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[2012] ZAFSHC 34
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Phatlane v Minister of Safety and Security (06/2008) [2012] ZAFSHC 34 (1 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 06/2008
In
the matter between:
REGINALD
EDGAR KELLY PHATLANE
….........................
PLAINTIFF
and
THE
MINISTER OF SAFETY AND SECURITY
…............
DEFENDANT
_____________________________________________________
CORAM:
NAIDOO, AJ
_____________________________________________________
HEARD ON:
22, 23, 25 November 2011
16 -19 January 2012
DELIVERED ON:
1 MARCH 2012
_____________________________________________________
NAIDOO AJ
[1] The plaintiff sued
the defendant, inter alia, for damages in the amount of R509 300,
arising out of injuries he suffered as
a result of alleged assaults
upon him by certain policemen in the course and scope of their
employment with the defendant. The
plaintiff was represented by Mr M
Steenkamp and the defendant was represented by Mr SJ Reinders. The
defendant did not object to
the plaintiff’s application in
terms of Rule 33(4) of the Uniform Rules of Court for separation of
the merits and quantum
and the application was granted. The matter
accordingly proceeded only on the merits. In addition, the defendant
did not object
to the plaintiff’s application for amendment of
his Particulars of Claim, which were amended as follows:
1.1 Paragraph 5.1 –
the substitution of “sewe (7)” by “ses (6)”,
and “drie (3)” by “twee
(2)”, so that it now
reads
“
Inspekteur
De La Hunt die Eiser ses(6) maal geskiet het, te wete twee (2) skote
in die Eiser se linkerbeen and vier (4) skote in
die Eiser se
regterbeen”
1.2 The deletion, in its
entirety, of paragraph 5.2, which reads
“
Daarna
die Eiser aan sy klere by die kombuisdeur van die Eiser se woning uit
te sleep; en”
1.3 Paragraphs 9.1 and
9.4.1 – the substitution of “sewe (7)” by “ses
(6)”. Paragraph 9.1 now reads
“
Reeds
gelede mediese uitgawes:
Die
Eiser is gehospitaliseer (in ‘n Staatshospitaal) en is mediese
ingrepe aldaar op hom uitgevoer ten einde hom vernaam to
behandelvir
die ses (6) skietwonde. Eiser het R500.00 betaal ten aansien van die
tersaaklike behandeling en vorder die Eiser derhalwe
die tersaaklike
bedrag onder hierdie eishoof.”
Paragraph 9.4.1 now reads
“
Eiser
het geweldige pyn en ongemak verduur as gevolg van die polisie se
onregmatige optrede en spesifiek die feit dat hy ses (6)
maal met ‘n
handwapen geskiet is”
The defendant also
requested, with no objection from the plaintiff, that paragraph 6 of
its Plea be amended to reflect that it admits
paragraph 10 of the
plaintiff’s Particulars of Claim, which reads
“
Eiser
het behoorlik kennis gegee aan die Verweereder ooreenkomstig en uit
hoofde van die bepalings en voorskrifte van Wet 40 van
2002, het die
voorgeskrewe tydperke wat moet verstryk alvorens dagvaarding kan
uitgereik kan word, reeds verstryk. Eiser het die
bepalings van Wet
40 van 2002 ten volle nagekom”
The amendments were
accordingly granted.
[2] The plaintiff called
six witnesses and the defendant called four. It is necessary for me
to traverse the evidence in some detail,
as various aspects of the
respective versions of the plaintiff and defendant contain material
differences, which will become relevant
when evaluating the totality
of
evidence in order to decide the
probabilities of this case.
The plaintiff’s
version is that on the evening of 10 March 2006 he attended a party
at the home of his brother, where he consumed
a moderate amount of
liquor. He was expected to report for duty as a bus driver at 3h00
the next morning, hence he did not consume
too much liquor. He left
the party with his wife, three year old daughter and sister, and
returned home at about 22h00. On his
arrival, he found that his
younger son was not present, and in asking his older son where his
brother was, the plaintiff shook
the boy by the shoulders. This
resulted in an argument between him and his wife, causing her to
leave the home with the older son,
and leaving the plaintiff with his
three year old daughter.
