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[2014] ZAGPPHC 311
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Mlota v Minister of Police (65577/12) [2014] ZAGPPHC 311 (26 May 2014)
IN
THE GAUTENG HIGH COURT, PRETORIA
(
REPUBLIC
OF SOUTH AFRICA
)
Case
No.: 65577/12
Date:
26 May 2014
Not
reportable
Not
of interest to other judges
In
the matter between:
KLEINBOOI
MATTHEWS
MLOTA
...................................................................................
Applicant
AND
MINISTER
OF
POLICE
....................................................................................................
Respondent
JUDGMENT
KEIGHTLEY, AJ
INTRODUCTION
[1]
The plaintiff in this matter, Mr Kleinbooi Matthews Mlota, claims
damages from the defendant, the Minister of Police, for the
plaintiff's alleged wrongful and unlawful assault by a member of the
South African police service.
[2]
By agreement between the parties the merits and quantum have been
separated. I am required to rule only on the merits of the
claim.
[3]
The plaintiff’s particulars of claim, as amended, state that he
was “
wrongfully and unlawfully assaulted by a member of the
South African Police Service, whose identity is to the plaintiff
unknown,
in that he shot the plaintiff, inter alia, in his face
.”
[4]
In his plea, as amended, the defendant denied that the plaintiff had
been wrongfully and unlawfully assaulted as averred, and
pleaded as
follows in this regard:
[4.1]
“
Defendant pleads that from the 13
th
of November 2009 to the 14
th
of November
2009 there were riotous protests by residents from the Kwa Thema
residential area and that the Public Order Police
unit (here in after
referred to as “POPS”) and other units were deployed to
the area.
[4.2]
Defendant pleads the roads in the area were blocked with
burning tyres and rocks and private and state property was damaged
and
destroy it by the riotous public.
[4.3]
Defendant pleads that on 14 November 2009, whilst on patrol, a
police vehicle carrying members of POPS came under attack from
members
of the public who threw stones and petrol bombs at said
police vehicle.
[4.4]
Defendant pleads that the POPS members' lives were in danger
and in an attempt to contain the situation, to protect themselves and
the state vehicle and to restore order in the area, the POPS members
fired rubber bullets into the protesting crowd.
[4.5]
Defendant pleads that plaintiff was amongst the protesting
crowd, and was observed with injuries.
[4.6]
Defendant bears no knowledge of how the plaintiff sustained
his injuries.
”
[5]
The defendant further admitted that the plaintiff suffered injuries
to his face, but pleaded that he had no knowledge of the
nature,
extent and cause of the injuries.
[6]
As I will indicate in more detail when I discuss the evidence led at
the trial, the factual case presented by the plaintiff
is that he was
shot by rubber bullets fired by an unknown member of the police while
the plaintiff was sitting in the yard of a
spaza shop situated at the
corner of September and Masibeni Streets in Kwa Thema on the
afternoon of 14 November 2009. He avers
that he was not part of any
protest action, and that he was sitting with a friend, Mr Dubula,
enjoying drinks when the incident
occurred.
[7]
The plaintiff's case is that two members of the police chased a group
of protesters into the yard where he and Mr Dubula were
sitting.
The police officers were on foot at the time. Shortly
thereafter, one of the police officers took up a position
at a pillar
at the entrance to the yard, took aim at the plaintiff with his
firearm and fired at him.
[8]
Therefore, the plaintiff's case is that he was deliberately and
intentionally, rather than accidentally, negligently or recklessly,
shot by a member of the South African police service. The
plaintiff confirmed this in his evidence before the court.
[9]
On the pleadings and on the basis of the evidence led at the trial,
the following facts are common cause:
[9.1]
The incident in question occurred on 14 November 2009 at the corner
of September and Masibeni Streets, Kwa Thema, where the
spaza shop is
situated.
[9.2]
Service delivery protests took place in Extensions Two and Three, and
an area known as Barcelona in Kwa Thema over the two-day
period from
13 to 14 November 2009.
[9.3]
Units from the Public Order Policing Unit (“POPS”) were
deployed to the area to deal with the unrest.
[9.4]
During the course of these activities the police fired rubber bullets
at protestors.
[9.5]
Plaintiff was shot by rubber bullets and sustained four injuries,
including injuries to his right eye, which was later medically
removed as a result of the injury.
[10]
The exact circumstances of the shooting are placed in dispute. The
defendant denies that any member of the police fired shots
from
outside the armoured police vehicle, commonly known as a Nyala, at
the time and place in question. Accordingly, the defendant
disputes
the plaintiff's version that he was deliberately shot by a police
member who was on foot and outside the Nyala at the
time.
