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2012
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[2012] ZAGPPHC 41
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Makitla v SBV Services (Pty) Ltd and Others (54731/2009) [2012] ZAGPPHC 41 (22 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No: 54731/2009
Date
heard: 08/02/2012
Date
of judgment: 22/02/2012
In
the matter between:
Anthony
Church
Makitla
............................................................................................
PLAINTIFF
and
SBV
Services (Pty)
Ltd
....................................................................................
1st DEFENDANT
Alex
Noko
Shiko
................................................................................................
2nd
DEFENDANT
Mpho
Thomas
Mokoena
....................................................................................
3rd
DEFENDANT
Mxolisi
George
Magagula
..................................................................................
4th
DEFENDANT
Sylvester
...............................................................................................................
5th
DEFENDANT
JUDGMENT
DU
PLESSISJ:
This
action was initially instituted against five defendants. The matter
proceeded to trial. At the end of the plaintiff's case
the fifth
defendant was absolved from the instance. He plays no further part in
the proceedings.
The
plaintiff contends that the second to fourth defendants, acting in
the course and scope of their employment with the first defendant
("SBV") unlawfully caused him humiliation, shock, distress
fear and anxiety. He claims damages in the sum of R988 320.
He does
not pertinently allege fault (negligence or intent) on the part of
the defendants. It is, however, common cause that the
plaintiffs
claim is based on the actio inluriarum. Accordingly, the plaintiff
also had to prove that the defendants committed the
acts complained
of with the intent of injuring the plaintiff's personality rights.
By
agreement the issues were separated such that the trial before this
court proceeded only for the determination of the issues
raised by
paragraphs 1 to 7 of the particulars of claim. In broad terms these
paragraphs relate to what is generally called 'the
merits" of
the claim. The other issues were postponed sine die for later
determination if necessary.
The
plaintiff gave evidence and called Captain Makgoba of the South
African Police Service (SAPS) to testify on his behalf. The
second,
third and fourth defendants gave evidence and the defendants further
called Inspector Van der Westhuizen and a Mr Hattingh
as witnesses.
The latter is a training officer employed by SBV.
There
are differences between the respective witnesses' accounts of the
relevant events. The core facts are not in issue, however.
What
follows is a summary of the core facts. Where material facts are in
dispute, I shall indicate that.
SBV
conducts the business of transporting cash in armoured vehicles. On
11 April 2008 the second defendant ("Shiko") was
the driver
of such an armoured vehicle ("the truck"). The third and
fourth defendants were the crew on the truck. I shall
refer to them
respectively as "Mokoena" and "Magagula". On the
day in question the three defendants had to
transport cash from
Pretoria to Soshanguve/Mabopane where they were to service automatic
teller machines ("ATM's"). From
there they were to
transport cash to Hammanskraai. The erstwhiie fifth defendant was a
bank employee who travelled in the truck
to assist with the servicing
of ATM's.
The
SAPS received information that the truck was to be held up and robbed
on the Zoutpan road to Hammanskraai. A task team of officers
from the
SAPS Crime Intelligence unit was set up. The team, consisting of
about six members were instructed, each in a separate
private car, to
keep the truck under surveillance and to follow it from Pretoria to a
geographical point from where the SAPS Task
Force were to take over
the operation. The police suspected that somebody in the truck might
be cooperating with the would-be robbers.
Accordingly, the
surveillance operation was to be done covertly; the people in the
truck were not to know that they were being
watched and followed.
Each member of the task team was issued with a R5 rifle and a bullet
proof vest. They were instructed also
to carry their handguns and
surveillance equipment such as cameras.
The
plaintiff, a captain in the SAPS and attached to the Crime
Intelligence Unit, was a member of the task team. On the day he drove
a Toyota Runnex.
He
wore a woollen cap referred to as a "beany" and under his
lumber jacket he wore his bullet proof vest. He carried his
handgun
on his waist and the R5 was in the car between the driver's seat and
the door. He had his camera with him.