[3] A while later he was
awakened by two police officers, accompanied by his wife, who
demanded the child. He handed over the child
to his wife, and one of
the police officers, a White male whom the plaintiff identified as
Constable Bernardo (Bernardo), said
to him in Afrikaans “Jy is
verspot and parmantig”. [According to the dictionary “verspot”
means “foolish”,
and “parmantig” means,
amongst other things, “cocky, cheeky, impertinent, impudent,
obstreperous, brash, insolent”
(Bilingual Dictionary, Bosman,
Van der Merwe and Hiemstra, 8
th
Edition)]. The policeman
thereafter slapped the plaintiff who retaliated by slapping the
policeman back and saying he is not “verspot”
and
“parmantig”, resulting in a fist fight breaking out
between the two. The other policeman, an African male who was
identified as Reservist Sergeant Karedi Mahapela (Mahapela), joined
in the fray and the fight then moved to the kitchen, where
the
plaintiff picked up a knife and was swinging his arms (seemingly
wildly and randomly). Prior to this, they fought in his bedroom.
[4] When they moved to
the kitchen, Mahapela left the kitchen and went outside. Bernardo was
retreating as the plaintiff swung the
knife in front of the officer.
When Bernardo reached the door, he fell outside the door. Mahapela
was shouting at him (the plaintiff).
The plaintiff also went outside,
but thereafter went back into his house, the officers left, and he
went to sleep in the children’s
bedroom. I will refer to this
as the first incident
[5] Some time later, he
was awakened by a loud noise which sounded like gunshots and got out
of bed, but felt what he describes
as “powerless”. He
went into the kitchen but fell immediately as he could not walk
further. Then he noticed blood on
himself but did not know where it
came from. The shooting seemed to have stopped and he tried to crawl
outside. He remembers seeing
a White police officer whom he said was
called De La Hunt (De la Hunt), and the latter was accompanied by
Mahapela. De la Hunt
placed his foot on the plaintiff’s neck as
he crawled outside. The plaintiff called out to his sister to bring
him some water
but did not get any. He then lost consciousness and
was later taken to hospital. I will refer to this as the second
incident.
[6] The evidence of the
plaintiff’s wife, Maria Phatlane, was the same as that of
plaintiff up to the point when she left
the house after the argument
with the plaintiff. She later realised that the plaintiff will leave
home around 2 o’clock in
the morning for work and her young
daughter would be left alone. She did not want to go back to the
house as she thought the argument
would continue so she went to the
house of Mrs Tsubela, but met her on the street and requested her to
call the police to accompany
her to fetch her daughter. She waited on
the street for the police, who arrived and accompanied her into the
house. The police
requested the plaintiff to hand the child to his
wife which he did. Mrs Phatlane’s evidence is that at that
point she left
the room and the house, but that the police were still
in the house. She did not hear or see what happened thereafter. She
went
to the house of Mrs Tsubela where she intended to spend the
night. A while later, she was informed by her sister-in-law that the
plaintiff had been shot. At this point, she returned to her home.
[7] Aaron Mphore
(Mphore), the plaintiff’s neighbour, testified that he was
awakened by the sound of people shouting at each
other. He saw many
people outside at the plaintiff’s premises. He also saw
Mahapela and the plaintiff shouting at each other.
He noticed that
Bernardo was there as well, and the latter shouted to Mahapela that
they must leave. Mahapela responded to the
second request of Bernardo
to leave, but not before threatening that they would return to shoot
the plaintiff.
[8] A few minutes later
Mahapela returned with another White policeman whom the witness
identified as De la Hunt . Mphore followed
them into the plaintiff’s
yard and requested permission from De la Hunt to speak to the
plaintiff, but was denied such permission
and was asked to leave. He
did not leave but followed them to the house and stood outside the
kitchen door as they entered the
house. He noticed De la Hunt opening
the door of a bedroom which was dark, looking in for a few seconds
and thereafter began shooting
into the room, saying “you are
fighting with the police”. He fired four shots and with each
shot he repeated these
words. After the fourth shot was fired, Mphore
heard someone screaming in agony. Thereafter De la Hunt and Mahapela
retreated.