THE
ISSUES
[11]
It is
trite, as counsel for the plaintiff submitted, that every
infringement of bodily integrity is
prima
facie
unlawful and once the infringement is proved, the onus rests on the
wrongdoer to prove a ground of justification.
[1]
[12]
Our law draws a distinction between the overall onus or burden of
proof, and the evidentiary burden. The evidentiary
burden is
often loosely, and confusingly, also referred to as the “onus
of proof”. The frequently cited dictum
of the Appellate
Division in
Pillay v Krishna
explains the distinction as
follows:
“ …
in
my opinion, the only correct use of the word ‘onus’ is
that which I believe to be its true and original sense (cf
D 31.22)
namely the
duty
which is cast upon the particular litigant, in order to be
successful, of finally satisfying the court that he is entitled
to
succeed on his claim
,
or defence, as the case may be, and not in the sense merely of his
duty
to adduce evidence to combat a prima facie case
made by his opponent.
”
[2]
(emphasis added)
[13]
Only
the first of these concepts represents the onus in its true
sense.
[3]
In this sense, the onus determines which party will fail on a given
issue if, after hearing all of the evidence, the court
is left in
doubt.
[4]
In other words, it is the duty resting on a particular litigant of
finally satisfying the court that he or she is entitled
to succeed in
his or her claim, or defence.
[5]
This “overall onus” never shifts from the party on whom
it originally rested. On the other hand, the burden
of adducing
evidence in rebuttal may shift during the course of the case
depending on the proof furnished by the one party or the
other.
[6]
The onus, in its true sense, is determined by the pleadings and the
substantive law.
[14]
In
Mabaso
v Felix
[7]
the
Appellate Division laid down the general principles that apply in
cases involving delicts affecting the bodily integrity of
the
claimant, and in circumstances where the defendant raises a defence
or ground of justification, such as self-defence.
The court
held that in such cases, ordinarily the defendant bears the overall
onus of proving his or her justification for the
otherwise unlawful
conduct. It is not for the plaintiff (who, in a delictual
action, normally bears the overall onus of proof)
to negative the
defendant’s ground of justification, unless the particular
pleadings in the case place this onus on the plaintiff.
[8]
The court cited Wigmore
[9]
in this regard as follows:
“ …
so
that the plaintiff is put to prove merely the
nature of his
harm
, and the
defendant’s share in causing
it
; and the
other circumstances
,
which, if they existed leave him without a claim
,
are put upon the
defendant to prove
.
”
(emphasis added)
[15]
The
well-known and long-established principles of pleading are
encapsulated in Rule 18(4) of the Uniform Rules of Court.
[10]
The Rule requires every pleading to contain “
a
concise statement of the material facts upon which the pleader relies
for his claim, defence or answe
r”.
It is the pleadings that define the issues so as to enable the other
party to know what case he or she is required
to meet,
[11]
and parties are thus limited to their pleadings; a party cannot
direct the attention of the other party to one issue in the pleadings
and then attempt to canvass another at the trial.
[12]
A court is required to determine what the real and substantial issues
are between the parties and to decide the case on these
issues.
[13]
[16]
Applying these principles to the present case, it is evident that the
real issue raised by the plaintiff in his case is that
he was not
only intentionally, but also deliberately shot by an unknown member
of the police. While the particulars of claim
aver merely a
“
wrongful and unlawful assault
”, without
specifying the deliberate nature of the assault, throughout the
trial, plaintiff’s case has rested on a deliberate
shooting by
the police. In his testimony to the court, the plaintiff
confirmed that his case was that he was deliberately
shot by a police
officer while sitting in the yard of the spaza shop.
[17]
The
plaintiff did not plead, in the alternative, that he was negligently
or recklessly shot by the police.
[14]
Nor did the plaintiff place any evidence before the court to sustain
an alternative claim of this nature. The plaintiff’s
evidence was directed at establishing that a police officer stood at
the entrance to the yard, aimed directly at him, and shot
him with
rubber bullets.
[18] In the
circumstances, this is the case that the defendant was called on to
meet.
[19]
The defendant’s plea is not in the form of a confession and
avoidance; he does not admit the shooting and plead self-defence
or
any other ground of justification. On the contrary, the
defendant denies the alleged wrongful and unlawful assault by
shooting as pleaded in the particulars of claim. The defendant
pleads that he has no knowledge of how the plaintiff sustained
the
injuries. Despite these denials, the defendant does plead facts
that point in the direction of a justification for the
shooting.
[20]
It strikes me that the pleadings by both parties are not as clear as
perhaps they could have been. However, from the
pleadings,
taken together with the manner in which the plaintiff’s case
was presented in court, it is evident that the substantial
issue in
dispute between the parties in this particular case is whether or not
the plaintiff was, as he claims, deliberately shot
by a police
officer.
[21]
This is the case pleaded and advanced by the plaintiff, and he bears
the onus of satisfying the court on this issue.
