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[2015] ZAFSHC 244
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Kunene v Minister of Safety and Security (426/2013) [2015] ZAFSHC 244 (26 November 2015)
IN
THE
HIGH COURT
OF SOUTH
AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No. : 426/2013
In
the application between:-
ANTI
ELSIE
KUNENE
PLAINTIFF
and
MINISTER
OF SAFETY
AND
SECURITY
DEFENDANT
JUDGMENT
BY:
MOLOI, J
HEARD
ON:
12 NOVEMBER 2015
DELIVERED
O
N:
26 NOVEMBER 2015
[1]
This is a delictual claim of a 22 year old female for damages arising
out of her being shot by a member of the police service
on 18 July
2011 at Ezenzeleni township,
Warden. She was
rendered
a paraplegic as a result and she was 18 years old at the time
of the shooting. She is suing the Minister
of Safety and Security
vicariously for compensation for the damages suffered. This judgment
is on the merits alone having agreed
to deal with the merits first
and the quantum, if need be, later.
[2]
On 18 July 2011 the members of the Public Order Policing Unit were
deployed to Ezenzeleni township, Warden, to control the residents
that were protesting the failure to deliver services by particularly
the municipality. A home of one counsellor, Mr Zwane, was
set alight
in the process. The plaintiff was one of the protestors and did not
see the police officer who shot her. The defendant
denies that a
member of the police service shot at and injured the plaintiff.
[3]
On the day in question and at dusk between 7 and 8 pm the plaintiff
left her home to go join the other protestors at the community
hall
in the township. She was in the company of her friends, Phindile and
Tshidi Mokoena. It was a cold and dark night. They joined
a group of
singing and toy-toying people where tyres were burning. Suddenly four
police officers in full uniform appeared. She
heard them saying
"shoot these dogs." The crowd dispersed and ran away in
different directions. The police officers were
carrying long
fire-arms. She and her friends ran towards a church and hid in it. At
the church she, Thabo Mokoena, Ndome Tshabalala,
Yster and Tona
sought refuge. They remained there for a few
minutes and decided to
run away towards
their respective homes.
[4]
As she was running, and near a corner of the street, she felt
something striking her from the back and she fell
to the ground. The
others in her group kept on running leaving her behind. She tried to
get up but she could not. Thabo and Ndome
realized she had fallen
down and came back to help her. She saw a police officer nearby and
asked him for help but he simply walked
past her. When Ndome and
Thabo got to her they decided to call Siphamandla who stays at a
house near the corner to help. Siphamandla
came and they carried the
plaintiff into his house and called an ambulance. The plaintiff was
injured on her back. She did not
know what struck her. She knew the
people she saw were police because they were wearing police uniforms
and had long fire-arms.
Visibility was good. She did not
know who shot her but only the police were there armed with fire
arms.
She was taken to Harrismith hospital and later transferred to
Pelonomi Hospital in Bloemfontein where she was detained for a
month for treatment. She is paralyzed from her waist down as the
bullet struck her spinal cord, pierced the lung and kidneys. During
the day when she was at home the police officers went past and fired
rubber bullets and she picked up one spent rubber bullet on
her
premises.
[5]
In cross-examination she stated that during the day the police
officers were carrying the same type of fire-arms she saw that
night.
She did not know how a normal bullet looked like but she picked up a
rubber bullet at her home during the day. The group
they joined at
the hall was big. When the police officers said "shoot the dogs"
they were referring to them i.e. she
and the group near the tyre
fire. As they were running away from the fire nothing happened and
nobody chased after them. She did
not know who shot her. It was
pointed out to her that in a statement she made to IPID on 18 October
2011 she did not say she saw
the police officers but only a group of
people. She did not know the pistols the police were issued with were
tested against the
three cartridges found at the scene and they were
negative. She did not know rubber bullets could cause the injuries
she sustained.
[6]
Tshidi Mokoena was called as the next witness and she confirmed
having been with Phindile when they went to the plaintiff's
home earlier in the day. She confirmed that she, Phindile and
the plaintiff left the plaintiff's home when they saw smoke
whirling
around and heard voices. It was a tyre that was burning and a
group of people were standing around the fire. She
confirmed police
in uniform appeared and said "shoot these dogs" and she ran
away in a different direction and never
saw the plaintiff again that
evening. In cross examination she confirmed the night was very
cold and dark, that approximately
20 people were around the burning
tyre when police officers came and said they must
shoot the dogs, that police
were also wearing woollen hats with
police insignia and that at the scene the police did not shoot. She
saw the long guns, the
police officers were carrying. She saw three
of them.