Mphore left and went back into his own yard but could
still see the plaintiff’s kitchen door. He noticed Mahapela
leave first
and De la Hunt followed closing the door. A few seconds
later the latter opened the door and fired two more shots, after
which
Mphore heard a voice from inside the house asking “Minah”,
one of the other witnesses for the plaintiff, for help. De
la Hunt
then ordered the person to come out. He came crawling out, and while
doing so, De la Hunt grabbed him by his clothes and
pulled him out of
the house and thereafter placed his foot on this person’s neck.
This person was the plaintiff, and De la
Hunt again said “you
are fighting with the police”.
[9] . Jeminah Molete
(Molete) is the plaintiff’s sister who left the party with him
and his wife. A while after the plaintiff
dropped her off at her
home, his son Tebogo, arrived and informed her that his parents were
fighting and told her the reason for
the fight. She went to the
plaintiff’s house and asked him what was going on and he said
there was no problem. She thereafter
left his home and a short while
later encountered his wife on the street. The plaintiff’s wife
repeated the story told by
the plaintiff’s son and informed
this witness that she had called the police to accompany her into the
house to fetch her
daughter. While they were on the street the police
arrived and accompanied the plaintiff’s wife into the house,
while Molete
stood at the kitchen door. The plaintiff’s wife
exited the house with her daughter and Molete remained at the house.
She
then saw Bernardo slap the plaintiff and say that he is
“parmantig”. The plaintiff slapped Bernardo back, saying
he
is not “parmantig”. At this point Molete left the
house and (presumably) stood outside. She observed Mahapela leave
the
house and then Bernardo. The latter hit the bottom door and fell. He
then went to the police vehicle and called for Mahapela,
who was at
this stage engaged in a quarrel with the plaintiff. When Mahapela
returned to the police vehicle, he said that they
are coming back to
shoot the plaintiff.
[10] As regards the
second incident, Molete testified that the police arrived a few
minutes after the first incident had ended,
and the police officers
this time were Mahapela and De la Hunt. Mphore approached them and
asked for permission to speak to the
plaintiff but was refused
permission. They asked him to leave but he followed them to the
house. She then heard gunshots in the
house. After a while Mahapela
and De la Hunt came out of the house. De la Hunt opened the door and
fired two shots into the kitchen.
Some time later the plaintiff came
crawling out of the kitchen but De la Hunt placed his foot on the
plaintiff’s neck. The
plaintiff asked Molete for water but De
la Hunt prevented her from entering the house. The plaintiff was
later taken to hospital
by ambulance.
[11] Doctor Leon Wagner,
a Forensic Pathologist of many years’ experience in pathology,
including ballistics, testified that
he examined the plaintiff on 7
December 2011. He was furnished with the report of the doctor who had
initially attended to the
plaintiff, but had no photographs of the
plaintiff’s wounds that were of any help in compiling his
report. He consequently
had to rely on the healed scars to make the
conclusions he did. From the medical reports, and from the scars, he
was unable to
determine the entry and exit wounds. He was able to say
that no bones were shattered, no vital organs were hit and no nerves
were
damaged when the plaintiff was shot. He determined that all the
wounds were to the front of the plaintiff’s legs, as there
were
no scars at the back of plaintiff’s legs. Doctor Wagner
testified that many possibilities existed as to positions of
the
plaintiff and the shooter at the time of the shooting, for example
the plaintiff could have been standing and the shooter lying
on the
ground, or both lying on the ground. It would appear that they were
in close proximity to each other, and his view was that
the shooter
was to the side of the plaintiff at the time of the shooting. Another
aspect that the doctor testified about was the
ability of the
plaintiff to move even after being shot. As a result of no bony
structures or nerves being damaged, the plaintiff
would have been
able to continue walking and remain standing. He would also not have
felt pain immediately, the delay in the sensation
of pain being
determined by the influence of alcohol and the level of aggression
being shown by the plaintiff.