Indeed, counsel
for the plaintiff accepted in his submissions to the court that if I
am unable, on the evidence, to accept the
plaintiff’s version
of events in this regard, then that will be the end of the matter,
and I must rule against him.
[22]
It seems to me that in light of the real and substantive issue in
dispute in this case, the question of whether any ground
of
justification exists has little material role to play. This is
because:
[22.1]
In the first instance, and for the reasons set out above, if, on the
evidence, the plaintiff is unable to show that he was
deliberately
shot by the police, then he will fail in meeting the onus he bears of
establishing the nature of his harm and the
role of the defendant in
causing it.
[22.2]
On the other hand, if I find that the plaintiff was deliberately shot
by the police, then there can be no question of any
legal
justification for the defendant’s action. In other words,
if plaintiff’s version of events is established,
then it is
self-evident that police conduct of that nature and in those
circumstances cannot be justified on any legal grounds.
Counsel
for the defendant accepted as much.
[23]
In the circumstances, in my view, the key issue in this case is
whether the evidence establishes that plaintiff was injured
by a
police officer, who deliberately aimed and fired rubber bullets at
him. However, to the extent that the question of
justification
by the defendant for the plaintiff’s injury may be relevant, I
deal with this aspect later in my judgment.
EVIDENCE
FOR THE PLAINTIFF
[24]
The plaintiff, Mr Mlota, testified first. The relevant aspects of his
evidence may be summarised as follows.
[25]
The plaintiff was at work on the morning of 14 November 2009. It was
a Saturday and he took a taxi back to Kwa Thema at approximately
1
pm. He went to pick up his friend, Mr Dubula, who also stays in
September Street, and they proceeded to the spaza shop owned
by a Mr
Madikizela. The purpose of them going to the shop was to enjoy some
drinks together during the afternoon. The plaintiff
had with him a
bottle of Klipdrift brandy that he had purchased while he was at
work. The spaza shop is situated on the corner
of September and
Masibeni Street. The entrance to the yard of the shop is on September
Street. There is a wide gate at the entrance
flanked by cement brick
pillars and a wall on each side. At the time of the incident a shack
stood behind the wall and next to
the spaza shop in the yard.
[26]
The plaintiff and Mr Dubula borrowed two glasses from Mr Madikizela
on their arrival and proceeded to sit on the two in plastic
crates in
front of the shack, but behind the wall of the yard, to enjoy their
drinks. The gate to the yard was open. The plaintiff
sat with his
back to the front wall of the shack, facing September Street, while
Mr Dubula sat opposite, facing the plaintiff,
with his back to
September Street. They were positioned towards the right-hand side of
the shack, assuming that one is looking
towards the shack from
September Street.
[27]
After they had been enjoying their drinks for approximately 30
minutes, the plaintiff noticed some, what he described as “boys”,
running into the yard through the open gate. They ran into the gap
between the shop. They were pursued by one police officer on
foot,
whereafter a second police officer arrived on the scene. The second
police officer took up a position at the left hand pillar
of the open
gateway. According to the plaintiff this police officer cocked his
weapon, pointed it towards the plaintiff, who was
still sitting on
his crate at the time, and shot at him. The plaintiff told the court
that this police officer did not say anything
before he fired the
shots. He was in police uniform with a police cap, but the plaintiff
was unable to recognise him. The plaintiff
refused assistance from
members of POPS who wanted to take him to an ambulance as this would
have entailed him climbing very high
up into a Nyala. Instead, a
constable Zulu, from the Kwa Thema police station later assisted him
by taking him to an ambulance,
which transported him to hospital.
[28]
The plaintiff testified that he was never part of any protest action.
He indicated that he lived in a section of the area that
enjoys full
municipal services and therefore there was no need for him to join in
any service delivery protests. He was adamant
that he was seated on
his crate when he was shot and sustained his injuries.
[29]
There are a number of aspects of the plaintiff's evidence that
warrant specific attention. The first is that the plaintiff
confirmed
under cross-examination that he was not shot by accident, and that
the police officer in question deliberately fired
rubber bullets at
him. The plaintiff also denied that he was shot by rubber bullets
fired from a Nyala. He testified that the police
officer was on foot
and not in a vehicle when he shot him. He also told the court that he
knew nothing about the police firing
from inside a Nyala to disperse
a crowd of protesters. In fact, the plaintiff said in his evidence
that he did not hear any residents
singing, toy-toying, or protesting
at the time of the incident. He heard no shots being fired prior to
the police officer shooting
him and he did not hear the sound of any
petrol bombs exploding. The plaintiff said that he did not see a
crowd of protesters numbering
approximately 1000 as claimed by the
defendant. He testified that at the time of the incident the
situation in the area was quiet
and whatever earlier protests there
may have been had abated. He also told the court that there was no
Nyala present when he was
shot, and that he had only seen such a
vehicle at the scene earlier, when it was putting out some
smouldering tyres. He testified
that he had seen a few people
standing around watching this.
