About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2012
>>
[2012] ZANCHC 2
|
|
Khani v Minister of Safety and Security and Another (735/08) [2012] ZANCHC 2 (27 January 2012)
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CAPE HIGH
COURT, KIMBERLEY]
CASE NO: 735/08
In the matter
between:
SIPHO ARNOLD KHANI
…......................................................................................
PLAINTIFF
AND
MINISTER OF SAFETY
AND SECURITY
…...............................................
1
ST
DEFENDANT
CONSTABLE (V)
TERBLANCHE
…............................................................
2
ND
DEFENDANT
___________________________________________________________________________
Date of judgment :
27 January 2012
JUDGMENT
TLALETSI J
Introduction
[1]
The
plaintiff instituted a claim for damages against the defendants
emanating from an incident in which the plaintiff was shot several
times by Second defendant who was at the time acting within the
course and scope of her employment with the first defendant.
1
The plaintiff’s
pleaded case is that Second defendant intentionally and wrongfully
shot him seven times and that all the seven
shots struck his body and
as a result sustained several injuries. The defendants pleaded that
about five shots were fired by Second
defendant at the plaintiff.
They denied that Second defendant acted unlawfully and pleaded that
her actions were reasonably necessary
in order to effect a lawful
arrest; to maintain law and order and to protect her own life and
that of other people at the scene.
[2]
At the commencement
of the trial I ordered with the concurrence of the parties that the
merits be separated from
quantum
in terms of rule
33
2
.
The trial thereafter proceeded for the consideration of the issue of
liability. In light of the defendants’ defence it became
common
cause that
the
defendants carried the duty to begin adducing evidence and to justify
the shooting of the plaintiff.
3
Factual
Background
[3]
The
defendants tendered the evidence of the following witnesses. Second
defendant,
4
Sergeant Sarel Jacobs, the police reservist
who was in the company of Second defendant and a constable by rank at
the time; Insp.
Edward Pieter Fortuin, a police officer who attended
the scene and drew a sketch plan and key thereto; Capt. Reith Mervyn
Rance,
a police officer attached to the ballistic section of the
Forensic Science Laboratory of the South African Police Services
(SAPS);
Dr Frederic Du Plessis (an orthopaedic surgeon); Dr Jacob
Johannes Dempers (the Forensic Pathologist); Jacobs Steyl (the
forensic
ballistic expert) and Bongani Conrad Ntini.
[4]
It is
common cause that on 16 July 2005 Second defendant was on duty at
Postmasburg. She was holding the rank of constable at the
time. She
was wearing her police uniform and that evening attending to
complaints reported at the police station. She was the commander
of
the station that evening. Whilst travelling in the police van in the
company of reservist Const. Jacobs (Jacobs) she received
a report
through the radio that there
___________________
4. At the time when she
testified she had already assumed the surname of Du Plessis.
was a fight taking
place at the Boichoko Community hall. Jacobs was also wearing his
duty uniform. Second defendant proceeded to
the community hall. On
arrival they met a certain Daddy who reported that someone was having
a rifle inside the hall.
5
[5]
Second
defendant and Jacobs accompanied by Daddy walked up to the entrance
of the hall.
6
Daddy pointed at the plaintiff who was
inside the hall as the person in possession of a rifle. Second
defendant and Jacobs walked
towards the plaintiff who was at the time
standing at point “B” which was closer to the stage. The
plaintiff was standing
with his back against the two police officers
as they walked towards him. The music was playing very loud and there
were many people
inside the hall. On arrival Second defendant held
the plaintiff’s right hand and Jacobs held him by his left
hand. Second
defendant told the plaintiff to accompany them out. The
plaintiff was cooperative and he walked with the two police officers
towards
the exit or entrance of the hall. After walking for about
five paces the plaintiff suddenly broke loose from the two and
stopped.
___________________
5. Daddy was one of the
organisers of the event that was taking place at the hall.
6. The entrance is
marked point G on the sketch plan of the scene.