[12] Matthias Johannes
Willemse, the plaintiff’s attorney, was the final witness for
the plaintiff. He testified that apart
from this matter, he also
represented the plaintiff in a criminal matter arising from this
incident, where the plaintiff was charged
with attempted murder. He
tried to obtain a copy of the record in that matter but has been
unsuccessful in doing so. He also testified
that three weeks before
the commencement of this trial, he took the photographs in Exhibit A,
except photographs (c) and (d) on
page 2 of Exhibit A, which were
brought to him by the plaintiff.
[13] The defendant’s
first witness, Inspector De la Hunt, was involved in the second
incident between the plaintiff and the
police. He received a call at
the charge office alleging that the plaintiff had threatened to
murder his wife and child with a
knife. He relayed the message to
Constable Bernardo and Reservist Sergeant Mahapelo who were on patrol
duty and requested them
to investigate. A few minutes later he
received a radio report from Bernardo that he had been attacked with
a knife and requested
that an ambulance be called. When he arrived at
the police station he was bleeding profusely from his head and was
taken to hospital.
Mahapelo had a stab wound on his hand and a
scratch extending from his collar bone to his chest.
[14] De la Hunt went to
the plaintiff’s house, accompanied by Mahapelo. He entered the
house after receiving no response to
his to his calls and
announcement of the presence of the police. The kitchen light was on.
In a room in front of him, he saw a
figure spring up and stand in the
doorway. As he approached he saw the person holding a knife in his
raised hand and this person,
who turned out to be the plaintiff,
started stabbing at him. He fired a shot at the plaintiff’s
legs as he retreated, but
the plaintiff kept advancing. As he reached
the kitchen door he fired another shot at the plaintiff and
thereafter fell backwards
out of the door and landed on his buttocks.
The plaintiff was advancing rapidly, so he fired three shots in quick
succession as
he sat on the ground. The plaintiff then turned around
and went back into the house. De la Hunt went back to the kitchen and
saw
the plaintiff on the kitchen floor bleeding profusely. He called
the ambulance and the plaintiff was taken to hospital.
[15] Sergeant Bernardo
testified that while he was on patrol duty with Mahapelo, he received
a call from De la Hunt instructing
them to investigate a case of
Domestic Violence. On arrival, they were met by the plaintiff’s
wife who was the complainant.
A few minutes later they entered the
house with the assistance of the complainant, and found the plaintiff
and the child in a bedroom.
They requested him to release the child
to her mother, which he did. He was wearing a bullet proof vest and
was armed with his
firearm, which was holstered. Thereafter the
plaintiff took a knife out of a pair of trousers and started to stab
at the two policemen.
They retreated and Bernardo used pepper spray
on the plaintiff but this had no effect on him. He thereafter stabbed
Bernardo on
the forehead, which caused him to bleed profusely.
Thereafter Bernardo jumped backwards out of the kitchen door but he
fell on
his back outside the house. He went to the vehicle and he and
Mahapelo went back to the police station.
[16] Constable Karedi
Mahapela was present when both the first and second incidents took
place at the plaintiff’s house. As
regards the first incident,
he corroborated Bernardo in all material respects regarding the
manner in which the first incident
took place. Mahapela confirmed
that he and Bernardo were stabbed by the plaintiff but they did not
retaliate, even though both
were armed. They left and a few minutes
later he returned with De la Hunt. Once again they called out to the
plaintiff, introduced
themselves but got no response. They entered
the house and as they approached the bedroom the plaintiff appeared
and started to
attack them with a knife. They retreated, but he kept
advancing and De la Hunt fired at the plaintiff, who stabbed at De la
Hunt.
They retreated towards the door with the plaintiff advancing.
