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[2015] ZAKZDHC 4
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Dludla v Minister of Safety and Security (9234/94) [2015] ZAKZDHC 4 (11 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
Case
No. 9234/94
MUNGISI
DLUDLA
..............................................................................................
PLAINTIFF
v
MINISTER
OF SAFETY AND
SECURITY
....................................................
DEFENDANT
JUDGMENT
Delivered on: 11
February 2015
MOODLEY
J
[1]
Arising out an incident which occurred on the 3 June 1994 in the
Chesterville Township, Durban during which the plaintiff was
shot and
arrested by a member of the South African Police Services, and
subsequently charged and detained until the charges against
him were
withdrawn on 21 June 1994, the plaintiff instituted an action against
the defendant in November 1994 for damages.
[2]
The plaintiff alleges he was shot unlawfully by a policeman acting in
the course and scope of his employment with the Defendant,
and that
his subsequent arrest and detention at the King Edward Vlll Hospital
and Cato Manor Police cells at the instance of the
same policeman and
other employees of the defendant, were also unlawful. He
alleges further that his prosecution was wrongful
and malicious as
the policeman or policemen had charged him without reasonable or
probable cause and without reasonable belief
that he was guilty of
attempted murder. As a consequence being charged, the plaintiff was
required to appear in court on 2 days.
On the second day the charge
was withdrawn.
[3]
The plaintiff contends that the defendant is therefore liable to
compensate him for damages in the sum of R392 000, constituted
as follows:
(a) R342 000 –
for future medical expenses, general damages for pain, suffering,
disability, loss of enjoyment of life amenities
etc.
(b) R20 000 –
for unlawful arrest and detention.
(c) R15 000 –
for malicious prosecution
(d) R5 000 - for
reasonable legal fees
(e) R10 000 -
for
contumelia
and
iniuria
.
[4]
The defendant admits that the plaintiff was shot and injured by 2
members of the South African Police Services acting the course
and
scope of their employment with the defendant, and subsequently
arrested, detained and charged but contends that the shooting,
arrest
and detention of the plaintiff was lawful because the plaintiff shot
at the policemen with a firearm and they fired back
at the plaintiff
in self-defence and /or in order to effect a lawful arrest of the
plaintiff for attempted murder. The defendant
also denies that the
prosecution of the plaintiff was wrongful or malicious, and contends
that the decision to prosecute lay with
the prosecution authorities.
[5]
At the commencement of the trial I was advised that the parties had
agreed to separate the issues of liability and quantum of
damages,
and the trial proceeded in respect of liability alone.
Summary
of facts:
[6]
As a result of the civil unrest and gang violence during 1994 in the
Chesterville area and other townships, a special Riot Unit
constituted by members of the South African Police Services, was
based at the Chesterville police station, which was situated on
Mahlathi Road (formerly Wiggens Road). The Riot Unit was a
reactionary unit whose members were tasked to investigate unrest in
the townships and to take measures to curb and prevent violence.
[7]
It was common cause that:
(a)
On 3 June 1994, Ian Robin Prentis (Prentis)
and Keith Oliver Bennett (Bennett) who were members of
Unit 9 of the Riot
Unit based at the Chesterville police station,
were on duty and, at all material times, acted in the course and
scope of their
employment with the defendant.
(b) At about 16h30
on that day, Prentis and Bennett investigated unrest and gunshots
fired in the vicinity of Mahlati Road and the
Chesterville Town
Centre. They ran toward Masuku Road. Both were armed with R5 rifles.
(c) At the same
time, the plaintiff was walking on Masuku Road.
(d) Both Prentis and
Bennett fired at the Plaintiff but only the shots fired by Prentis
hit him.
(e) The plaintiff
sustained bullet wounds to his left calf, left mid-thigh and right
upper arm; he was arrested by Prentis and kept
under guard by Bennett
at the scene, and was hospitalised under police guard at the King
Edward VIII Hospital from 3 June 1994
to 17 June 1994.
(f) He was
subsequently detained at the Cato Manor police cells from 17 June
1994 until 20 June 1994.
(g) The plaintiff
was taken to the Regional Court Durban on 20 and 21 June 1994. On 21
June 1994 the charge of attempted murder
against him was withdrawn
without the plaintiff being formally indicted.
(h) No firearm was
recovered at the scene of crime, despite extensive search by the
police.
(i) The defendant
was unable to locate the docket, any documentation or exhibits
relating to this incident or the withdrawal of
the charge of
attempted murder against the plaintiff.
[8]
The plaintiff assumed the duty to begin. However as it was common
cause that the police had shot the plaintiff, the onus lay
on the
defendant to prove on a balance of probabilities that in shooting the
plaintiff, the policemen had acted in self-defence
and to effect a
lawful arrest of the plaintiff because he had shot at them and he had
been arrested and detained lawfully. It was
also common cause that
the police had instigated the charge of attempted murder and the
charge was withdrawn without the plaintiff
being formally charged in
court.
[9]
Consequently the issues for determination are whether:
(a)
the plaintiff shot at the two policemen;
(b)
the policemen shot the plaintiff in
self-defence and /or to effect a lawful arrest;
(c)
the shooting, arrest and detention of
the plaintiff were lawful; and
(d)
the police and/or prosecuting authority had
acted without reasonable and probable cause and with malice in
prosecuting the plaintiff
and the prosecution had failed.
The
plaintiff’s case
[10]
The plaintiff testified and called one witness.
[11]
He testified that on Friday, 3 October 1994, at about 15h30 he left
his home situate at House 131, Mahlati Road, Chesterville
and walked
to the house of a teacher, Khonto Nxumalo who also lived on Mahlati
Road to attend tuition in English. On his
way back at
approximately 16h40, he took a shorter route home through a park and
via Masuku Road. He was on Masuku Road, when he
heard gunshots behind
him.
[12]
Occupants of the second house on Masuku Road enquired from the
plaintiff what was happening. He responded that the police who
were
running across the park were shooting and had resumed walking, when
he was shot. He fell and rolled down the embankment at
the side of
the road. He could not move as his arm was broken, there were three
injuries to his left leg and he was bleeding extensively.
[13]
One Vela Madlala (Madlala) and later Wandile Thiba and Mathombi
Biyela, attempted to help the plaintiff but he refused any
help
although he was in pain and bleeding.
[14]
The police arrived about 45 minutes later. One policeman (whom the
plaintiff referred to as ‘Ian’; it was common
cause that
he was Prentis) pointed a firearm at him and searched him, but did
not find anything. Prentis took off the plaintiff’s
pants, shirt and takkies and placed it to the side of him. He then
pressed his booted foot down on the plaintiff’s left leg
and
demanded that the plaintiff hand over his firearm. The plaintiff did
not respond.