The
task team kept the truck under surveillance through the Pretoria
central business district but soon lost contact with it in
the
morning traffic. The plaintiff, familiar with that area, volunteered
to proceed to Soshanguve/Mabopane to see if he could find
the truck
servicing ATM's there. Inspector Van der Westhuizen, in command of
the task team, told the plaintiff and another team
member, Captain
Makgoba to proceed to Soshanguve for that purpose and to keep in
contact with the rest of the team.
The
truck went to the Soshanguve Plaza where it served an ATM. From there
it went to a BP filling station for the same purpose.
The
second to fourth defendants testified that they noticed the Runnex
while at the Soshanguve Plaza. While not alarmed yet, they
decided to
be on the lookout for it. At the BP station they saw the Runnex
driving past again. One of the crew members saw that
he was talking
on a cellular telephone. These actions heightened the crew's
suspicion. As the truck proceeded to the next service
point, Shiko
contacted the SBV base, informed them of the situation and asked them
to check the registration number of the Runnex.
The
plaintiff said that he did not go to the Plaza and that the crew
could not have seen him there. He said that he saw the truck
again
for the first time at the BP station. Captain Makgoba also said that
the plaintiff made contract with her telling her that
he had seen the
truck at the BP station. She, however, said that the Plaza is close
to the BP station, and she did not deny that
the plaintiff had been
at the Plaza. The plaintiff also denied that the crew saw him at the
BP station albeit that he saw the truck
there.
Captain
Makgoba said that, when the plaintiff made contact with her, she in
turn contacted Van der Westhuizen who instructed the
task team
members to proceed to where the truck was.
From
the BP station the truck proceeded to the nearby Pick and Pay mail.
The plaintiff went into the parking lot of the mall where
he stopped
in a parking bay. He testified that he saw the truck coming into the
parking lot and proceeding to an ATM behind him.
A short while later
the truck drove past him and as it continued, the plaintiff took a
photograph of the truck. According to the
plaintiff, the truck then
stopped and reversed towards him. In the meantime Captain Makgoba,
who remained in contact with the plaintiff,
had also entered the
parking lot and she parked some distance from where the plaintiff
was. She also saw the truck stopping and
going back towards the
plaintiff. Realising that he had been compromised, she told the
plaintiff, who was still in contact with
her, to withdraw.
Magagula
testified that, as they entered the parking lot, they first drove
through it, as they usually did, to make sure that it
was safe. They
saw the Runnex in the parking lot and decided not to service the ATM
but rather to continue on their route. They
drove past the Runnex,
stopped next to it and Mokoena looked at the driver. Mokoena
confirmed this and said that the plaintiff
was just sitting in the
Runnex drinking water. They decided to drive on. As they did so,
Magagula saw the plaintiff taking a photograph
of them and Mokoena
saw him talking on his cell phone. Magagula alerted the rest of the
crew. Magagula said, and this was later
confirmed by Hattingh, that
they had been trained to regard people taking photographs and talking
on cellular telephones as suspicious.
The crew decided to confront
the plaintiff and Shiko drove around and then stopped the truck next
to but somewhat to the front
of the Runnex.
The
plaintiff testified that, after the truck had stopped, he saw a man
armed with a rifle get out and approach the Runnex. A second
man got
out, also armed, and went and stood in front of the Runnex. The first
man, the plaintiff said, came and stood next to the
driver's door and
ordered the plaintiff to open the window. The man then aggressively
ordered the plaintiff out of the Runnex telling
him to keep his hands
where the man could see them. The plaintiff said that he told the man
(Magagula as it turned out) that he
was a policeman and that he
(plaintiff) was armed with a pistol and a rifle. As the plaintiff got
out of the Runnex, his rifle,
he said, fell out. Magagula picked it
up and told the plaintiff to kneel. At this stage, the plaintiff
said, he opened his jacket
to expose the bullet proof vest. He also
produced his police identity card and his identity book. Magagula
told him to lie down,
facing the ground, and put his foot on the
plaintiffs neck. Makgoba, in broad terms, confirmed the plaintiffs
evidence in this
regard. She, however, had no clear view of events as
the Runnex was between her and where the plaintiff and Magagula were.