[6]
Second
defendant testified that she tried to grab the plaintiff’s hand
but he pulled himself backward and immediately inserted
his right
hand under his jacket towards the top of his trousers. He took out a
pistol and “
cocked”
it with his left hand. Second
defendant testified that she then lost her memory for a while and the
next moment she found herself
standing on the right side of the hall,
at point ‘J’. She noticed the plaintiff standing in front
of her at point “L”
holding a pistol with both his hands
in front in a shooting position and waving it to the right and left
directions. There were
still many people inside the hall. Second
defendant mentioned that as the plaintiff was holding this firearm
waving it to the right
and left she thought that he was going to
shoot the people inside the hall. She was standing a distance of
about 3, 1 metres from
the plaintiff. She drew her service firearm
and shouted at him to throw the weapon down. The plaintiff did not
comply. Second defendant
aimed at the plaintiff’s right arm and
fired one shot. The plaintiff continued to move his hand with the
firearm as he did
before and in the process pointed the firearm at
Second defendant. She believed that he was going to shoot her.
[7]
Second
defendant then aimed at the plaintiff’s lower body and fired
another shot. The plaintiff continued with his sideways
movement of
the hands holding the firearm. Second defendant believed that both
shots that she fired had missed the plaintiff. She
again fired other
shots at the plaintiff until he fell down. She mentioned that all the
shots she fired were aimed at his lower
body as she did not want to
kill him. The purpose of her firing shots was to cause the plaintiff
to drop his firearm. Her intention
was to save her own life as well
as the lives of people inside the hall. Second defendant testified
further that she could not
recall if she fired four or five shots.
She had six rounds of ammunition in the magazine of her service
firearm. Only one round
of ammunition was found in the magazine after
the incident.
[8]
Second
defendant testified that as the plaintiff fell his firearm also fell
next to him. According to Second defendant as she was
still standing
there somebody screamed to draw her attention to something? She
looked at the plaintiff who was lying on the floor
and realised that
he was attempting to move his hand to get hold of his firearm that
was next to him on the floor. Second defendant
kicked the firearm
further away from him. Later someone from the crowd told her to put
away her firearm. She was still holding
it. She placed the firearm
still in a firing position in the holster that was tied to her hip on
the right hand side. She phoned
the police station for assistance.
Warrant Officer, Niemann and another police officer came to the
scene. Niemann demanded her
firearm. She gave it to her. She was
later taken to the police station where she was seen by a medical
practitioner and a priest
to assist her as she was in a shocked
state. Later that night Second defendant returned to the scene where
she met Inspector Fortuin.
Although she cannot remember what happened
she can however recall that Fortuin conducted some tests to determine
the presence of
“
primer
” on her hand.
[9]
Jacobs
testified that when they arrived at the plaintiff he asked him to go
with them outside. Second Defendant also spoke to him
on the other
side but he could not hear what she was saying. He held the plaintiff
tightly with both his hands on his left palm.
He could not see how
Second defendant held him if she did. He mentioned that the plaintiff
freed himself from him and retreated.
He then grabbed the plaintiff
over his upper body from behind holding his hands tightly around his
body. He tried to forcibly take
him out. The plaintiff was resisting.
They struggled. During the struggle it happened that he looked over
the plaintiff’s
left shoulder. As he did so his eyes were set
directly on to the barrel of a firearm/pistol. He became frightened
thinking that
he would be shot. He immediately pushed the plaintiff
away from him. As he pushed him away a shot was fired. Jacobs ran
towards
a wall which was about 5 paces from where he was struggling
with the plaintiff for cover. As he ran he heard several shots being
fired. He could not recall how many shots were fired. They were not
all fired at once but intermittently. After a minute when there
was
no longer firing of shots he peeped from behind the wall and saw the
plaintiff in the process of falling down. As the plaintiff
was
falling down and reached for the floor the pistol that he had in his
hand also fell off his hand. The plaintiff fell on his
back. At that
stage Second defendant was standing on the right back diagonal
position to the plaintiff. He saw the plaintiff whilst
lying on his
back trying to reach for his firearm and second defendant kicked it
away from him. He saw a round of ammunition and
an empty bullet
casing on the floor next to the plaintiff. He however did not count
them. He did not at any stage see the plaintiff
lying on his stomach.
Neither did he notice or feel any holster on the plaintiff.
[10]
During
cross-examination Jacobs testified that he did not see where the
plaintiff got the firearm from. He was referred to his
written
statement obtained by the police in which he said that after he took
cover behind the wall and that he took out his firearm.
He denied
that he drew his firearm and could not recall telling the police that
he did so. He further denied that he heard shots
being fired whilst
he was behind the wall. He was also referred to an allegation in the
statement that he saw the plaintiff holding
the firearm with both his
hands. Jacobs was further referred to his testimony in the criminal
proceedings (at which the plaintiff
was the accused) where he
mentioned that when they arrived at the plaintiff they asked him to
go outside with them and he refused
after the two held him by his
hands. He mentioned that the plaintiff agreed to go out with them,
walked a few paces and stopped.