[30]
The final aspect of the plaintiff's evidence that bears highlighting
is his response to the written statement made under oath
to the
police by Mr Dubula. I will deal with this statement in more detail
later. Suffice to say at this stage that the statement
gives a very
different version as to how the shooting occurred. Under
cross-examination, when faced with this written statement,
the
plaintiff testified that the version contained in this statement was
incorrect.
[31]
On the plaintiff's version, therefore, he was deliberately shot by a
police officer who was in pursuit of a group of youngsters
in
circumstances where no protest action was taking place in the
vicinity at the time, and in circumstances where he could not
have
been mistaken for being one of the people whom the police were
pursuing.
[32]
The second witness to testify for the plaintiff was the shop owner,
Mr Madikizela. Mr Madikizela confirmed the plaintiff's
version to the
effect that he and Mr Dubula had spent some time in the yard of the
shop drinking on the day in question.
He also confirmed the
plaintiff's version as to where he and Mr Dubula had been seated at
the time of the incident. Mr Madikizela
was adamant in his testimony
that he had seen the police officer shooting the plaintiff. However,
his version of the incident differs
in certain material respects from
the version put forward by the plaintiff.
[33]
In the first instance, Mr Madikizela recalled in his testimony that
the plaintiff and Mr Dubula had arrived at his shop at
approximately
11 am on 14 November 2009. On his version they had been
drinking for some 2 to 3 hours before the shooting
incident occurred.
When pressed on this issue in cross-examination Mr Madikizela
indicated that he had definitely witnessed the
shooting incident and
that is only difficulty was one of timing. As to the shooting
incident itself, Mr Madikizela's testimony
was to the effect that the
police officer who fired the shot was standing at the right-hand
pillar of the gateway at the time.
This is different to the version
of both the plaintiff, and as I will indicate below, Mr Dubula, who
in their testimony placed
the shooter at the left-hand pillar. This
is a significant disparity in that Mr Madikizela's version would have
placed the police
officer within only a few metres from the plaintiff
when he allegedly fired the shots.
[34]
In addition, Mr Madikizela testified that this police officer was not
alone at the time of the shooting. He told the court
that a second
police officer was standing with the first police officer, and also
holding his gun in an aiming position, when the
first officer fired
at the plaintiff. The plaintiff made no mention in his testimony of
two police officers taking aim at him.
On his evidence the policeman
who shot him was on his own at the time, the other police officer
having disappeared in pursuit of
the people who had run into the
yard.
[35]
On Mr Madikizela's evidence protest action was ongoing at the time
that the plaintiff was shot. He testified that shortly before
the
incident the police were shooting at protesters further down the
street. Mr Madikizela said that he had seen the protesters
in
Masibeni Street. He did not count how many protesters they were but
that he saw five or six. He also said under cross-examination
that he
does not know the number of protesters involved because he was busy
in his shop at the time. He testified that he heard
shots being fired
further away and these shots then advanced towards the intersection
between September and Masibeni streets. According
to Mr Madikizela,
at the time that he heard these shots the plaintiff and Mr Dubula
were already in the yard of his shop drinking.
Mr Madikizela told the
court that when he came out onto the verandah of his shop (which
overlooks the area where the plaintiff
was sitting), he saw
protesters running away from the police, who were shooting at them.
It is then that some of the protesters
ran into the yard of the shop,
followed by the two police officers. He witnessed the shooting of the
plaintiff from the verandah.
[36]
It is clear from Mr Madikizela's version of events that at the time
the plaintiff was shot there was considerable protest action
taking
place in the near vicinity, and that the people who fled into the
yard had been dispersed as a result of action taken against
the
protestors by the police. It is difficult to reconcile this
with the plaintiff’s version that he heard and saw
no protest
action at the time that he was shot.
[37]
The third witness to testify for the plaintiff was Mr Dubula.
Mr Dubula confirmed the plaintiff's version to the effect
that he and
plaintiff we seated on crates in front of the shack next to the shop
on the day in question. He confirmed that the
plaintiff was seated
facing September Street and he, Mr Dubula, was sitting opposite him
with his back to the street. He told the
court that although he was
not certain of the time at which they arrived at the shop, he
estimated it was around 2 pm and that
the plaintiff was shot
approximately 30 minutes later.