Magagulq
said that when he asked the plaintiff why the latter was taking
photos, the plaintiff denied that he had done so. Increasingly
suspicious, Magagula instructed the plaintiff to open the door of the
Runnex keeping his hands where Magagula could see them. When
the
plaintiff got out, Magagula saw the R5 and the plaintiff's pistol.
Magagula confirmed that the plaintiff tried to explain and
said that
he was a policeman. Trained not to accept such explanations at face
value, Magagula told the plaintiff to lie face down.
He denied that
he put his foot on the plaintiff, adding that by so doing he would
have been exposed literally to shooting himself
in the foot. Magagula
confirmed that he saw the plaintiffs police identification but also
said the being robbed by purported police
officers was not uncommon.
He further said that his intention was to have the plaintiffs
explanation verified while the latter
was lying on the ground. He
told Shiko to call the base and to ask them in turn to call the
police. Mokoena, who went and stood
to the front of the Runnex
coniirmed Magagula's evidence, adding that he (Mokoena) took the R5
from the Runnex. He too did not
believe the plaintiffs assertion that
he was a policeman. Shiko said that he had all the while been keeping
the SBV base informed.
it
is not in issue that Shiko then fired a number of shots into the left
tyres of the Runnex.
The
plaintiff's version is that he heard Mokoena shouting "shoot".
Five to seven shots were fired. According to the plaintiff,
he heard
some of the shots hitting the ground around him and he felt pieces of
gravel on his face. Makgoba
saw
that the shots were being fired from the truck. She also saw the
Runnex "going down" and realised that its tyres had
been
shot out.
The
defendants explained the shooting as follows. Mokoena saw a silver
BMW car speeding into the parking lot. He thought that it
was on its
way to assist the plaintiff. It is common, Mokoena said, for BMW's to
be used in cash in transit robberies. Mokoena
alerted Shiko who
immediately drove the truck in a half circle around the Runnex so as
to keep the truck between the BMW and the
Runnex, Mokoena, Magagula
and the plaintiff. At the end of the half circle Shiko turned the
truck so as to stand to the left of
the Runnex, facing in the same
direction. From the truck Shiko fired a number of warning shots into
the tyres of the Runnex. The
BMW turned around and sped out of the
parking lot. Shiko explained, and this was later confirmed by
Hattingh, that he had been
trained, when firing warning shots in a
public place, to aim at an object that would absorb the shots. He
used the left hand tyres
of the Runnex for that purpose. The
defendants denied that the shots were fired in the plaintiff's
direction, pointing out that
Magagula was standing next to the
plaintiff.
In
his evidence the plaintiff denied the existence of the BMW. In cross
examination it was put to the defendants that there was
no BMW. In
response to a request for further particulars for purpose of the
trial the plaintiff, however, pertinently admitted
that one of the
team members, Inspector Maseko drove into the parking lot in a silver
BMW.
It
is not in issue that soon after the shooting SBV representatives and
police from the nearby Rietgat police station arrived on
the scene.
They had been alerted by the SBV base, who had in turn been alerted
by Shiko. Van der Westhuzen also arrived. The plaintiff
was taken to
the Rietgat police station where the situation was sorted out.
The
credibility of witnesses is not central to the issues. There are,
however, a few differences that call for an observation as
to
credibility.
The
plaintiff denied that he ever was at the Soshanguve Plaza and
accordingly that the defendants could have seen him there. The
defendants were adamant that they saw him there for the first time.
In view of later events there is no doubt that at some stage
the
defendants observed the Runnex following them. To the extent
necessary, I prefer the defendants' evidence. Magagula and Mokoena
in
particular were impressive witnesses: They came across as
well-trained men who knew exactly what they were doing and who went
about their business without fuss. I have no hesitation in accepting
Shiko's evidence too but purely on demeanour he was less impressive
than the other two defendants. It is in the context of ail the
evidence improbable that the defendants were lying about the fact
that they saw the Runnex at the Plaza: They simply had no reason to
lie about that. I find, therefore, that the defendants saw
the
plaintiff for the first time at or near the Plaza and before they had
gone to the BP station.