[7]
Thabo Mokoena testified that he saw the plaintiff at the tyre
fire and fled with her when the police said they must shoot
the dogs.
The police were wearing the police uniform. He ran with the plaintiff
to hide at the church for some time. When they
left the church he saw
the police and started running. The police chased them carrying long
guns. He heard a gunshot going off.
He looked back and saw the
plaintiff was lying down on the ground. They went back to assist the
plaintiff and a policeman appeared
and he went to hide in a nearby
shack. In cross-examination he stated that he met the plaintiff alone
at the place where approximately
40 people were singing when police
appeared for the first time. There were some police patrolling
in police vehicles
and some on foot. He did not know how many
policemen were in the vicinity. There is a high mast light near the
hall and this lit
up the area. There were four people hiding in the
church. When they left the church he saw police on foot chasing them.
He heard
a gunshot. He and Ndomi tried to assist the plaintiff as she
could not move. The plaintiff was taken to Siphamandla's home and an
ambulance was called.
[8]
Sphamandla Dlamini was sleeping at approximately 9pm on 18 July 2011
when he heard a female voice screaming for
help outside
his home. He woke up people in the house and heard a male voice
calling his name. Through the window he saw a female
person lying
down on the ground. He went out and found Ndomi who asked him to
help. He also realized that it was the plaintiff
lying on the ground
and that the plaintiff was his schoolmate. He and Ndomi took the
plaintiff into his house as she could not
walk. He saw the
plaintiff's back bleeding and tried to stop the blood. He called an
ambulance. Through the window he saw a police
vehicle outside and saw
one policeman looking where there was blood near gate and drove off.
Later an ambulance arrived and took
the plaintiff away. He asked
Ndomi what happened and he said the police shot at them. In cross
examination he stated he asked
what happened before the police van
arrived. He did not know what the police were looking for. He did not
know at which place the
plaintiff was shot. The plaintiff said to him
she did not know who shot her. He would, however, expect her to say
the police shot
her. The plaintiff was crying though she could
readily talk. That closed the case for the plaintiff.
[9]
The defence called first Vusisizwe Makhubu, a constable
attached to the Public Order Policing Unit of the South African
Police Services at Bethlehem. He testified that on 18 July 2011 he
was deployed to Ezenzeleni township at Warden together with
seven
others as there was an unrest there. Their duty was to restore peace
and order. They were issued with stungrenades, cs gas,
batons,
shotguns, rubber bullets and a video camera. CS Gas (teargas) is
released through shotguns and also canisters that are
thrown at the
crowd. They also have shields to protect themselves if objects are
thrown at them. A shotgun is long and must be
handled with both
hands. He described how they work. The 9mm parabellum pistols that
are officially issued may not be used as they
are lethal and use live
ammunition. He was entrusted to operate the video camera and he
remained in the police armoured vehicle
(the Nyala) and recorded the
scenario as they moved around through barricaded streets of the
township. Besides the Nyala there
were also police vans and a combi
(Vito). He had replayed the video he took at the commencement of the
hearing. The IPID took all
their firearms for ballistic testing and
none had been fired on the day in question. No report of shooting was
reported on the
night. No live ammunition was used on the night. The
cross examination related to procedures that the police follow
in the
handling of guns and reports.
[10]
The next witness was Jan Karel Nieuwenhuisen, a Warrant Officer in
the South African Police Service attached to the Forensic
Science
Laboratory in Pretoria. He and Sibiya filed reports regarding the
analysis of the guns sent to them as well as the cartridges
picked
up. The results were negative. Seeketsa Gideon Khumalo, a Warrant
Officer in the South African Police Services at Bethlehem
was at
Zenzeleni, Warden on 18 July 2011. He was the record keeper and made
notes simultaneously with the happenings. He was in
a different Nyala
than the one Makhubu was in. Nobody used live ammunition otherwise he
would have recorded it. He only knew about
a person shot when IPID
made investigations some weeks after the incident. All the issued
fire-arms were taken for analysis
but the report was
negative. In cross-examination he said there were no foot patrols
made on 18 July 2011. It was pointed
out that Makhubu confirmed that
there were foot patrols and he could not answer.