[38]
In his evidence in chief Mr Dubula initially described the incident
as having occurred when two or three people fled from the
police into
the yard of the shop. He told the court that the police arrived from
the street and started shooting. Some of the police
entered the yard
in pursuit of the fleeing protesters. Under cross-examination he was
questioned as to whether he had heard gunshots
outside of the yard
prior to the plaintiff being shot. He answered that he had. Later
under cross-examination he contradicted this
evidence by stating that
the only gunshots he heard with those directed at the plaintiff
inside the yard. It was impossible for
Mr Dubula satisfactorily to
reconcile these two contradictory versions of events during his
testimony.
[39]
Unfortunately, there were further material contradictions in the
evidence given by Mr Dubula. Critically, he first stated that
he had
not
seen the police officer firing at the plaintiff, as the
police officer was behind him and out of his line of sight. Later in
his
testimony, however, he contradicted himself by saying that he had
indeed seen the police officer shooting the plaintiff and that
the
police officer had been standing at the left-hand pillar of the
gateway at the time. (Incidentally, this is also where the
plaintiff
placed the shooter in is evidence). He tried to explain the
contradiction in his own evidence by saying that although
the police
officer was behind him he wasn't directly behind him at the time.
[40]
Perhaps the most damning contradiction in Mr Dubula's testimony
relates to a written statement that he made under oath to the
police
approximately one month after the shooting incident. In this
statement Mr Dubula described what happened as follows:
“
During
that time while we were drinking, there were people, residents of Ext
3 and Barcelona section busy toy-toying, singing and
chanting for
service delivery. Suddenly a police truck emerged and people started
running away in different direction. The police
in the truck started
shooting at the people using rubber bullets and
unfortunately
my friend whom I was sitting with was mistakenly shot by the said
police as they were trying to disperse
the unruly crowd.
”
(emphasis added)
[41]
It is evident that the version given in Mr Dubula's written statement
is materially at odds with the version he gave under
oath in court,
and with the version given by the plaintiff. In his written statement
he describes the shooting as having been accidental,
and as having
occurred when police in a vehicle were shooting at protesters. This
cannot be reconciled with his oral testimony
in which he stated that
he had seen a police officer on foot deliberately shooting at the
plaintiff while he and the plaintiff
were sitting in the yard of the
shop enjoying their afternoon drinks.
[42]
Of even greater curiosity is the fact that when pressed under
cross-examination Mr Dubula did not dispute the veracity of what
was
recorded in his written statement. In fact, he expressly stated that
the paragraph in question was a correct statement of the
events as
told to the police and that the police had been correctly recorded
it. He denied, however, that he had come to give his
evidence at the
trial with the deliberate intention of misleading the court.
[43]
In other respects Mr Dubula also gave a version of events that
differed from that given by the plaintiff. For example, Mr Dubula
testified that when he and the plaintiff arrived at the shop he had
seen a Nyala vehicle parked on the side of the road near the
intersection between September and Masibeni streets, and that police
officers were busy putting out a fire in the street on foot.
Both the
plaintiff and Mr Madikizela gave evidence that the vehicle itself was
being used to put out the fire. Mr Dubula
also testified that
when the police came into the yard they kicked in two doors of the
shack. The plaintiff made no mention of
anything like this having
occurred in his testimony.
THE
APPLICATION FOR ABSOLUTION AND THE DEFENDANT’S EVIDENCE
[44]
At the close of the plaintiff's case it was apparent to counsel for
both parties that there were difficulties with the evidence
presented
by the plaintiff. Counsel for the defendant put to each of the
plaintiff’s witnesses that their versions were so
contradictory
that they could only have been fabricated in an attempt falsely to
bolster plaintiff’s claim for damages.
Counsel for the
plaintiff professed not to be surprised when counsel for the
defendant applied for absolution from the instance
at the close of
the plaintiff's case. Nonetheless, he opposed the application, and
for reasons I gave separately, I refused absolution.
[45]
Defendant then led the evidence of Constable Rikhotso. He testified
that he had been deployed as a member of the POPS in Kwa
Thema on the
14 November 2009. From 12h30 on that day to 16h30 they were busy
dealing with violent protest action taking place
in Extensions Two
and Three, as well as the Barcelona section of the township.
The POPS was called in because the situation
had got out of hand, and
there was a need to restore order. On an assessment of the
situation, the decision was made that
they should use the armoured
Nyala vehicles, rather than ordinary “soft top” vehicles.
[46]
The protest action was accompanied on 14 November 2009 by looting of
foreign owned shops and individuals being robbed.
From 12h30
onwards, the police drove all around the trouble spots trying to
restore order.
[47]
According to Constable Rikhotso, at approximately 16h30 they came
across a group of about 1000 protesters at the intersection
of
September and Masibeni streets. At this stage there were around 10
members of the unit in one Nyala as the other Nyala had broken
down.