The
plaintiff's denial that the defendants saw him at the BP station
makes no sense: He saw them and there simply is no reason why
they
would not have seen him.
The
plaintiff's evidence that Magagula put his foot on his back is in
view of Magagula's explanation that it would have been dangerous
for
him to do so, improbable. I hold that the plaintiffs evidence in this
regard was a transparent attempt to create an atmosphere
of
callousness on the part of the defendants. Callousness on the part of
the defendants is not borne out by their conduct throughout
the
incident.
In
view of the plaintiffs admission that Maseko drove into the parking
lot with a BMW, his evidence that there was no such event
is untrue.
The
plaintiffs evidence that the shots were fired in his direction is
improbable. Magagula was standing right next to him and Mokoena
was
not far from them. In the circumstances, it is improbable that Shiko
would have fired in that direction. Shiko's actions when
the BMW was
seen are those of a well-trained man who knew exactly what he was
doing. I find it probable that, in accordance with
his training,
Shiiko aimed the shots into the Runnex. it is not in issue that the
left hand tyres of the Runnex had indeed been
shot out.
The
first question is whether the defendants acted unlawfully. What this
court must determine is whether, having regard to our constitutional
norms, public and legal policy require that the defendants be held
liable for their actions on the day (Le Roux and Others v Dey
2011
(3) SA 241
(CC) at 315 para. 122).
The
defendants were engaged in a notoriously dangerous job where
pre-emptive action could mean the difference between life and death.
The plaintiff, in turn was engaged in a lawful activity that entailed
covertly following and watching the truck. As it turned out,
the
second to fourth defendants observed the plaintiff following them,
speaking on his cellular telephone and photographing them.
They did
not know and could not know that he was doing so lawfully. In the
circumstances the plaintiffs actions caused reasonable
suspicion on
the part of the defendants and it called for pre-emptive action. The
entry of the BMW into the parking lot heightened
these suspicions and
the need for swift and effective pre-emptive action.
On
a conspectus of all the evidence I am of the view that the relevant
defendants1 actions constituted an appropriate and reasonable
response to the plaintiffs suspicious conduct coupled with the entry
of the BMW into the parking lot.
Taking
full account thereof that the plaintiff was engaged in lawful work, I
nevertheless conclude that public and legal policy
does not regard it
as reasonable that the defendants be held liable for infringements of
the plaintiffs personality rights. In
this regard it must be borne in
mind that the plaintiff was knowingly, in the public interest,
engaged in dangerous work. In my
view the convictions of society do
not require that he be compensated for having been frightened in the
course of duty.
I
conclude that the defendants did not act unlawfully. Some may reason
that the defendants' actions were not an appropriate reaction
to
lawful but suspicious conduct but rather a reaction to a danger that
did not really exist. Such reasoning will lead thereto
that the
defendants' actions constituted putative self defence and that,
because the plaintiff acted lawfully, the defendants acted
unlawfully. On that basis the defendants can in my view still not be
held liable because the did not act with the requited intent
to
injure the plaintiff. The defendants' actions were aimed at dealing
with a suspicious situation that could, from their point
of view,
have been dangerous to the point of life threatening. Their intent
was to defuse the situation. The evidence shows that
they were not
acting with the intent to injure the plaintiff's personality rights.
I am constrained to add, in view of the dangerous
and probably
thankless work that the second to fourth defendants do, that they
went about their business effectively and with commendable
accuracy
and constraint.
In
the result the following order is made:
The
plaintiffs claim is dismissed with costs.
B.R.
du Plessis
Judge
of the High Court
On
Behalf of the Plaintiff: K.P. Seabi & Asociates
Suite
306-310, 3rd Floor Peoples Bank Building Pretoria
Adv.
S. Masipa
On
behalf of the Defendants: Savage Jooste & Adams inc.
141
Boshoff Street Nieuw Muckleneuk Pretoria
Adv.
B. Boot