[15]
About 10 minutes later, another policeman arrived. (It was not
disputed that this policeman was Bennett.) He directed the members
of
the public to carry the plaintiff up to the road in a blanket. The
plaintiff was cold and people brought blankets to cover him.
The
blood from his wounds flowed onto the road. The policemen chased away
the people who surrounded the plaintiff, and then called
an
ambulance. Prentis told Bennett that he had run out of bullets, and
asked him for more bullets. Bennett gave him about 10 bullets.
[16]
The ambulance arrived 25-30 minutes later but the paramedics were not
allowed to attend to the plaintiff until a primer residue
test was
conducted on his hands. Prentis told the plaintiff that the test
constituted evidence that he was shot because he had
been carrying a
firearm and would be utilised in court.
[17]
The plaintiff was then placed in an ambulance with Mathombi Biyela
and Wandile Thiba, and guarded by Prentis, taken to King
Edward VIII
Hospital, where he remained under police guard. Prentis told him that
he was under guard because he had been in possession
of a firearm and
had been shot. Prentis was relieved on the morning of 4 June 1994 by
a policeman by the name of Geoffrey Zikalala,
who interviewed the
plaintiff about the shooting and told him that he had been shot by
Prentis. Zikalala had died by the time of
the trial.
[18]
Approximately seventeen days later, on a Friday, the plaintiff was
discharged from hospital and detained at the Cato Manor
Police
Station over the weekend. He was still wearing pyjamas from the
hospital and did not know what had happened to his clothes.
[19]
The plaintiff taken to the regional court on the Monday but was not
called into court because some documents were not available.
He spent
the night at Westville prison and was taken back to court the next
day. He was held in a cell until Zikalala arrived with
the
documentation. The plaintiff was then informed by the court that the
charges against him were withdrawn.
[20]
The plaintiff denied that he had ever owned a firearm or fired one or
that he had shot at the police and was injured when they
fired back
at him. He also denied any knowledge about a gang fight on the day he
was shot or any attempted intervention by the
police.
[21]
Although the plaintiff initially impressed as an intelligent and
articulate witness, the inconsistencies in his version of
events that
occurred after he was shot and his evasiveness under
cross-examination, and the improbabilities in his evidence impacted
adversely on his credibility. Under cross-examination, he became more
and more voluble but less credible, and his previously convincing
artlessness became defensive protestations. He refused to answer some
pertinent questions in the name of ‘progress’.
[22]
Vela Innocent Madlala, who was 35 years old at the date of the trial,
testified that he was a lifelong resident at 605 Masuku
Road. He knew
that the plaintiff lived in Chesterville but was not his friend.
[23]
On 3 June 1994 he was sent by his mother to buy bread and sugar at a
shop on Road 14, which is a short road that runs alongside
the park.
He passed a large number of people on Road 14, including the
plaintiff and Mathombi who were going towards Masuku Road,
which
intersects with Road 3 (Ngwenya Road) and Road 14. He did not see any
police or members of the gang on his way to the store.
[24]
While making his purchases Madlala heard gunshots coming from the
direction of the park, which continued for quite a long while.
The
owner of the shop shut the shop. From the veranda of the shop,
Madlala saw the ‘Chesterville gang’ (a gang of
‘criminals’ from Chesterville) run down Road 14 with
about five policemen running behind them. The gang and the police
were shooting as they ran towards and down Ngwenya Road.
[25]
The plaintiff was not near the gang or the police and Madlala did not
see whether the gang or the police shot the plaintiff,
but he saw the
plaintiff falling and ran to assist him. When Madlala reached him,
the plaintiff was lying next to a fence, screaming
and crying. He
refused to allow Madlala to assist him. Madlala’s mother and
other people including Mathombi, Lindiwe, Nomvula
and Sthombe also
tried to help the plaintiff.
[26]
When the police arrived some time later, they went straight to the
plaintiff, and moved everybody, including Madlala, away
from him.
However Madlala observed one policeman take off the plaintiff’s
clothes and put a tin on his hands while he was
still lying in the
yard. The plaintiff was then carried up the hill in a blanket by the
police and placed on the grass near the
road. Members of the public
were not allowed to touch the plaintiff. Madlala was at that point
chased away by his parents. He therefore
only observed what happened
at the bottom of the embankment, and not at the roadside, after the
plaintiff was carried up to the
road.
[27]
Madlala described the plaintiff as a “charmer” or as a
“girl magnet” in the area. He disagreed
with the
plaintiff’s version that there was no one on the road but him;
he was confident that he saw people on Masuku Road
and the plaintiff
walking with some girls, even if the plaintiff had not seen him.
[28]
Madlala testified quite confidently and had no hesitation in
contradicting the plaintiff’s version, until he became aware
that the discrepancies were between his version and that of the
plaintiff. He then began to backtrack, saying that the incident
had happened a long time ago. Madlala failed to corroborate material
aspects of the plaintiff’s evidence, as will become
apparent in
the evaluation of the evidence.
Defendant’s
case
[29]
The two policemen who shot at the plaintiff testified.
[30]
Robert Ian Prentis testified that on 3 June 1994, he was on duty as a
gate guard at the Chesterville police station. He was
sitting in his
vehicle at the gate, when he heard gunshots which went on for 2 to 3
minutes about 400-500 metres away, in the direction
of Nala or Molefi
Road.
[31]
Prentis suspected that the police may be under attack because the
police were frequently ambushed, the police station had been
attacked
previously and two policemen had been shot near the station a few
months earlier. He therefore took his R5 rifle out of
the vehicle.
However he realised that there was a gunfight between two rival
gangs. He saw one group of young men running towards
the shop near
Chesterville Secondary School. He described the area as a ‘Community
Centre’ with shops, a taxi rank
etc.
[32]
The police station was a vantage point because it was above road
level. He watched the gang of 15-20 men from about 150-200
meters
away and lost sight of them intermittently when they were hidden by
bushes, buildings and trees as they ran from Nala/Molefe
Roads
towards Ngwenya Road. He could not identify the gang and was not sure
if they were shooting or being shot at. Four or five
men were
carrying rifles, handguns and sticks.
[33]
Although he realised that the police were not under attack, Prentis
decided to intercept the gang to prevent them from shooting
or
killing anyone and to investigate what was happening. He ran left
from his post towards the school on Mahlati Road and then
across the
park. The gang ran onto Masuku Road while he was still in the park
about 75-100 metres away. Bennett joined Prentis,
following to his
right. He did not speak to Bennett but heard him running behind.
[34]
There were a lot of people running at this stage as people from the
shops and those on the road also started running. There
were women
and children among the people on the road as it was between 16h40 and
17h00 which was generally a busy time. Gunfire
from over the hill
could still be heard. When the gang reached the point where the cars
on Exhibit B2 are parked, Prentis was still
about 10 metres away from
the road and there were members of the public on the road between him
and the gang.