[48]
Constable Rikhotso testified that the Nyala initially drove through
the crowd of protesters who were situated along the sides
of the
road. Constable Rikhotso indicated that at this stage the crowd were
burning tyres and throwing some stones, but that that
the level of
violence was not yet significant. Thereafter, they did a U-turn in
the vehicle on the playground in September Street
and drove back
towards the crowd. The protesters had now moved into the road and the
level of violence had increased. According
to Constable Rikhotso the
protesters were throwing petrol bombs as well as stones. He told the
court that even though the Nyala
is an armoured vehicle, petrol bombs
create a realistic danger for the occupants. The Nyala was
driving towards the protesters
who were in front of the vehicle. In
order to disperse the crowd and to quell the violence the police
started shooting rubber bullet
rounds from inside the Nyala towards
the crowd.
[49]
Constable Rikhotso told the court that the crowds dispersed in a
matter of seconds after the rubber bullet rounds were fired.
He
stated that the police immediately ceased fire once the crowd
dispersed. Constable Rikhotso saw a group of protesters
running
into the yard of the shop. He stated that he did not see anyone
shooting at the protesters when they fled into the yard,
although he
conceded that it was possible that somebody in the vehicle may have
fired shots in the direction of those who fled.
According to
Constable Rikhotso, from inside the Nyala he saw a man bleeding. The
man was sitting in front of the shack in the
yard of the shop. When
the Nyala stopped, Constable Rikhotso was the first member to alight
from the vehicle. He told the Constable
of the unit about the
bleeding man and he escorted the Constable to him. He confirms that
the bleeding man in question was the
plaintiff.
[50]
Constable Rikhotso did concede under cross–examination, albeit
somewhat reluctantly, that the rubber bullet that injured
the
plaintiff must have been fired by the police. However, he was
adamant in his testimony that the police fired no shots
once the
crowd dispersed. He was also adamant that the police only fired
from inside the Nyala, and that no shots were fired
by the police
after they alighted from the Nyala.
[51]
The defendant elected not to call any other witnesses in support of
the defence.
HAS
THE PLAINTIFF ESTABLISHED HIS CASE?
[52]
There can be no question that the plaintiff was injured by rubber
bullets fired by the police. This is plain from the
evidence,
not least of which is the fact that only the police were using rubber
bullets on the day, and at the time and place in
question.
[53]
However, for reasons that I have set out earlier, even if I accept
this as a proven fact, it is not sufficient for plaintiff
to meet the
onus resting on him. As I have indicated, the key issue remains
whether the evidence establishes that, on the
probabilities, the
rubber bullets were deliberately fired by a police officer, who aimed
and shot at the plaintiff from the entrance
to the yard.
[54]
In my discussion of the evidence presented by the witnesses on behalf
of the plaintiff, I have already pointed to various inconsistences
in
their testimonies, both when compared to the testimony of the other
witnesses, as well as internal inconsistences in the testimony
of
each witness.
[55]
Counsel for the plaintiff acknowledged that there were credibility
issues and other difficulties with the plaintiff’s
witnesses.
However, he submitted that these were not material. He
submitted that if one paid specific attention to
the evidence of the
plaintiff, in particular, as well as the evidence of the defendant,
there was sufficient credible evidence
for me to find that the
plaintiff had established his case.
[56]
I am unable to agree with counsel for the plaintiff’s
submissions in this regard for various reasons.
[57]
In the first place, the plaintiff’s evidence itself was by no
means problem-free. Most materially, he testified
that there
was no protest action taking place in September and Masibeni streets
at the time. This is patently at odds with
all the other
evidence presented to the court, including the evidence of the other
two witnesses for the plaintiff. This
blatant untruth
fundamentally taints the overall credibility of the plaintiff and his
version of events.
[58]
Furthermore, the plaintiff’s version does not offer any
explanation for why a police officer would have aimed and fired
at
the plaintiff deliberately while the plaintiff was simply sitting and
relaxing in the yard. The plaintiff confirmed that
he could not
have been mistaken for one of the youths that had fled from the
police into the yard. He also confirmed that
the police officer
was not under any danger when he fired at the plaintiff. When
counsel for the defendant put to the plaintiff
that his version
depicted very strange behaviour on the part of the police officer
concerned, the plaintiff simply responded by
saying that this is what
happened.
[59]
In order for me to accept plaintiff’ version as probable, I
would have to accept that a police officer deliberately fired
rubber
bullets at the plaintiff at close range for no explicable reason.
I have difficulty regarding this as credible or
probable or probable.
[60]
Apart from the plaintiff’s version, there are also major
problems of credibility and inconsistency in the evidence of
the two
remaining witnesses for the plaintiff. I have already
highlighted these difficulties in summarising their evidence.