[11]
The plaintiff's case is that she was unlawfully assaulted by an
unidentified member of the South African Police Service by
firing a
shot that hit her on her back resulting in her being rendered
paraplegic. This incident took place at Ezenzeleni township
at
Warden on 18 July 2011. The members of the South African Police
Service were deployed there to combat the protest of the
residents
relating to non-delivery of services by the authorities. The police
officers even stopped the protesters to further attack
the house
of counselor Zwane which was vandalized earlier on the day. The
police officers were provided with shotguns from
which rubber bullets
could be fired as well as teargas canisters and shields to
protect themselves when objects
were hurled at them. In
addition they had the standard issues of 9mm parabellum pistols which
can only be issued to members of
the Police Service and the Defence
Force and are not available to the general public. The members of the
Police Service were accordingly
acting within the scope and in the
course of their duties as employees of the defendant and, as such,
the defendant, being their
employer, is liable for damages suffered
by the plaintiff.
[12]
The damage suffered by the plaintiff was caused when she and her
friends went to join a group of protesters at a place where
a tyre
was burning. Members of the Police SeNice got there and said "shoot
the dogs." The protesters ran away in different
directions and
the plaintiff with others sought refuge in a nearby church. No
shooting or pursuit took place at that stage. After
hiding at the
church for a while, the group decided to leave with a view of each
going to their respective homes. In that process
they saw a member/s
of the police SeNices coming from the opposite direction. The group
then turned around and ran away from the
Police members. Whilst so
running away, the plaintiff was struck by something on her back
and she fell to the ground. One
of the police members who was nearby
ignored the pleas for help by the plaintiff. The members of the
plaintiff's group, Thabo Mokoena
and Ndomi, realized the plaintiff
was hurt and needed help. As they were running away Thabo Mokoena had
seen a long gun being lifted
by one police member and heard a shot
being fired. They called for help from Sphamandla Dlamini who stayed
near the corner where
the plaintiff was injured. The plaintiff was
taken into Dlamini's house and the ambulance was called. Ndomi and
Thabo told Dlamini
the police had shot and injured the plaintiff.
Whilst waiting for the ambulance a police van arrived at the scene.
The lone driver
got out of the vehicle and inspected the place where
the plaintiff had fallen and where her blood was, and left. That is
the evidence
of the plaintiff as corroborated by the witnesses on her
behalf. Nobody can say, however, which police member shot the
plaintiff
but there were no other people at the scene except the
members of the Police SeNices.
[13]
On the other hand, the evidence of the defendant is that on 18 July
2011 members of the Public Order Policing Unit, CIG and
CPU were
deployed to quell the protests in Ezenzeleni township where streets
were barricaded with various objects, protesters singing
and toy
toying and even attacked a house of Councellor Zwane which was left
badly damaged. Over and above their service pistols
they were issued
with shotguns to fire rubber bullets to disperse the protesters,
teargas canisters and shields to protect themselves
if objects were
hurled at them. They may not use live ammunition in the circumstances
as those could be lethal. The witnesses were
in Nyalas all the time,
one operating the video camera if it was daytime and another
recording the event as he saw them or reported
to him by police radio
communication. They never left the Nyalas they used. There were other
police members patrolling the streets
in police vans some on foot and
would report to the recording officer. They never had a report of a
shooting where a person was
injured. At the scene where the plaintiff
was injured three used cartridges which must have been fired from
standard police pistols,
the 9mm parabellum, were found. All the
thirty five members of the Public Order Policing Unit had to give
their official weapons
to IPID for ballistic comparison with the
bullets found and none matched. The bullet shells (used cartridges)
are of the type that
is strictly issued to members of the South
African Police Service or Defence force exclusively and no members of
the public can
acquire them. Therefore, no members of the police
fired a shot that injured the plaintiff.