[35]
While the others ran on, Prentis saw one of the men stop near a path
on Masuku Road, turn and face them, and then shoot in
their
direction. Prentis immediately fired four to five rounds of
ammunition at the plaintiff and hit him. Bennett also fired.
Prentis
did not know who he was shooting at but presumed that they both fired
at the suspect as he was the only threat. The plaintiff
fell into the
grass and Prentis lost sight of him and his firearm.
[36]
Prentis did not move immediately because he wanted to secure the
area. He walked onto Masuku Road and towards where the plaintiff
had
fallen. Prentis had to search for him because he was not where he had
fallen but 20-30 metres away, lying at the bottom of
the embankment.
He was alone. Prentis then went down to him while Bennett stayed on
the road.
[37]
The plaintiff was conscious and lying on his back. He had sustained
injuries to his arm and his upper left leg and was bleeding
profusely. Prentis pointed his firearm at him and asked him for his
firearm, which he denied he had. Prentis searched the vicinity
for a
firearm but did not find one. He told Bennett that he could not find
the firearm. He then instructed the plaintiff to walk
up to the road,
which he did. He could not remember what the plaintiff was wearing.
After they reached the road a crowd gathered,
but he moved them
away. He was alone at that point because Bennett had gone to
radio for back up.
[38]
The Casspir and ambulance arrived about 30-35 minutes later and the
paramedics attended to the plaintiff before he was taken
away in the
ambulance. Prentis did not accompany the plaintiff to the hospital or
stand guard over him, although a police guard
would usually have
accompanied a suspect. He did not see him again or know what happened
to him once he was taken away.
[39]
Prentis found about 10-15 spent 9mm cartridges on the road near where
the plaintiff was shot, which he marked with a stone
but did not
remove. He reported to the commander on the scene. He was questioned
about the ammunition used, how much was left and
the circumstances
under which he fired the shots. He went off duty after making the
report. He later made a statement. A shooting
report was also
compiled, the objective of which was to determine if the shooting was
justified. If it was not, Prentis would have
been charged, which he
was not. The Plaintiff however had laid a charge of attempted murder
against Prentis but he had not been
prosecuted on the charge.
[40]
Prentis confirmed that he had arrested and detained the suspect at
the scene. He admitted that he had deliberately shot the
plaintiff
but denied that his actions were unlawful because the plaintiff shot
at them and he intended to eliminate the threat
constituted by the
plaintiff to himself, his colleague and members of the public on the
road. Although he was not under instructions
to investigate the
gunfire or any disturbance in close proximity to the police station,
he had done so because he was there to
protect the people and secure
the area and the shots fired by the plaintiff may have struck people
on the road.
[41]
Prentis confirmed that he had pointed a firearm at the plaintiff
while he lay on the ground because the plaintiff may still
have been
armed. He denied that he threatened the plaintiff or that he had
pressed on him with his boot or stripped off his clothing
or that
community members assisted the plaintiff onto a blanket. He was not
aware that a primer residue test was conducted on the
suspect. He
denied that he had asked Bennett for ammunition, as he had only fired
four or five rounds. He did not have authority
to order that a primer
residue test be conducted or to give orders to the paramedics. His
responsibilities were to search for the
firearm and keep the
community away.
[42]
Prentis was a confident witness and related the details of the
incident without faltering or contradiction, even under strenuous
cross-examination. He persisted that the plaintiff had carried a
firearm, which he described without hesitation, and shot at them
before they fired back at him.
[43]
Theo Oliver Bennett, on the other hand, admitted that his testimony
was constrained by his poor recollection and impressed
on the court
that his estimates of distance were just that. He was in fact
inconsistent with his estimates of distance and numbers.
He referred
to ‘the suspect’ in his testimony but it was common cause
that he referred to the plaintiff.
[44]
He testified that between 16h30–17h30 on 3 June 1994, while
inside the police station, he heard shooting from the buildings
to
the right of the police station. The shots seemed to emanate from
small firearms and continued for about 5 minutes. He grabbed
his
firearm, a R5 rifle, and with Prentis and a black policeman whose
name he could not remember, ran out of the gate of the police
station. Although they left the station together they did not
discuss strategy.
[45]
They ran around the buildings and along the path in the park. There
were people running down from the top of the road alongside
the park.
He did not notice whether any of them carried firearms.
The shooting continued as they approached Masuku
Road, on which there
were a number of people, including children. From their elevated
position, Bennett noticed 2 young men walking
side by side in the
middle of Masuku Road about 60–80 meters ahead of them. (He
later stated that they were approximately
50–60 meters away.)
They were walking away from the direction of the gunfire down Masuku
Road, but looking around. He could
not remember their clothing. One
of the men who was carrying an object which resembled a firearm,
turned and fired at them.
[46]
Both he and Prentis retaliated in self-defence. Prentis shot first
but they subsequently shot together and then both stopped
as soon as
the men turned and started running. Bennett fired 3 or 4 shots. The
black policeman who remained with them throughout
the incident did
not shoot. The suspect was facing them when he fired and they shot at
him while he was still standing. The plaintiff
ran about 80-100
metres from where he was shot before he fell into a ditch on the left
of Masuku Road. It took Prentiss and Bennett
about 3 minutes to work
their way to where the plaintiff disappeared. People were gathering
around. Prentis went to the suspect
and asked for his firearm but he
did not produce it. Bennett did not speak to the suspect, but
remained on guard in his immediate
vicinity. He was able to see
Prentis most of the time although Prentis was in the ditch and would
have seen him removing the plaintiff’s
clothing had Prentis
done so. He added that it would have been so unusual that he would
have remembered. The situation was also
very volatile and they would
not have wanted to antagonise anyone. He did not recall anyone going
to the plaintiff while Prentis
was with him.
[47]
The ambulance arrived about 45 minutes later and the backup and
police, about an hour later. Bennett did not know if the plaintiff
was searched or whether Prentiss pressed down on his injured leg and
could not recall how long he lay in the ditch and on the road
before
the ambulance arrived. He did not know how the plaintiff moved up to
the road or whether the paramedics were prevented from
taking him
into the ambulance. But he denied the allegation that Prentis ran out
of ammunition and asked him for bullets which
he handed to Prentis,
declaring that Prentis was not a person who would have run out of
ammunition.
[48]
Bennett did not guard or see the plaintiff after the incident. He was
also certain that neither he nor Prentis went to the
hospital with
the plaintiff as they had remained at the scene until it was quite
dark searching for the firearm. They did not find
the firearm but
they found several empty cartridges (5 or 10) which may have been
9mm, on the road from where the plaintiff had
shot at them. A primer
residue test was done on Bennett after the ambulance arrived, but he
did not observe tests on anyone else.