Although Mr Madikizela claims to have witnessed the incident, in his
version the police officer was standing at a completely different
spot when he fired at the plaintiff. In addition, on his
testimony there were two police officers aiming at the plaintiff,
although only one fired. This is materially at odds with what
the plaintiff testified. In the circumstances, I cannot
accept
Mr Madikizela’s evidence as credible. I do not believe
that he saw the plaintiff being deliberately shot by
a police officer
standing at the entrance to the yard.
[61]
As far as Mr Dubula is concerned, his testimony was characterized by
a number of material inconsistencies: he contradicted
his own
evidence that he had not seen a police officer shooting the
plaintiff, by later asserting that he had witnessed the shooting;
most significantly, he did not dispute that his written version given
under oath to the police, which indicated that the plaintiff
had been
shot accidentally, was correct. It is not possible for me to
accord any credibility to Mr Dubula’s evidence.
As with
Mr Madikizela, I do not believe that he saw the plaintiff being shot
deliberately by a police officer standing at the entrance
to the
yard.
[62]
If I add to the mix, as counsel for the plaintiff suggested I should
do, the evidence of the defendant, this still does not
assist the
plaintiff’ case. On the evidence of Constable Rikhotso,
the police fired rubber bullets at the intersection
of September and
Masibeni streets at protesting crowds. There were at least 10
police officers in the Nyala vehicle firing
in different directions
from inside the vehicle through “shooting holes” at the
time. They used rubber rounds,
with each “bullet”
consisting of two rubber balls being fired in one shot. The
rubber rounds were fired from
pump action shot guns. As I
indicated earlier, Constable Rikhotso testified that the police did
not fire any shots from outside
the Nyala. He was not seriously
challenged on these material aspects of his evidence under
cross-examinaiton.
[63]
In my view, the credible aspects of plaintiff’s evidence, taken
together with the evidence for the defendant do not support
the
plaintiff’s case that he was deliberately shot by a police
officer standing at the entrance to the yard where the plaintiff
was
sitting. On the contrary, it seems to me that the evidence
indicates that in all likelihood, the plaintiff was either
part of
the protest action, or he was caught in the crossfire of the police
firing on the protestors.
[64]
In view of the fact that plaintiff’s case rests on a deliberate
shooting by the police, I am unable to find that he has
succeeded in
establishing the case that he pleaded.
[65]
One aspect of the case remains to be considered. It is this:
despite the failings in the plaintiff’s case, does
the fact
that the evidence indicates that it was a rubber bullet fired by
police (albeit in circumstances different to those averred
by the
plaintiff) nonetheless provide plaintiff with a basis for succeeding
in his claim?
[66]
I have already indicated that, in my view, plaintiff’s onus
depends on the case that he pleaded and if he fails to establish
his
case on the probabilities, then he should be found not to have
satisfied the onus resting on him. As counsel for the
plaintiff
conceded, this should be the end of the matter. In the
circumstances, the question of whether the defendant has
established
a ground of justification does not arise.
[67]
However, even if I am wrong in this, and even if the facts I have
found to have been established can be held to give rise to
an onus on
the part of the defendant to justify its shooting of rubber bullets,
I am satisfied that the defendant has done so in
this case.
[68]
The following evidence of Constable Rikhotso is relevant in this
regard:
[68.1] there was
widespread protest action at the time in Kwa Thema involving violent
conduct;
[68.2] the POPS was
dispatched to restore order and Constable Rikhotso was part of the
unit that went into the area on 14 November
2009;
[68.3] the violent
conduct included burning tyres; throwing stones; petrol bombing of
police vehicles; looting of foreign shops;
private individuals being
robbed; and burning of vehicles;
[68.4] a vehicle was
burned at the intersection of September and Masibeni streets the
previous day, and on the 14 November the other
activities listed
above continued;
[68.5] at the time
of the incident, a crowd of approximately 1000 protestors had
gathered in the intersection, they were throwing
stones, burning
tyres and throwing petrol bombs at the police in the Nyala;
[68.6] even though
the police were in an armoured vehicle, petrol bombs pose a threat to
the safety of the occupants in light of
the fact that they can cause
the fuel in the vehicle to catch fire;
[68.7] the police in
the Nyala fired rubber bullets into the crowd of protestors to
disperse them in an effort to restore order;
[68.8] the police
were only issued with rubber bullet rounds, as this was the maximum
force deemed to be appropriate for the situation
they were facing;
[68.9] the rubber
bullets were fired with a view to dispersing the protestors and
breaking up the violent activities only;
[68.10] the police
also fired to avert the danger they were in from the petrol bombs;
[68.11] the firing
of the rubber bullet rounds from the Nyala at the intersection of
September and Masibeni streets happened very
quickly, it was all over
in a matter of seconds;
[68.12] the police
ceased firing immediately the crowd dispersed;
[68.13] no shots
were fired after the police members alighted from the Nyala;
[68.14] Constable
Rikhotso did not see any shots being fired in pursuit of any fleeing
protestors, although he conceded that it
would have been possible for
someone to fire without Constable Rikhotso seeing him or her doing
so;
[68.15] he testified
that the police action took place in accordance with police training
and it was the only solution to deal with
the situation that the
police were facing;
[68.16] Constable
Rikhotso did not see the plaintiff in the crowd, but he saw him after
the firing ceased (while Constable Rikhotso
was still in the Nyala),
when the plaintiff was observed sitting in front of the shack in the
yard of the spaza shop.