[11]
What was
said to be the plaintiff’s version was put to Jacobs. It was
mentioned that Daddy pointed the plaintiff to Jacobs
and Second
defendant. The two told him that they wanted the firearm. The
plaintiff struggled to take the firearm from his jackets
inside
pocket as it was tight. As he took the firearm out Second defendant
immediately shot him on his right forehand. He immediately
sat down
on the floor and the firearm fell from his hand. He tried to stand up
and he was shot on his upper arm. He stood up and
tried to run away
towards the toilets and was shot on his right hip/thigh area. He then
fell on his stomach and as he tried to
stand up he felt more shots on
his back. He does not know how many shots were fired at him. The last
shot made him feel as if his
legs were elevated and asked the people
present to put his legs on the floor. Jacobs disputed this version.
[12]
Warrant
Officer Niemann who is the Second defendant’s elder sister was
the firearm’s control officer stationed at Postmasburg.
She
received a telephone call from Second defendant who reported the
shooting incident. Niemann arrived at the scene the same evening.
She
received the firearm from Second defendant. She removed the magazine
from the firearm and showed Second defendant that there
was still one
round of ammunition in the magazine. Niemann “
secured”
the firearm and the round of ammunition in the chamber of the firearm
fell onto the floor. She left it on the floor. She later
handed the
firearm at the police station to be used as an exhibit. She also
noticed a firearm on the right side next to the plaintiff
who was
lying on his back. She took it. She found three rounds of live
ammunition in its magazine and confiscated them as exhibits
as well.
She further noticed four bullet casings on the floor. She later
showed them to the investigating officer, Warrant Officer
Rhode. She
also showed Rhode a bullet that was next to the wall (point Q) as
well as two live rounds of ammunition. She knew nothing
about the
holster that was handed in as an exhibit. She noticed a blood spot on
the floor where the plaintiff was lying with his
feet in the
direction of the stage.
[13]
Captain
Rance testified that he is stationed at the ballistic unit of the
SAPS at the Western Cape Forensic Science Laboratory.
On 23 August
2005 he received the following items for analysis; a 9 mm RAP pistol;
a Vector pistol; 3x9mm calibre fired cartridge;
2 fired bullets; 3
cartridges and 3 further cartridges. Rance conducted some forensic
tests and the following were his findings:
the fired cartridge casing
referred to above were fired from one firearm being the RAP pistol.
The same bullets could not have
been fired from the Vector pistol.
The two firearms were in a good working condition free of defects. He
was asked under what circumstances
would the firearm, such as Vector
remain in a stretched/open (“
oopgespan
”) position.
He stated that it could be because there was no ammunition left in
the magazine, or the slide stop had been activated
or that the pistol
mechanism was defective such that the slide stop was not moving or it
remained open. Rance testified further
that none of the fired bullets
had directly struck a wall. The two fired bullets were not fired by
the Vector pistol. It was possible
that the damage to the one bullet
could have been caused by it striking the bone of the plaintiff or
the metal part of one of the
chairs inside the hall.
[14]
Dr Du
Plessis testified that he, on 12 April 2010, examined the plaintiff.
He noticed two wounds on the right arm, being on the
right upper arm
and the other one on the inside of the right forearm. The movement of
the right hand was at the time normal. The
radial nerve showed severe
abnormal components in relation to sensory component as well as its
motor component as a result of this
injury to the right arm. He
mentioned that the said radial nerve is responsible for the movement
of the plaintiff’s hand
fingers which were no longer
functioning normally. For the hand to hold tightly it is necessary
that the brain, spinal cord, nerves,
muscles and joints to function
normally.
[15]
Dr Du
Plessis testified that because of the injury to the radial nerve, the
thumb and finger extensore were affected. The wrist
muscles were not
affected. The wrist muscles were functioning normally. He mentioned
that for a person to hold an object tightly
there must be a balance
between the functioning of several muscles. The injury to the radial
nerve will upset the balance and there
will be overreaction to some
of the muscles.