Bennett made a statement on the
same evening. He did not follow up on the matter and left the service
in September 2009.
[49]
Under cross-examination Bennett confirmed that they had not needed
authorisation to go on the operation as they were all trained
to
react to the shooting. Only the radio operator and the guard would
not usually leave the station, but even the guard could move
to
investigate an occurrence. Bennett confirmed that Prentis would have
been at his post but could not recall where the third policeman
came
from. Bennett’s intention was not to shoot or to get involved
in the shooting but to investigate what was happening,
especially
because the shooting had gone on for an extended period.
[50]
Bennett maintained that he and Prentis had acted lawfully. He saw the
object in the plaintiff’s hand and the plaintiff
then fired. He
then fired in self-defence, and also to protect the people on the
road who were under threat from stray bullets
shot by the plaintiff.
They stopped the suspect shooting by shooting him. Bennett described
himself as cautious by nature and had
therefore taken sufficient
caution before he fired at the plaintiff. He emphasised that
everything happened very quickly but was
adamant that the plaintiff
had a firearm. Therefore even if Prentis had not fired first, he
would have shot at the plaintiff.
Legal
Principles
Unlawful
arrest
[51]
Section 39
of
the
Criminal Procedure Act No 51 of 1977
(the Act) states
:
‘
Manner
and effect of arrest
(1) An arrest shall
be effected with or without a warrant and, unless the person to be
arrested submits to custody, by actually
touching his body or, if the
circumstances so require, by forcibly confining his body.
(2) The person
effecting an arrest shall, at the time of effecting the arrest or
immediately after effecting the arrest, inform
the arrested person of
the cause of the arrest or, in the case of an arrest effected by
virtue of a warrant, upon demand of the
person arrested hand him a
copy of the warrant.
(3) The effect of an
arrest shall be that the person arrested shall be in lawful custody
and that he shall be detained in custody
until he is lawfully
discharged or released from custody.’
[52]
The requirement that the arrested person be informed of the reason
for his arrest while the arrest is being executed or as
soon
thereafter as is practically possible, is strictly applied because an
arrest drastically curtails a fundamental right of the
arrested
person. In the context of subsection 2 'immediately' means 'as soon
as practically possible', not 'instantaneously'.
[53]
In
Minister
of Law and Order v Kader
[1]
it was held that, in applying the principle that the nature and
extent of information the arrestor is required to impart to the
arrested person depends on the circumstances of each case,
particularly the arrested person's knowledge concerning the cause of
his arrest. The notification of the reason for the arrest is in
principle a prerequisite for lawful arrest but does not affect
the
legality of the arrest itself, but merely the legality of the
subsequent detention. The detention of a person lawfully arrested
but
not brought to court within 48 hours in terms of Section 50 will not
continue to be lawful because of Section 39(3), which
provides for
lawful detention during the period between lawful arrest and the
first court appearance but does not necessarily legalise
a detainee's
detention until charges against him are eventually withdrawn.
[2]
[54]
Section 40(1)(a)
of the Act provides that a peace officer may
without a warrant arrest any person who commits or attempts to commit
an offence in
his presence. The jurisdictional facts necessary for an
arrest under
Section 40(1)(a)
are:
(a)
the arrestor must be a peace officer;
(b)
an offence must have been committed or
there must have been an attempt to commit an offence; and
(c)
the
offence or attempted offence must be committed in his or her
presence.
[3]
[55]
An arrest is a drastic interference with the rights of the individual
to personal liberty and dignity and the lawfulness of
his or her
arrest must therefore be objectively justifiable.
[4]
[56]
It is trite that the onus rests on a defendant to justify an arrest.
In
Minister
of Law and Order & Others v Hurley & Another,
Rabie CJ
explained :
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the
onus
of
proving that his action was justified in law.’
[5]
[57]
In
Minister
of Safety and Security & Another v Swart
[6]
the
Supreme
Court of Appeal held that t
he
onus to prove that an arrest was lawful rests on the arresting
officer.
[58]
In
Minister
of Safety & Security v Tyulu
the
Supreme Court of Appeal confirmed that the appellant (defendant
before the court a quo)
bore the
onus of establishing the lawfulness of the respondent's arrest on a
balance of probabilities.
‘
It
is correct, as the Full Bench found, that the appellant bore the onus
of establishing the lawfulness of the respondent's arrest
on a
balance of probabilities (
Minister
of Law & Order & another v Dempsey
1988 (3) SA 19
(A) at 38B–C and
Zealand
v Minister of Justice & Constitutional Development
2008 (2) SACR 1
(CC) [also reported at
[2008] JOL 21448
(CC)–Ed] at paragraphs
[24]–[25]).
[7]
[59]
The lawfulness of an arrest is closely connected to the facts of each
situation.
[8]
Self-Defence
[60]
The defendant also has the onus in respect of the reliance on
self-defence as the reason for the shooting of the plaintiff.
In
Mabaso
v Felix,
[9]
the
court stated
:
‘
We
also think that, if the excuse or justification pleaded is
self-defence, the onus is generally on the defendant too to plead
and
prove that the force used by him in defending himself was in the
circumstances reasonable and commensurate with the plaintiff's
alleged aggression, again unless the pleadings place the onus on the
plaintiff.’
[10]
and
further
‘
the
onus of proving that the force used in self-defence was reasonable
and legitimate would also be on the defendant.’
[11]
[61]
Similarly in
Minister of Law and Order v Milne, Nugent J
held
that :
‘
The
approach which is taken by our law was set out in
R
v Molife
1940 AD 202
at 204 and R v Attwood
1946 AD 331
at 340 (see
too R v Patel
1959 (3) SA 121
(A) at 123A)
.
In Attwood's case Watermeyer CJ said that homicide in self-defence is
justified if the person concerned 'had been unlawfully attacked
and
had reasonable grounds for thinking that he was in danger of death or
serious injury, that the means he used were not excessive
in relation
to the danger, and that the means he used were the only or least
dangerous means whereby he could have avoided the
danger'.
[12]
[62]
In
Salmond
and Heuston on Torts,
the following is said:
'It is lawful for
any person to use a reasonable degree of force for the protection of
himself or any other person against any unlawful
use of force. . . .
Force is not reasonable if it is either (i) unnecessary - ie greater
than is requisite for the purpose - or
(ii) disproportionate to the
evil to be prevented.'
For
the defence to succeed then, the force which was used must not only
be necessary, but must also not be excessive. These are
separate and
distinct requirements. It ought not to be thought that, once there is
some risk of death or injury, resort may necessarily
be had to lethal
force merely because that is the only means available to repel the
risk.’