De la Hunt fired another shot and as he exited the kitchen door he
fell. Shots continued to be fired but he did not know how many as he
was concentrating on the plaintiff who also came out of the
house.
Mahapela sprayed him with pepper spray and shortly thereafter the
plaintiff turned and went back into the house. They noticed
that the
plaintiff was injured and called an ambulance.
[17] Inspector James
Morane Moeketsi (Moeketsi), the investigating officer was called to
the scene after the plaintiff was removed
to hospital. He found five
spent bullet cartridges on the premises. One was in the bedroom, one
in the kitchen and three outside
the house. He pointed out various
aspects of the scene to the photographer who took the photos
reflected in Exhibit C. One of the
cartridges was pointed out to him
by De la Hunt and he found the rest. In cross examination, he said a
knife was recovered but
he could not remember where on the premises.
It was booked in as an exhibit, but he did not have the details with
him.
[18] As indicated, the
versions of the plaintiff and defendant are materially different with
regard to many important aspects. With
regard to the first incident,
it seems that the plaintiff offered no resistance when the police
requested him to hand the child
to his wife, and it is Bernardo’s
version that the plaintiff was cooperative, and when the child left
the room, the plaintiff,
for no rhyme or reason, suddenly set upon
him and Mahapela with a knife. They retreated but the plaintiff
continued to advance
and stabbed both the police officials during the
scuffle. Bernardo denies that there was any verbal or physical
exchange between
him and the plaintiff prior to the plaintiff
stabbing him. The injuries to the policemen are not denied by the
plaintiff. It is
also common cause that he succeeded in driving two
armed policemen, wearing bullet proof vests, out of his house. On the
plaintiff’s
version, he was stabbing randomly and cannot say
whether he struck the policemen.
[19] To my mind, his
actions are indicative of aggressive, possibly angry behaviour. Even
if the slapping and punching incident
did occur a few minutes earlier
as he alleges (during which he appears to have retaliated blow for
blow), the subsequent action
of the plaintiff in arming himself with
a knife, indicates not only a lack of respect for the officers of the
law but an intention
to assert himself in a way designed to “teach
them a lesson”. This is clear from his evidence that they
slapped him
in his own house instead of reprimanding him, which seems
to imply that he was justified in attacking them the way he did. I
also
find it improbable that he would not know if he struck both
policemen, especially Bernardo, who was bleeding profusely. The light
in the kitchen was switched on, yet the plaintiff says he did not see
Bernardo bleeding. The fact that the policemen did not, there
and
then, draw their firearms seems somewhat strange, but it does serve
to corroborate their version that, apart from the fact
that the
incident happened very quickly, it was not their intention to hurt
the plaintiff as they were intent on using minimum
force against him.
This is particularly so in the light of the evidence elicited in the
cross examination of Bernardo that, in
his experience, it is not
uncommon for police officials to be attacked and the police are
trained to expect this.
[20] The impression one
gains from the evidence of the plaintiff’s witnesses, overall,
is that they were intent on downplaying
the severity of the
plaintiff’s actions and highlighting the actions of the police
during the first and second incidents,
in that they seemed quite
unobservant of happenings that may have cast the plaintiff in a bad
light. An example of this for instance,
is that the plaintiff, his
wife and Molete persisted in referring to the altercation between the
plaintiff and his wife as an argument
and steadfastly refused to
admit that it must have been quite serious for the plaintiff’s
wife to have left the house and
sought the assistance of the police
to fetch her daughter. When viewed against the evidence of the police
that they received a
complaint of Domestic Violence from one Mrs
Tsubela where the suspect was threatening to kill a woman and child
with a knife (which
is denied by the plaintiff), it is surprising
that Mrs Tsubela was not called to confirm the plaintiff’s
version that she
did not in fact so inform the police. Another
example is where Molete alleges that she followed the police to the
house during
the first incident specifically to see what was going on
with her brother, but inexplicably left the house just after she
allegedly
saw the Bernardo and plaintiff slap each other. According
to the plaintiff, it was shortly after this that the “fight”
between him and the policemen intensified. Molete conveniently,
therefore, did not witness the wild and aggressive behaviour of
the
plaintiff during which both policemen were injured, Bernardo
seriously so. When the policeman left the premises after the first
incident Molete and Mphore were in close proximity. It would have
been difficult to miss the sight of Bernardo bleeding profusely,
yet
both denied witnessing this. It may be argued that Mphore did not
make a statement to the police at the time of the incidents
and it is
possible that due to the great time lapse before he testified, he may
have forgotten this observation. No such explanation
was tendered in
respect of Molete and the cumulative effect of this denial on the
part of these two witnesses is that they were
not being truthful. If
the policemen were the aggressors during the first incident, it is
strange that they did no more than retreat,
in spite of being armed.
