
[94] Moreover, Mr Gysman appeared to
harbour resentment against Bloemspruit Police. On account of his
past unhappy experiences
there, he had a motive to be biased. He
appeared to be actuated by a past personal grudge against them rather
than the real facts
of the current incident. In coming to that
conclusion I was fortified by his candid admission that he was the
driving force behind
this civil action.
[95] On the contrary, the calibre and
cogency of the performance of the defendant’s factual
witnesses, namely Captain van
Wyk, W/O Masia, Constable Nthuli and
Constable Du Toit was significantly high and reliable compared to
that of the plaintiff’s
witnesses. The quality and integrity
of their testimonies and the ease with which they recalled the event
enhanced the reliability
of their evidence as to the time the police
arrived on the scene. The evidence of those witnesses was supported
by Mr Deysel.
In this regard, his documentary evidence materially
bolstered the substantive reliability of the defendant’s
witnesses –
(vide exi e).
[96] As regards probabilities and
improbabilities, I think no further analysis and evaluation is still
necessary. I have already
done so before we got here. Therefore,
the third leg of the general technique must not detain us any longer.
Most of the findings
I made on probabilities and improbabilities
favoured the version of the defendant. However, I want to add that
Ms Bergman’s
version that the police arrived on the scene at
21:30 was improvable for the next reason. At 21:30 Ms van der Byl
signed a statement
at the police station. Certainly it would not
have been possible for her to do so if, at that time, she and the
police were still
on the scene.
[97] Now I turn to the question of
onus. As a final step, I am required to determine whether the party
burdened with the onus of
proof has succeeded in discharging it. In
the instant matter the onus rested on the plaintiff. She can only
discharge the onus
by satisfying me, on a balance of probabilities,
that her version as to the time the police arrived on the scene, is
true and accurate
- thus acceptable. The corollary of this norm is
that she must satisfy me that the version advanced by the defendant
is, therefore,
inaccurate and untrue or mistaken - and thus falls to
be rejected. National Employer’s General Insurance Co Ltd v
Jagers
1984 (4) SA 437
(E) at 440D – H. I am persuaded that
she failed to do so.
[98] In the circumstances I have come
to the conclusion that the issue has to be determined in favour of
the defendant. The version
of the plaintiff that the police arrived
on the scene approximately an hour and a half after they had received
the incident report
was inaccurate and untrue. I am, thus inclined
to reject it, as I hereby do. In my view the contrary version
advanced by the
defendant that the police arrived on the scene within
15 minutes after the incident was reported to the flying squad unit
was reasonably
accurate, true and unmistaken.
[99] I would, therefore accept the
defendant’s contention that the police actually reacted to the
report within a reasonable
time. There being no breach of their
legal duty to protect the plaintiff, there can be no conceivable
degree of negligence attributable
to the police. The plaintiff has,
therefore, failed to establish the second leg of the test.
[100] In view of the conclusion I have
reached in connection with the second requisite of the test, it
becomes unnecessary to deal
with the third requisite. Doing so will
serve no practically useful purpose.
In the instant matter, unlike in the
case of Carmichele v Minister of Safety and Security & Another
[2001] ZACC 22
;
2001 (4) SA 938
(CC), there were no proven facts which compelled the
conclusion that the defendant’s police had indeed committed
wrongful
omission. As I see it, there was no wrongful omission by
the defendant’s police to render the defendant delictually
liable
on the grounds of the alleged actionable omission. Therefore,
the action fails.
[101] Accordingly I make the following
order:
101.1 The action is dismissed.
101.2 The defendant is not liable for
any damages the plaintiff may prove to have suffered during the
course of the criminal attack,
assault and rape which was committed
at a plot commonly known as 171 Stasie Weg at Bloemspruit in
Bloemfontein on Saturday 25 February
2012.
101.3 The costs of the action shall be
borne and paid by the plaintiff.
M.H. RAMPAI, J
On behalf of the plaintiff: Attorney
J.J. Maree
Instructed by: Schoeman Maree Inc.
BLOEMFONTEIN
On behalf of the defendant: Adv. I
van Rhyn
Instructed by: State Attorney
BLOEMFONTEIN