[13]
Evaluation
of Evidence
[63]
The court was faced with two mutually destructive versions, which lay
to be resolved in accordance with the technique set out
in
Stellenbosch Farmers Winery Group Ltd & Another v Martell et
Cie & Others
‘
The
technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may
be
summarised
as follows. To come to a conclusion on the disputed issues the court
must make findings on
(a)
the
credibility of the various factual witnesses,
(b)
their
reliability, and
(c)
the
probabilities. As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression of the veracity of the witness. That
in turn
will depend on a variety of subsidiary factors such as (i) the
witness' candour and demeanour in witness-box, (ii) his
bias, latent
and blatant, (iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded or
put on his behalf,
or with established fact or with his own extracurial statements or
actions, (v) the probability or improbability
of particular aspects
of his version, and (vi) the calibre and cogency of his performance
compared to that of other witnesses testifying
about same incident or
events. As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v), on (i) the opportunities he had to experience and
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party's version
on
each of the disputed issues. In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of
proof has succeeded in discharging it.’
[14]
[64]
In
McAlister
v Wavelengths and Mazeka
[15]
Swain
J
held that the versions advanced must not only be probable but must
also accord with common sense and logic.
Evaluation
[65]
In evaluating the testimony of the witnesses, I have remained mindful
of the environment in which the incident occurred: that
this was at
the dawn of the constitutional era in South Africa, when many
pre-constitutional practices still persisted, and the
prevailing
conduct of the armed forces and police did not always accord with the
demands of the Bill of Rights and Constitutional
imperatives of
respect for human rights and dignity.
[66]
I have also been mindful that the duration of the period intervening
between the occurrence of the shooting and the trial may
have
impaired the recollection of the witnesses. Further the configuration
of the intersection of Road 14, Ngwenya Road and Masuku
Road as
depicted in Exhibit B3 was not the same as on the date of the
incident.
The
mutually contradictory versions
[67]
The plaintiff was confident that he had a clear recollection of the
events of 3 June 1994 despite the lapse of time. He alleged
that he
was in Masuku Road when he was shot because he was on his way home
from attending extra English lessons. But he furnished
no details of
the teacher Nxumalo except his name. He did not know the street
number of Nxumalo’s house, although he went
there regularly,
nor the school or the night school at which Nxumalo taught, nor
the other pupils whom Nxumalo tutored, although
he testified that he
heard about Nxumalo because he used to give extra lessons. The
plaintiff had not seen Nxumalo from the time
he left school.
[68]
His evidence that he did not take texts or writing material for his
tuition with Nxumalo lacked credibility as it did not sustain
his
allegation that he had tuition on the same day when he had English
lessons at school so that Nxumalo could help him with his
school work
for that day. In particular he was unable to explain satisfactorily
how Nxumalo helped him with his homework on Fridays
if he did not
carry any homework with him. Even on 3 June 1994 which was a Friday,
he did not take the homework with him. According
to the plaintiff,
Nxumalo did not charge for the lessons – but he provided
stationary and other material free of charge to
his students. In my
view the plaintiff’s implausible testimony about his lessons
with Nxumalo was intended to counter the
testimony of Prentis and
Bennett that he was carrying a firearm which he fired at them.
[69]
The plaintiff’s time frame relating to his lesson prior to the
shooting was inconsistent. He initially testified that
he arrived at
Nxumalo’s house after 15h30 and left at approximately 16h40
(because he saw the bus which left at 16h40). Under
cross-examination
he testified that he left home about 15h40 and walked 15 minutes to
Nxumalo’s house, spent an hour with
Nxumalo and then left for
home. However when it was put to him that if his lesson had
been an hour, he would have only left
at 16h55, he responded that
when the bus arrived about 16h40 he knew that he had twenty minutes
and it was almost time to go home.
It was apparent that the plaintiff
was tailoring his testimony.
[70]
The plaintiff’s reason for being on Masuku Road when he was
shot also lacks credibility. He described the route that
took him
along Masuku Road as ‘a shortcut’ which took him straight
to his home. But according to the plaintiff this
‘shortcut’
also took him the same 15 minutes as his walk to Nxumalo. When it was
correctly put to the plaintiff that
the route he followed home was
much longer,
[16]
he responded
that it was a safer route as it was away from the cars, and as he was
tall it only took him 15 minutes. He also reluctantly
admitted that
some sections of the route were uphill. He evaded a direct answer as
to why he had originally alleged that he used
a shorter route home,
merely stating that he lived in this area all his life and did not
want to continue arguing the issue. But
he added that he used the
alternative route when his mother sent him on errands to a house
situated on that route. He used the
straight route to Nxumalo because
his mother watched him and he wanted her to see that he was going for
his lessons. But she had
no reason to keep an eye on him as he was
not forced to attend the tuition because according to the plaintiff,
he voluntarily attended
the lessons to improve his proficiency in
English with his parents’ approval.
[71]
In my view as Nxumalo’s house was allegedly near the police
station and not too far from Masuku Road, the lessons were
an attempt
by the plaintiff to furnish a legitimate reason for his presence in
Masuku Road at the time of the shooting. I am fortified
in my view by
the response of the plaintiff when he was unable to furnish a
reasonable explanation: he stated that he had no comment
and wanted
to move forward. The plaintiff’s explanation was clearly
contrived as he contradicted himself and his testimony
became
increasingly implausible under cross-examination.
[72]
A further anomaly in the plaintiff’s testimony was that he did
not mention any commotion or the gunfire described by
Madlala,
Prentis and Bennett, which led to the intervention by the policemen
and their presence in Masuku Road. Prentis and Bennett
testified that
they attempted to reach the people running alongside the park by
cutting across the park to the intersection and
that the plaintiff
was among these people when he fired at them. The road cleared
rapidly when the shots were exchanged.
[73]
The plaintiff denied any knowledge about a gang fight on the day he
was shot or that the policemen had tried to intercept the
gang. He
stated that he was walking alone on the road when he was stopped by
the occupants of the house when gunshots were heard.
The shots were
fired by the policemen as they ran across the park but he did not
know if they were shooting at him or at other
people who had
disappeared. But he saw no one else on the road either in front of
him or when he faced the police and did not see
what the police were
shooting at. The plaintiff deliberately downplayed the presence of
others on Masuku Road. He initially testified
that ‘People were
running around and making a noise’ – but when asked ‘what
people?’ he responded
‘it was a Friday’. Under
cross-examination, the plaintiff denied that he had said that Masuku
Road was busy; he had
said that Mahlathi Road had many pedestrians.
He had however stated that there were people running on Masuku Road,
and his denial
was clearly intended to sustain his version that he
was alone on Masuku Road when he was shot by the police.
[74]
Madlala however contradicted the plaintiff’s version that he
was alone on Masuku Road when he was shot. He testified
that the
plaintiff was walking with some girls and that the plaintiff was
usually accompanied by girls. He persisted that on his
way to the
shop, he saw the plaintiff with Mathombi – one of the people
who, according to the plaintiff, tried to assist
him after he was
shot.