Taking into account the versions of the plaintiff and the defendant,
it is more probable that the plaintiff
was the aggressor and did not
act in self defence during the first incident.
[21] The respective
versions, especially with regard to the manner in which the second
incident unfolded are materially different.
The plaintiff himself
does not know how he sustained the gunshot wounds that he did. This
has to be inferred from the evidence
of Mphore who alleges he was at
the kitchen door and saw De la Hunt fire four shots into a darkened
bedroom and after the fourth
shot, he heard an anguished scream from
someone in the bedroom. There is no evidence to suggest that there
was anyone else in the
house except the plaintiff when the police
entered for the second time, so this scream could only have come from
the plaintiff.
This aspect of Mphore’s evidence is difficult to
reconcile with the evidence of the plaintiff who says he was awakened
by
the sound of gunshots and he thereafter stumbled into the kitchen
where he fell. He did not say that he screamed, or even that he
felt
pain which could have caused him to scream. This would suggest that
either Mphore was mistaken about hearing a scream, or
that the
plaintiff was not shot while he was asleep. The lack of any evidence
regarding the bed linen which may have had bullet
holes or blood
stains is also telling with regard to the probability of the
plaintiff’s version. If De la Hunt did indeed
shoot into a
darkened bedroom, it is indeed a wonder that the plaintiff suffered
injuries only to the front of his legs. My impression
of Mphore’s
evidence with regard to the shooting is that he places himself on the
scene merely to lend credibility to the
plaintiff’s version. He
also appears to be selective in his recollection of certain important
aspects in the manner in which
the incidents unfolded, for example
his failure to notice that Bernardo was bleeding. Other aspects of
his evidence, one of which
I will deal with later in this judgment,
are also problematic and reinforce the impression that his evidence
is contrived.
[22] The defendant’s
version is that the plaintiff was aggressive and unstoppable during
the second incident, having sprung
upon the policemen with a knife.
The plaintiff denies this but does not dispute that De La Hunt’s
shirt was torn in two places,
which De la Hunt says was sustained
when the plaintiff stabbed at him with the knife. No evidence was
offered by the plaintiff
to gainsay this aspect of De la Hunt’s
evidence.
[23] Mr Steenkamp
introduced into evidence the statement that Mahapela made shortly
after the incident and pointed out that what
he said in that
statement differed from his
viva voce
evidence and in fact
contradicted De la Hunt’s evidence. Mahapela had stated (in the
statement) that De La Hunt first fired
a warning shot when the
plaintiff attacked them and two more shots thereafter. This differed
from his testimony in court, during
which Mahapela said he was not
sure of how many shots were fired in total because he was
concentrating on the plaintiff.
[24] In this regard the
evidence of Moeketsi becomes relevant. He said that a bullet point
was found in the bedroom, one cartridge
was found in the kitchen,
while the other three were found outside the house, indicating that
at least five shots were fired. This
accords with De la Hunt’s
evidence. Mr Steenkamp suggested that the bullet point was found too
far into the room to lend
support to De la Hunt’s version that
he fired the first shot while he was outside the bedroom. From the
evidence led, this
was clearly a very small house, where the kitchen
was estimated to be two metres by two metres. It is also clear that a
few steps
from the kitchen would lead one very close to the bedroom,
or conversely, a few steps from the bedroom would lead one into the
kitchen. In the absence of evidence to the contrary, I do not agree
that the position in which the bullet point was found renders
improbable De la Hunt’s evidence with regard to his position
when he fired at the plaintiff.