[16]
Dr Du
Plessis mentioned that his examination of the right arm revealed that
only one shot caused the injury to the arm; the arm
was not
completely straight and there was a measure of flexibility when the
shot went through the arm; the injury to the radial
nerve was not a
straight cut injury. The nerve was partially injured and classified
the injury as the lowest grade of nerve injury;
the wrist muscles
were still intact hence the inference that the radial nerve was
possibly injured under the elbow; the injury
could lead to the
plaintiff loosing the functioning of the thumb and fingers but the
functioning of the wrist muscles was still
intact. He mentioned that
the injury of the muscles can be regarded as minimal.
[17]
Dr Du
Plessis concluded that the injury to the radial nerve happened
immediately as the shot was fired and that it hampered the
normal
functioning and conduct of the nerve. It would therefore mean that
the muscles that are supplied or provided by this nerve
would no
longer function normally and would lead to the person losing control
of the thumb and fingers. A person in the position
of the plaintiff
would therefore hold on to the firearm and struggle to open his
fingers. If he held the weapon with both his hands
the stronger hand
would have supported the weaker hand to work against the effect of
the injury. He mentioned that there is no
anatomy support for the
allegation that the plaintiff would have fallen immediately as a
result of the wound on the arm. The wound
on the arm would alone have
no effect on the radial nerve. He testified that plaintiff became
paraplegic as a result of the injury
to the spinal cord. A person who
became a paraplegic as a result of the injury to the spinal cord
would immediately loose the functioning
of the muscles on his lower
body when he sustained that injury.
[18]
The
defendants tendered the evidence of Dr Dempers in order to establish
the number of shots that struck the body of the plaintiff
and the
number of bullet tracts that were in the plaintiff’s body. I
now proceed to deal with the evidence.
[19]
It is
common cause that Dr Rene Blanco Vinent (Dr Blanco) performed an
operation on the plaintiff at the Kimberley Hospital on
16 July 2005.
He was assisted by
Dr Taylor . A J88
7
as well as an operation sheet were
filled. The following wounds were recorded on the J88:
On right arm: 1
wound± 1x1.5 cm (possibly entry wound) lateral aspect of upper
arm ±12cm above elbow. [Wound 5]
1 wound ±
1x1cm (exit wound) medial aspect of lower Right arm ±15cm
underneath elbow. [Wound 6].
Right leg: 1 wound
±1x1.5cm (entry) lateral upper leg level troganter. [Wound 7]
Abdomen: 1 wound
1x1.5cm (entry) on Right anterior axilla line below costal margin Rib
11[wound 1]. 1 wound 1x1cm (exit) Left anterior
axilla line at level
of post spina aliaca; [wound 3]
Back: 1 wound 1x1 cm
Right side underneath area ±6 cm from spine. [Wound 4] 1 wound
1x1 cm Left side below the scalpel on
level of the nipple [wound 2]
There were also two
bullets: bullet 1 was removed from the plaintiff’s body by Dr
Blanco during the operation. Bullet 2 was
discovered afterwards on
the X-rays taken on his back, i.e. right spinal
_____________________
7. Report by medical
practitioner on the completion of a medico-legal examination.
column on the back
of low lumbar column. Dr Dempers used this information by Dr Blanco
to identify the wounds.
[20]
Dr
Dempers testified that the wound tract of the right arm show a single
shot that entered and exited, meaning that there was only
one shot on
the right arm. Bone damage occurred at spinal column at level T11 and
L4. At L4 there were bone fragments inside the
spinal canal. The
probability is that the tract moved through column L4 from left to
right. The trajectory of the bullet was horizontal
with the ground
seeing that both laminae were damaged. The only bullet wound that is
horizontal with this trajectory that can be
linked, is the one on the
side/flank of the left side.
[21]
As
regards vertebra T11 Dr Dempers mentioned that most fragmentation is
posterior left and the anterior part of the column is relatively
intact. An object ought to have struck the column from the side or
from the back seeing that there were also bone fragments inside
the
spinal canal. He said it was possibly the bullet that caused wound 2
that moved through T11. The tract had possibly moved lateral
and high
and struck the posterior aspect of column T11 got deflected and went
through the soft tissue of the back and caused damage
to the kidney,
liver and diaphragm and proceeded through the hip where the bullet
was found. Wound 4 is according to the clothing
ballistic tests an
entry wound and is consistent with wound 1 through which the bullet
exited the body. Wound 3 was caused by the
bullet that entered the
left side of the body through the soft tissue moved through Lumbale
Column L4’s
laminae
and ended on the right side of the
spinal column.