[75]
Although Madlala started back tracking when the contradictions
between his evidence and that of the plaintiff was put to him,
he did
not retract his evidence that the gunfire commenced prior to the
police running across the park and that the plaintiff was
among the
group of people who ran down Road 14 while the shots were fired. He
also admitted that shots were fired by the Chesterville
gang and the
police. He therefore corroborated the version of the policemen
that they ran through the park to intercept the
crowd that was
running down Road 14 and investigate the source of the gunshots. He
testified that the shop on Road 14 in which
he was making purchases
was closed because of the gunfire, which preceded the gang and police
running down Road 14. He also corroborated
their evidence that the
plaintiff was on Masuku Road among the people who ran down Road 14,
which is a short road that runs alongside
the park and intersects
with Masuku Road and Ngwenya Road. The plaintiff alleged that he had
walked across the park into Masuku
Road and not from Road 14, but
Madlala explained that one had to go via Road 14 to get to the park
or into Masuku Road.
[76]
It is apparent, in my view, that by insisting that he was alone and
that there was no one else on Masuku Road, and alleging
that he did
not walk along Road 14, the plaintiff attempted to distance himself
from the people running down Road 14, which included
members of the
gang who were armed.
[77]
Prentis and Bennett testified that they only fired at the plaintiff
when he fired at them. They both stated that he stopped,
faced them
and shot at them. Prentis testified that he saw the plaintiff
clearly as they were still in an elevated position
and there were no
shadow over him. He was holding what appeared to be a black
semi-automatic hand gun with both hands in front
of him although
Prentiss could not describe the exact position of his hands or his
stance. Prentis heard the shots and saw the
muzzle fire when the
plaintiff fired at them. Bennett corroborated Prentis’s
evidence that they observed from an elevated
position, the plaintiff
turn and fire at them. He also confirmed that there were many people
on the road which was narrow –
about 5-6 metres wide, but he
had a clear view of the suspect, who was carrying ‘an object
which resembled a firearm’
with which he shot at them. Under
cross-examination he described the manner in which the plaintiff
carried the firearm: to his
side, by the handle with the barrel
dangling’. He stated that it was ‘a handgun, but
not a pistol or revolver’.
[78]
Prentis and Bennett also did not agree as to the exact spot where the
plaintiff was standing when he fired at them, but both
described how
the plaintiff fell down when he was shot but he got up and ran before
he disappeared from sight when he went off
the road and that they
found him lying at the bottom of an embankment a distance away from
where he was shot (depicted in Exhibit
B5). Madlala testified that
the plaintiff fell near some steps on Masuku Road, which were not
visible in any of the photographs
in Exhibit B. Madlala identified
the pathway and steps depicted in exhibit B5 as the area in front of
his home; but denied that
the plaintiff had fallen there. He could
not point out where he found the plaintiff on the available
photographs. His evidence
as to where he found the plaintiff was
inconsistent and he wavered under cross-examination. But according to
the plaintiff he had
walked about 20 metres on Masuku Road and then
taken a few steps further; therefore the point at which he rolled
down was visible
on Exhibit B2. Consequently there was no certainty
as to the exact spot where the plaintiff was when he was shot. The
defendant’s
version was that the plaintiff was approximately 50
meters away from the policemen when he was shot. But according to the
plaintiff’s
version, if the police were still 10 meters away in
the park and he was 20 meters into Masuku Road – he was shot at
30 meters.
At that distance no doubt the police would have been able
to observe him fairly closely.
[79]
Although no firearm was recovered at the scene despite extensive
search and despite the discrepancy in the description of the
firearm
by Prentis nor Bennett, contrary to the argument advanced by Mr
Pillemer that these shortcomings are fatal to the defendant’s
version that the plaintiff was armed, I am of the view that their
version is to be preferred over, and is more credible than, that
of
the plaintiff.
[80]
Firstly given the mobility of the scene and the distance between
where the plaintiff was shot and where he was found, the
fact
that he was fleeing and the number of people in the area at the time
of the shooting, the failure to recover the firearm fired
by the
plaintiff is, in my view, not fatal to their version. These
factors would also have contributed to what Prentis and
Bennett were
able to observe while running towards Masuku Road.
[81]
Secondly, the probabilities do not favour the plaintiff’s
version that he was shot without reason as he walked alone
on Masuku
Road. Prentis and Bennett testified that they were investigating the
shooting and the unrest but did not fire any shots
while running
towards Masuku Road. There would have been no reason for either of
them to fire at an innocent civilian walking alone
when their focus
was on the running group, unless there was some catalyst or reason to
draw their attention to him and the cause
them to fire at him. It is
apparent from their evidence that their attention was specifically
drawn to the plaintiff, albeit individually.
They did not shout out
or warn the other, but they both reacted by firing at the same
person. Prentis only observed the plaintiff
shoot and the muzzle
fire. Bennett observed him walking alongside another male and looking
in their direction before firing. In
my view the only reasonable
conclusion is that they focussed on the plaintiff when he turned and
fired at them and they retaliated
by shooting at him.
Further
although no cartridge cases were produced as exhibits during the
trial, both Prentis and Bennett testified that although
the firearm
carried by the plaintiff was not found, cartridge cases were
recovered. Prentis was specific that he recovered 10 -15
9mm
cartridges near where the plaintiff was shot, while Bennett thought
that the cartridges were 9mm. As the policemen were carrying
R5
rifles, the cartridges must have been ejected from a firearm in
proximity to the spot of recovery.
[82]
The conclusion that the plaintiff’s version is not the truth is
further sustained by his inexplicable actions when he
heard the
gunshots behind him. He alleged that he moved to the side of the road
near the grass when the bullets ‘popped’
on the road in
close proximity to him, but when the people on Masuku Road spoke to
him, he stopped, turned around and pointed out
the two policemen who
were running across the park towards them as the source of the
gunshots. He then turned to carry on walking
on the tarred road.
[83]
As gunshots were also not uncommon at that time because the unrest in
the Chesterville community was violent and widespread,
the
plaintiff’s allegation that people made enquiries about the
shooting from a passing pedestrian lacks credibility. It
is further
improbable that in a dangerous situation when bullets are striking in
close proximity, a person will not take instinctively
take cover
because he is responding to questions, as alleged by the plaintiff.
The plaintiff also claimed that he did not take
cover because he was
‘not trained to be a soldier’ and that if he ran he would
have seemed guilty, which is why he
moved to the side. It was common
cause that the crowd of people comprised members of the public,
including women and children,
who were running scared. The question
which arises is, why would the Plaintiff have been singled out as a
target, if he had merely
joined them in fleeing?