[14]
The facts that are common cause are the following: On 18 July 2011
the residents of Ezenzeleni township, Warden, were protesting
against the poor service delivery by the authorities (the
municipality); streets were barricaded by placing objects on them,
tyres
were burnt, people were gathering in groups singing and
toy-toying; the house of councellor Zwane was set alight; the
violence
continued between 1?hOO and 24h00 according to the Incident
Book forming part of the Report by the Commander; people were
dispersed;
Units of the South African Police Services,
i.e. the Public Order Police unit, the CIG and CPU, were deployed to
restore
order and to police the situation; the units used 8 vehicles
to patrol and 17 foot patrols; the Public Order Police Unit were
issued
with shotguns and rubber bullets in addition to their
service pistols and were in clearly marked police uniforms; the
plaintiff was injured by being shot; the plaintiff was taken to
the hospital for treatment and is paraplegic as a result
of the
shooting; the plaintiff does not know who shot her, no other
people than the police were at the scene where the plaintiff
was
shot; the police witnesses were not at the scene where the
plaintiff was shot, constable Makhubu was in one Nyala and
Warrant
officer Khumalo was in another Nyala both away from the scene where
the plaintiff was short; three spent cartridges of
police pistols
were found at the scene where the plaintiff was shot; the cartridges
were taken for ballistic analyses and did not
match any of the
pistols of the members of the Public Order Policing Unit and the
bullets issued to the police and the South African
National
Defence Force exclusively and are not for sale to the general public.
[15]
The onus is on the plaintiff to prove that she was shot by a member
of the South African Police Service as a result she sustained
injuries and that the conduct of the police was unlawful. The
plaintiff was part of the protesters and as such she was exercising
her right to protest what she deemed as failure by the authorities to
perform their mandate. She also had a right to associate
with the
other residents. If she was injured while exercising her rights, any
conduct by the police resulting in her suffering
injuries will and
must be unlawful. There is no evidence that the plaintiff was engaged
in unlawful or criminal activity
at the time of her shooting.
That she sustained injuries that rendered her paraplegic is not
disputed. What remains therefore,
is who caused her the injuries she
sustained.
[16]
To answer that question, in the circumstances of this case,
will require inferences to be made in the absence
of direct
evidence as to who shot the plaintiff. The inference that the court
must draw must be the most plausible and obvious
one of the many that
may be drawn:
AA
Onderlinqe
Assuransie
Assosiasie
Bpk
v
De
Beer.
1982(2) SA 603
(A) at 614 where the following was stated at H:
"Wat
oorbly is uiters karige omstandigheidsgetuienis. Die vraag is of die
getuienis sodanig is dat daar bevind kan word dat
die eiseres daarin
geslaag het om op 'n oorwig van waarskynlikhede te bewys dat
Kleinbooi
Moloi
nalatig was. Di! is, na my oordeel, nie nodig dat 'n eiser wat horn
op omstandigheidsgetui enis in 'n siviele saak beroep,
moet bewys dat
die afleiding wat hy die Hof vra om le maak die enigste redelike
afleiding moet wees nie. Hy sal die bewyslas wat
op horn rus kwyt
indien hy die Hof kan oortuig dat die afleiding wat hy voorstaan die
mees voor-die-hand liggende en aanvaarbare
afleiding is van 'n
aantal moontlike afleidings"
The
plaintiff asks the court to find that she was shot by a member of the
Police Service on the night in question. That inference
is, according
to her evidence, the most obvious one (mees voor-die
hand-liggende) because no other people than the police
were at the
scene; after she was shot she saw a police member who
even refused to give her assistance; after she was
taken into
Dlamini's house, a police vehicle arrived at the scene, stopped where
she was shot, a member of the Police alighted
from the vehicle, and
inspected the pool of blood where she was lying whereafter he drove
away.
[17]
Regarding the incident of the 18 July 2011 the Independent Police
Investigating Directorate (then the Independent Complaints'
Directorate) opened an investigation docket for Attempted Murder by
use of a fire-arm. The docket was opened by Piet Joseph Kunene
and
the victim was indicated as Mapaseka Kunene (the plaintiff). The
directorate is the body that investigates offences committed
by the
members of the Police Service and not the general public who report
matters to the South African Police Services. The incident
relates to
the 18th July 2011 at Warden. The Pre Hospital Report of where the
plaintiff was taken by Thabo
Tsotetsi,
a paramedic, states the History/Complaint as
"Gunshot wound chest,
arm and
back" and refers to Kunene of Ezenzeleni.
[18]
The onus is throughout on the plaintiff to prove wrongful conduct on
the part of the defendant and never
shifts:
Naude
NO
v
Transvaal Boot & Shoe
Manufacturing
Co.