[69]
Most of this evidence was not placed in dispute during the course of
cross-examination. In particular, the existence
of a violent
protest by a large group of protestors in the intersection at the
time that the plaintiff was shot was not disputed
(despite plaintiff
himself testifying that all was quiet at the time, counsel for the
plaintiff conceded that this version should
be rejected and that it
had to be accepted that there was protest action at the time).
The evidence that the police only
fired from inside the Nyala was
also not placed in dispute, nor was it placed in dispute that it was
necessary and appropriate
to use rubber bullet rounds to deal with
the situation.
[70]
Counsel for the plaintiff cross-examined Constable Rikhotso on his
testimony that rubber bullets were only used to disperse
the crowds,
and not to arrest people. There were entries in the police
occurrence book for that day to indicate that arrests
had been made
using rubber bullets. However, in re-examination, Constable
Rikhotso confirmed that the police had not made
any arrests as a
result of the incident at the intersection of September and Masibeni
streets. It is also common cause that
the plaintiff was never
arrested.
[71]
In my view, the evidence presented to court demonstrates that the
police fired rubber bullets from inside the Nyala vehicle
to disperse
violent protestors, that they did so for a short period of time, and
that they ceased firing once the objective of
dispersing the crowd
was achieved. The police acted in pursuance of their duty to
protect the community from violent action
of this nature, and in
order to defend themselves from the threat of petrol bombs. The
evidence also indicates that the actions
of the police were
proportionate to the danger posed by the protestors to the community
and to the police.
[72]
The most probable explanation for the plaintiff’s injury on the
evidence is that either he was part of the protest action,
or,
alternatively he had the misfortune of being caught in the crossfire
of the volley of rubber rounds fired by the police.
In view of
the circumstances that existed at the time, I am satisfied that the
defendant has demonstrated that the police’s
conduct in firing
the rubber rounds, and hence the injury resulting therefrom, was
justified and hence was not wrongful or unlawful.
[73]
For all of the above reasons, I find that the plaintiff has failed to
establish that he was injured as a result of an unlawful
and wrongful
assault by a police officer. Unfortunately, this means that his
claim must fail.
ORDER
[74]
I make the following order:
[74.1]The
plaintiff’s claim is dismissed.
[74.2]The plaintiff
is directed to pay the defendant’s cost.
_________________________
R
M KEIGHTLEY
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE OF HEARING :
13-15 MAY 2014
DATE OF JUDGMENT :
26 MAY 2014
PLAINTIFF’S
COUNSEL : J H VDB LUBBE
INSTRUCTED B : NEIL
DIPPENAAR ATTORNEYS
DEFENDANT’S
COUNSEL : S J COETZEE
INSTRUCTED BY :
STATE ATTORNEY PRETORIA
[1]
Noor
Moghamat Isaacs v Centre Guards CC
[2004] 1 All SA 221
(C) at para 7, citing
Mabaso
v Felix
1981
(3) SA 865
(A) 873E – 874E;
Malahe
and Others v Minister of Safety and Security and Others
[1998] ZASCA 64
;
1999
(1) SA 528
(SCA) 533J – 534A, 540F – H.
[2]
1946 AD 946
AD 952
[3]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 543
(A) at 378-9
[4]
Hoffman & Paizes
The
South African Law of Evidence
(2nd) p128-130
[5]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
,
above
[6]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
,
above, citing
Brand
v Minister of Justice
1959 (4) SA 712
(A) at 715 and
Marine
and Trade Insurance Co Ltd v Van der Schyff
1972 (3) SA 543
(A) at 548
[7]
Above
[8]
At 873F-874B
[9]
Wigmore
Evidence
(3ed) vol IX para 2486, cited at 873C-D
[10]
Mabaso
v Felix
,
above at 874H-875A
[11]
Benson
and Simpson v Robinson
1917 WLD 126
and the other cases cited in Farlam
et
a
l
Erasmus
Superior Court Practice
(Rev Service 43) B1-129 n9
[12]
Imprefed
v (Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A) at 107G-H
[13]
Robinson
v Randfontein Estates GM Co Ltd
1925 AD 173
at 198;
Shill
v Milner
1937 AD 101
at 105
[14]
Unlike the situation in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
,
above.