[84]
The nature of the plaintiff’s injuries fails to sustain his
version that when he was shot he was facing down Masuku Road
in the
direction he was headed, with his back towards the police. According
to the plaintiff he was shot in 4 places: right rear
upper arm, right
side of left groin, left thigh through to the back, left calf through
the right and exit on the left. However
the injury to the groin is
not described in the pleadings and was mentioned for the first time
by the plaintiff during cross examination.
The plaintiff insisted
that this injury kept him in hospital for a long time but could not
explain how the orthopaedic surgeon
who examined him in October 1994
(see Exhibit A3) did not note the groin injury. The medical report
records that the patient stated
that he sustained 3 injuries: left
calf, left mid-thigh and right arm. However the plaintiff insisted
that he told the doctor that
he sustained 4 gunshot wounds. The
summons in this action specifies 3 injuries. The plaintiff proffered
the following explanations
for the ‘omission of his fourth
injury’: his first file was left in the police station; the
examining doctor and attorney
forgot his instructions; the doctor did
not notice the injury to his groin, none of which was convincing.
[85]
The plaintiff confirmed that he was shot in the arm from the back;
his groin and thigh, from the front and his left calf, from
the left
to the right. According to the plaintiff he was facing down
Masuku Road in the direction he was heading; the police
were behind
him; but he may have faced the police after he was shot, because the
shot in the arm made him fall to his knees and
then turned him left.
However it is unlikely that he could have been shot in his left leg
after he fell down as it was not disputed
that the police were at a
distance of approximately 50 metres when he was shot. Further,
although the plaintiff admitted that 2
shots hit him from the front
he vehemently denied that he faced the police at any time. However he
subsequently admitted that he
saw the police firing the shots. But
immediately thereafter despite his earlier claim of clear
recollection, he suddenly alleged
that he could not remember
everything clearly. It was apparent that he realised too late the
implication of his admission that
he saw the police firing at him viz
that they could not have shot him while he was walking away.
[86]
In response to the proposition that the police would not have fired
at him if he was not facing them he responded that the
police had
automatic firearms which would fire at anything. This led to his
being confronted with his knowledge of firearms, which
he had denied
in his evidence in chief. In response, he first stated that he could
distinguish firearms placed in front of him,
then that he did not
have ‘much knowledge of firearms’ and finally that he had
seen the firearms which the police carried
at the police station.
These responses did not however explain how the plaintiff identified
an automatic firearm if he was totally
ignorant of firearms as he
claimed to be. The plaintiff also described the length of the bullets
for the R5 rife as 5cm, which
was confirmed by Bennett. He alleged
that he noted the number and length of the bullets while lying on the
ground after he was
shot. Yet he also claimed to be in such great
pain that he rejected offers of help, salt and water from members of
the community.
The plaintiff conceded further, that irrespective of
the kind of firearm used by the police, his injuries were related to
the direction
he was facing when shot.
[87]
Although the plaintiff complained that no one helped him after he was
shot, when Madlala attempted to help the plaintiff, the
plaintiff
rejected his help because Madlala was too young and puny at 15 years
of age. This explanation or the failure to explain
why Wandile Thiba
and Mathombi were also unable to help him but left him lying where he
had fallen for 45 minutes leave more questions
than provide answers,
as they could have attracted the attention of the police in order to
get assistance for him. Madlala mentioned
more than three people who
went to where the plaintiff lay.
[88]
Prentis and Bennett on the other hand stated that the plaintiff was
alone when they found him, although members of the community
gathered
later when the plaintiff was lying on the side of the road.
They described how they approached where he had fallen
with caution
because he had been armed but denied that they had reached him 45
minutes later. Prentis estimated that it took four
to five minutes
from the time he shot the plaintiff until he reached him, and Bennett
thought it took about three minutes. It is
in my view, highly
improbable that, despite their cautious approach, they would have
left a suspect lying for so long without attempting
to arrest him or
prevent him from fleeing, especially if he was armed and had shot at
them.
[89]
The plaintiff alleged that Prentis pressed down on his injured leg
with his boot and demanded his firearm, but he did not respond.
This
begs the question as to why the plaintiff did not immediately deny
that he had a firearm. Prentiss however testified that
the plaintiff
did deny that he had a firearm; Bennett confirmed that the plaintiff
denied that he had a firearm to Prentis. According
to the plaintiff,
Prentiss told Madlala to move aside and then searched him and removed
his clothes, while Bennett was keeping
the bystanders away. Bennett
then told members of the community to put the plaintiff and his
clothes on the blanket and take him
up to the road.
[90]
Madlala testified that the policemen went straight to the plaintiff,
and moved everybody away. But he was still able to observe
that one
policeman took off the plaintiff’s clothes. He contradicted the
plaintiff by stating that not all the plaintiff’s
clothes were
stripped off; his pants and shoes were on him but his belt was
unbuckled and the pants were undone. He also contradicted
the
plaintiff’s version when he stated that the plaintiff was
carried in the blanket held on both sides by policemen up the
embankment and placed on the grass near the road.
[91]
However, according to Prentis and Bennett, Bennett remained on the
road, keeping a lookout for other attackers while Prentis
went down
to the plaintiff – there was no one else with him.
Prentis was also very confident that the plaintiff walked
up the
embankment himself and was not carried. Both policemen
denied that Prentis removed the plaintiff’s clothes.
In my view
it is also improbable that in a volatile situation when the tempers
were running high, the two policemen would have
deliberately stripped
and assaulted the plaintiff in the presence of a number of
bystanders. But it is Madlala’s version
that persuades me to
conclude that the plaintiff was not telling the truth about being
stripped at the scene. Further, the plaintiff
testified that before
he left the hospital he was taken to fetch clothes. But he persisted
that he went to court in pyjamas because
his clothes could not be
found.
[92]
The plaintiff also alleged that as he was lying on the ground, he
heard Prentis say that he had run out of bullets and ask
Bennett for
more bullets. Bennett gave him about 10 more bullets. Both
policemen denied this allegation. Bennett was of the
view that
Prentis was always so well armed that he would not have run out of
bullets, especially as he had only fired four or five
shots, which
also accords with their testimony that they did not fire any shots
prior to the plaintiff shooting at them.
[93]
The plaintiff also offered several contradictory versions about what
happened after he was shot. In his evidence in chief he
stated that
he was shot on the side of the road and as he lay on the grass, the
blood from his wounds flowed onto the road.
He alleged that he
was cold and people brought blankets to cover him as he lay on the
side of the road, but under cross-examination
he stated that when he
was taken up to the road in the blanket, and the blanket prevented
the blood from running onto the road.