[25] The incident
undoubtedly unfolded very rapidly and the policemen found themselves
under attack. Another factor to be taken
into account was that all
witnesses (both for the plaintiff and defendant) testified some six
years after the incidents happened.
It is to be expected that there
would be some lapses in memory. It also cannot be expected that the
statements submitted to the
police would contain every detail
pertinent to the matter. It is usually the case that such statements
would broadly record the
events in question. Another aspect that has
been well canvassed in our case law is that no two witnesses will
observe and process
an incident in the same way. Much depends on the
circumstances prevailing at the time, so it is to be expected that
there will
be some differences in their testimony. I cannot find that
the discrepancies in the evidence of Mahapela and De la Hunt are
fatal
to the defendant’s case. De la Hunt was the shooter and
would be in a better position to say how many shots he fired, where,
when and in what order they were fired. Even if Mahapela is wrong on
this aspect, there is other acceptable evidence, namely that
of
Moeketsi, to confirm De la Hunt’s version, making the latter’s
version acceptable. The rest of Mahapela’s
evidence cannot,
therefore, simply be rejected. It appears that his evidence in all
other respects is reliable and may accepted.
See
Johannes v South
West Transport (Pty) Ltd Namibia High Court 1994(1) SA 200 (NM) at
202 C-G
[26] The task of the
court is to assess the probabilities of each version based on the
evidence presented in court. It is common
cause that all the wounds
sustained by the plaintiff were to the front of his legs. Dr Wagner’s
evidence is that no major
organs, no nerves or bony structures were
hit. As indicated he was not able to say which scars represented
entry wounds and which
represented exit wounds. Therefore much of
what he said with regard to the position of the plaintiff and that of
the shooter is
conjecture, and this would have to be assessed from
the evidence as a whole. Dr Wagner’s evidence is, however,
significant
with regard to the impact of these wounds on the
plaintiff. He said that because nerves and bones were not injured,
the plaintiff
may not have felt pain immediately and would still have
been able to walk. His further evidence was that if the plaintiff was
aggressive,
and alcohol contributed to the aggression, the plaintiff
would continue to act aggressively and mechanically, in spite of
being
shot. De la Hunt testified that in spite of his having fired
shots at the plaintiff inside the house, the latter continued to
advance,
as result of which he fired three further shots at him when
he was outside the house. Mahapela’s evidence was that he
sprayed
pepper spray at the plaintiff as he was advancing on the
policemen, and this too had no effect on him. In the light of Dr
Wagner’s
evidence, it appears to me entirely probable that the
plaintiff was in fact aggressively advancing on the police officials,
knife
in hand, in the manner that they describe.
[27] Exhibit C, depicting
the positions where the spent cartridges were found by Moeketsi, was
introduced into evidence after De
la Hunt testified, so it is
accepted that, for that reason, this aspect was not canvassed with
him. When Moeketsi testified, the
defence sought an admission from
him that the integrity of the crime scene was compromised prior to
his arrival and therefore the
positions in which he found the
cartridges were not their original positions. Moeketsi could take the
matter no further than to
concede this point. This was canvassed with
Mahapela, who testified that after the plaintiff was shot, neither
he, De la Hunt nor
any other person entered the house. In the absence
of any other evidence to the contrary, I accept that the positions in
which
Moeketsi found the various cartridges is where they originally
came to rest, and that they were not tampered with.
[28] Having said that, I
am in agreement with Mr Steenkamp that Moeketsi’s
investigation, or his recordal of what he did,
was shoddy. The
discovery of the knife was an important piece of evidence, yet he
either did not record where it was found or could
not remember. He
was also justifiably criticised by Mr Steenkamp for not having made a
greater attempt to ascertain if there were
bullet markings on the
walls, especially outside the house. This would also have assisted in
assessing where De la Hunt was at
the time the various shots were
fired and may well have afforded corroboration for either his version
or that of the plaintiff.