1938
AD 379
at 399. But once the plaintiff has proved the wrongful
conduct by the defendant in this case by convincing the court
that the inference she prefers and wants the court to
draw, is the most obvious (plausible)
of all the other possible inferences, the defendant would have
the evidentiary burden to justify the assault on the plaintiff:
Mugwena
and Another v Minister of Safety and
Security,
2006
(4) SA 150
(SCA).
See also
Ntsala
and Others
v Mutual
& Federal Insurance
Co. Ltd
1996 (2) SA 184
(T) at 190 E-F where Els J put it in the
following words:
"I
am satisfied that the
onus
rests throughout on the
plaintiff to prove negligence on the part of the defendant. Once the
plaintiff proves an occurrence
giving rise to an inference of
negligence on the part of the defendant, the latter must produce
evidence to the contrary: he must
tell the remainder of the story, or
take the risk that judgment be given against him."
[19]
In response the defendant's evidence is a denial of the police
shooting and injuring the plaintiff. To substantiate the denial,
the
evidence of Constable Makhubu was led. He was not at the scene where
the plaintiff was shot. His task was to record the events
on a video
machine. His video machine cannot work
at night. He was sitting in a
Nyala that was parked
elsewhere. He did not see the plaintiff that night. The
evidence of Warrant Officer Khumalo was that
he was also in another
Nyala somewhere in Ezenzeleni township. His task was to record the
happenings of the day which he saw personally
or were relayed to him
through radio or other means. He was nowhere near the place where the
plaintiff was shot. Warrant Officer
Niewenhuys is a ballistic expert
in Pretoria. He received the three spent cartridges (casings) for
comparison with the thirty five
service pistols issued to members of
Public Order Policing Unit and they proved negative. He confirmed,
however, that the three
cartridges (casings) found at the scene where
the plaintiff was allegedly shot can only be issued and used by the
members of the
South African Police Services or the South African
National Defence Force. There is no evidence that the latter was
involved in
the operations of the day but there is evidence that
there were two other units of the South African Police Service
involved, namely
the CIG and the CPU. There is no evidence that the
service pistols of the members of the CIG and the CPU were also sent
for comparison
with the cartridges (casings) found at the scene where
the plaintiff was shot.
[20]
It was contended on behalf of the defendant that there is no
nexus
between the conduct of the police and the damage caused to the
plaintiff. The
onus
on the plaintiff is discharged if on a
preponderance of probabilities she can prove that she was shot on the
night in question and
that the only people that had fire arms at the
scenewere members of the Police Service and these gave chase to them
and had
threatened to shoot earlier.
In
Cooper and
Another
v Merchant
Trade
Finance
Ltd
2000 (3) SA 1009
(SCA) at 1026 E-F Zulman JA stated
"It
is not incumbent upon the party who bears the onus of proving... to
eliminate by evidence all possible reasons for the
making of the
disposition other than an intention to prefer. This is so because the
Court, in drawing inferences from the proved
facts, acts on a
preponderance of probability. The inference of an intention to prefer
is one which is, on a balance of probabilities,
the most probable,
although not necessarily the only inference to be drawn."
Plausible
and probable mean "most likely," "acceptable,"
"suitable," "credible" in the light
of the proven
facts. If the test is applied to the set of facts in this case, one
cannot escape the inference that it is the police
that shot the
plaintiff on the night of the 18th July 2011 as a consequence of
which she is rendered a paraplegic. The conclusion
is
inescapable, especially in view of lack of another side of the story
by the defendant but a mere denial.
[21]
The liability of the Minister of Safety and Security will arise if
any member of the police service causes damage to a person
in
circumstances that cannot be justified. If the plaintiff was shot by
a member of the CIG or the CPU, the Minister will still
be liable,
because they are also units of the South African Police Service.
[22]
In the premises I find that the defendant is liable for the damages
caused to the plaintiff. The costs order will be held in
abeyance
until quantum is determined.
_____________________
K.
J MOLOI
On
behalf of the plaintiff:
Adv. SNELLENBURG
Instructed by:
HONEY ATTORNEYS
BLOEMFONTEIN
On
behalf of the defendant:
Adv. NORMAN SC
Instructed by:
STATE
ATTORNEY
BLOEMFONTEIN