[94]
The plaintiff alleged that the paramedics were not allowed to assist
him until a primer residue test was conducted and that
Prentis told
him that the sellotape used in the test was evidence that would be
utilised in court as he had been shot for carrying
a firearm. Prentis
on the other hand testified that he was not aware that a primer
residue test had been conducted and that no
test had been performed
on him. In any event, Prentis admitted to shooting the plaintiff. But
Madlala contradicted the plaintiff,
as he stated that the test was
done while the plaintiff was still lying in the yard below the road.
He had not observed anything
that took place at the roadside as his
parents had chased him away. Bennett however testified that a
primer residue test
had been conducted on him but did not know who
else had been tested.
[95]
Although no further evidence about the primer residue test or the
results were produced at the trial, the probabilities are
that a
primer residue test was conducted on the plaintiff. However Madlala’s
version that the test was done while the plaintiff
was lying in the
yard, together with his evidence that the plaintiff was not stripped
completely by the police as alleged by the
plaintiff and the other
contradictions already identified, favour the conclusion that Madlala
did not attend on the plaintiff after
he was shot, although he may
have been in the vicinity of Masuku Road during the incident.
[96]
Bennett testified that when he left the police station a black
policeman, whose name was unknown to him, ran with him and that
this
policeman was present throughout the incident, but did not shoot.
However when he described the events after the shooting
of the
plaintiff, he did not mention the third policeman. Prentis on the
other hand, did not mention any other policeman but Bennett.
However
as he ran ahead of Bennett, he may not have seen the other policeman.
The plaintiff too only mentioned Prentis and Bennett,
and not a third
policemen. Nevertheless, in my view, nothing turns on this
discrepancy.
[97]
Having considered the conspectus of evidence, I am satisfied that the
plaintiff’s evidence lies to be rejected as false
and fraught
with improbabilities, while the testimony of the former policemen was
credible and consistent with the probabilities
of the prevailing
circumstances under which the plaintiff was shot. The defendant has
therefore proved on a balance of probabilities
that the plaintiff did
fire at the police. Given the proximity of the plaintiff to both the
police and members of the public on
the road, I am also satisfied
that they returned fire in self-defence and to avoid the possibility
of anyone else being injured.
I am unable to find that their conduct
was unreasonable or unjustified in the circumstances as there were no
other means to stop
the plaintiff shooting at them.
[98]
In the premises, the requisite jurisdictional facts necessary for an
arrest under
Section 40(1)(a)
have been proved and I find that the arrest of the plaintiff on a
charge of attempted murder was lawful.
Unlawful
Detention
[99]
As the arrest of the plaintiff was lawful, there is nothing to
disturb the conclusion that his subsequent detention was also
lawful.
[100]
The plaintiff testified that when he was taken by ambulance to King
Edward VIII Hospital he was accompanied by Prentis, Mathombi
Biyela
and Wandile Thiba. The police were at the hospital all the
time. Prentis told him that the police were there
because he
had a firearm and had been shot. However Prentis denied that he
accompanied the plaintiff in the ambulance or guarded
him at the
hospital. He had remained at the scene to report on the incident to
his superior and search for the f/a. He had not
seen the plaintiff
again once he left in the ambulance. Bennett also denied that he had
accompanied the plaintiff in the ambulance
or that he had seen him
after the incident. There was no reason for Prentis to lie about
whether he accompanied the plaintiff to
the hospital and kept him
under guard, especially when he admitted that he had arrested the
plaintiff at the scene. Both Prentis
and Bennett also testified that
they had remained at the scene behind to search for the firearm and
report on the incident. Therefore
although the plaintiff was under
guard and advised as to the reason therefor, and Prentis was not
present, the conduct of the police
did not render the arrest or
detention unlawful as the plaintiff was properly apprised of the
reason for the guard. Nor could he
have been taken to court any
earlier than when he was, which was after his discharge from
hospital. He was discharged on Friday
and taken to court on the
Monday. Nor is there reason to find that the defendant
should be held liable for the failure
to produce the relevant
documentation which necessitated the holding of the plaintiff on 20
June 1994.
Malicious
prosecution
[10]
In
Minister of Safety and Security NO v Schubach
the Supreme
Court of Appeal confirmed that the requirements for a successful
claim for malicious prosecution are :
(a)
that the
police set the law in motion (instigated or instituted the
proceedings);
(b)
that the
police acted without reasonable and probable cause;
(c)
that the
police acted with malice (or
animo injuriandi
); and
(d)
that the prosecution has failed.
[17]
[102]
It is not disputed that the police did arrest and detain the
plaintiff and therefore instigated the charge of attempted murder
against him. On the proven facts, it cannot be said that they acted
without reasonable and probable cause in doing so. However
there is
no evidence that they acted with malice or that the prosecution of
the plaintiff failed. In the premises the plaintiff’s
claim for
malicious prosecution must fail.
Costs
[103]
Although there is little chance of recovery from the plaintiff, there
is no reason why costs should not follow the result.
[104]
The failure to order costs against unsuccessful litigants because the
prospects of recovery from them are poor, may also encourage
an
untenable proliferation of frivolous and unfounded suits.
Order
The
Plaintiff’s action is dismissed with costs.
________________________
MOODLEY
J
Counsel
for the Plaintiff:
Adv R Pillemer
Instructed
by:
BELL CHAPLIN & HATHORN ATTORNEYS
121
Clarence Road
Morningside
Durban
4000
Counsel
for the Defendant:
Adv N Bhagwandeen
Instructed
by: STATE ATTORNEY, KWAZULU-NATAL
6
th
Floor
Metlife Building
391 Anton Lembede
Street
Durban
4000
[1]
1991
(1) SA 41(A)
[2]
cf
Minister of Justice and Constitutional Development v Zealand
2007
(2) SACR 401 (SCA)
at
[8]–[10]
[3]
Du
Toit et al Commentary on the
Criminal Procedure Act 5-9
[4
]
Minister
of Correctional Services v Tobani
(2003
(5) SA 126
(E));
[2001] 1 All SA 370
at 371
f
:
So
fundamental is the right to personal liberty that the lawfulness or
otherwise of a person's detention must be objectively
justifiable, regardless . . . even of whether or not he was aware of
the wrongful nature of the detention.
[5]
1986 (3) SA 568
(A) at 589 D-E
[6]
2012
(2) SACR 226 (SCA)
at
[19]
[7]
[2009]
JOL 23662
(SCA):
21
[8]
Minister
of Safety and Security v Van Niekerk
2008
(1) SACR 56
(CC)
at
[20]
[9]
1981(3)SA865(A)
10page
874 B-C
[11]
Page
875 H
[12]
1998
(1) SA 289
(W) at 292J – 293C
[13]
19th
ed at 142
[14]
2003
(1) SA11 SCA at Paragraph [5] at 14I - 15E
[15]
Case
No 3163/2010 PMB
[16]
Exhibit
A1
[17]
(437/13)
[2014] ZASCA 216
(1 December 2014 at para 11)