In the circumstances, I will have to decide
the matter on the evidence that is before the court in this regard.
[29] I turn to another
aspect of Mphore’s evidence that appears not to be true. The
plaintiff amended his particulars of claim
at the commencement of the
trial by, inter alia, deleting paragraph 5.2 in its entirety. In that
paragraph, the plaintiff had alleged
that he was dragged out of his
kitchen door by his clothes. Mphore testified that this is what he
saw, and when confronted with
the amendment to the particulars of
claim, he insisted that he did in fact witness the plaintiff being
dragged out of the kitchen
by his clothes. The overall impression of
this witness is that he is not reliable, firstly because he appears
to have placed himself
on the scene to afford an eye witness account
of the shooting of the plaintiff and secondly because he insists on
witnessing something
the plaintiff himself excised from his
particulars of claim. It is difficult to avoid the perception that
this witness was schooled
as to the plaintiff’s version, but
was, unfortunately for him, not told of the amendment to the summons.
It is entirely probable
that he was present with others outside, in
the vicinity of the plaintiff’s house, but I am constrained to
accept that he
witnessed the events that happened inside the
plaintiff’s house or that they happened as he says they did.
[30] The plaintiff bears
the onus to prove, on a balance of probabilities, that his version is
more natural and plausible than that
of the defendant. He must
convince the court to find in his favour. See
Jordaan
v Bloemfontein Transitional Local Authority and Another 2004(3) SA
371 (SCA)
where Farlam J cited with approval
the case of
Govan v Skidmore 1952(1) SA 732
(N),
in which it was held that the
court may
“
by
balancing probabilities select a conclusion which seems to be the
more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion be not the only
reasonable one”
The
Govan
case was also cited with approval in
Ocean
Accident and Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(A)
.In
the case of
National Employers’ General
Insurance Co Ltd v Jagers 1984(4) SA 437 (EC)
Ecksteen
AJP, in deciding whether the plaintiff has discharged the
onus
of proof, held at p440, that
“The estimate
of the credibility of a witness will therefore be inextricably bound
up with a consideration of the probabilities
of the case and, if the
balance of probabilities favours the plaintiff, then the court will
accept his version as being probably
true. If however the
probabilities are evenly balanced in the sense that they do not
favour the plaintiff’s case any more
than they do the
defendant’s, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that
his evidence is true
and that the defendant’s version is false”
In the circumstances of
the present case, I find that there is no credible support for the
plaintiff’s version that in all
probability, he was shot while
he was asleep in the bedroom and only discovered later that he was
injured. To my mind, the probabilities
of this case do not favour the
plaintiff’s version.
[31] I accept that the
police officials found themselves under attack and believed that they
were in danger of physical harm during
the second incident. The
damage that De la Hunt suffered to his shirt as a result of the
plaintiff’s attack on him, the plaintiff’s
relentless
advance on them while he was armed with a knife, the speed with which
the incident occurred and the short space of time
they had to react,
left De la Hunt with no option but to shoot at the plaintiff. The
fact that he suffered muscle injuries only
is indicative of the fact
that De la Hunt intended only to stop the plaintiff and repel the
attack on him and Mahapela. In the
circumstances, I am satisfied that
the policeman acted in self defence during the second incident, and
that the plaintiff has,
consequently, failed to establish a case for
the relief he seeks.
[32] I, accordingly, make
the following order:
The plaintiff’s
claim is dismissed with costs.
____________
NAIDOO, AJ
Counsel for Plaintiff:
Adv M Steenkamp
Instructed by:
Naudes Attorneys
Naudes Building
Corner Markgraaf and
Kellner Streets
Bloemfontein
Counsel for Defendant:
Adv SJ Reinders
Instructed by:
State Attorney
11
th
Floor
Fedsure Building
49 Maitland Street
Bloemfontein