[22]
Dr
Dempers testified that wound 7 is not an entry wound because of the
absence of corresponding defects on the jeans or the shirt
that
plaintiff was wearing at the time of the shooting. He said a possible
explanation of wound 7 is that the bullet moved from
another place in
the body through the tissue and broke the skin in the area of wound 7
and stopped a bit further on. The blood
spot on the corresponding
area of the jeans is possibly caused by wound 7. The bullet that
caused wound 7 and the defect on the
inside of the underwear was
possibly bullet 1.
[23]
According to Dr Dempers the skin lesion indicated as wound 8 differ
radically from other wounds in that it is round, raised with
consistent edges and its size is half to a third compared to others.
According to him it is not a wound and could be a “
moesie of
keloied”
.
[24]
Dr
Dempers concluded that there were only four shot wounds tracts on the
plaintiff’s body. There is an entry wound on the
lower back (4)
an entry wound left on the upper back (2); an entry wound lateral on
the side(3). According to him the tracts moved
from wound 2 leftwards
on back to the opposite hip and end at bullet no.1; the tract from
wound 3 moves from left to the right
in a horizontal position and end
at bullet no.2. The tract from wound 4 makes a skin movement through
the soft tissue and ends
lateral before the lumbar at wound 1. The
tract from the arm moves from wound 5 to wound 6.
[25]
In the
light of the tracts referred to above Dr Dempers found the version of
Second defendant to be more probable and reasonable
than what was put
to him as the version of the plaintiff. He demonstrated this by using
a model of a human being depicting the
various wounds and tracts. He
testified that for wound 2 to be sustained, in the version of the
plaintiff it would mean that the
person who fired the shot had to do
so in front of the left shoulder of a person lying flat on the
ground/floor. For wound 3 it
would imply that for a person lying on
his back on the floor, the shooter must have his firearm on the floor
next to the body.
For wound 4 it would require the shooter to stand
on the left side of the body and shoot through from the opposite side
since the
tract moves "scewly" through the soft tissue.
Therefore, he concluded, if a plaintiff was lying on the floor, there
was
no way that all the tracts were from one central position and
line.
[26]
The
defendants tendered the evidence of Jacobus Steyl who is a Forensic
Ballistic expert. He on 08 March 2010, accompanied by second
defendant and Supt. Joubert, visited the scene where the shooting
incident took place. There were some improvements made to the
hall by
this time. Second defendant showed him where she was standing in
relation to the plaintiff when shots were fired. The distance
between
the two points was measured at 2.5 m. The width of the hall was
measured at 10.5m and the length including the stage was
22.4m. Steyl
obtained a jacket similar to the one that the plaintiff was wearing
at the time of the shooting with a view to conduct
tests to determine
defects regarding entry and exit shots on the jackets. He covered a
plastic container/ bucket with the test
jacket imitating the body of
a person. He then fired shots at a distance of 2.5m with a similar
pistol that Second defendant used.
He fired the shots at a horizontal
height at the object.
[27]
Steyl
thereafter compared the defects on the test jacket as well as those
on the jacket the plaintiff was wearing at the time of
the shooting.
He took photographs of the shirt, jacket and jeans that the plaintiff
was wearing which were admitted as exhibits.
The following were
Steyl’s findings:
27.1
The shirt
-An exit shot defect
on the right side, on the front panel, 25cm from the centre of the
shirt and 23 cm from the hem of the shirt
and the appearance is
uneven with long ravels (Hemp1).
-An entrance shot
defect right below on the rear side, 20 cm from the right scam and
17cm from the hem of the shirt (Hemp 2).
-An entrance shot
defect on the left middle rear side, 30cm from the right seam and 38
cm from the hem of the shirt (Hemp 3).
-An entrance shot
defect on the left rear side, 3cm from the left seam (Hemp 4).
27.2
The Jacket
-An entrance shot
defect on the right sleeve, 26 cm from the upper point of the
shoulder seam (jacket 1).
-An exit shot defect
on the inside of the right sleeve where the inner lining is stitched
on the inner part of the sleeve, about
4 cm from the lower hem of the
sleeve. Two holes that can be associated with an exit shot defect
appear.
-An entrance shot
defect on the right rear right part, 20 cm from the right seam and
23cm from the hem of the jacket (Jacket 2).
-An entrance shot
defect on the left middle rear part, 34cm from the right seam and
40cm from the hem of the jacket (Jacket 3).
-An entrance shot
defect on the left rear part, 5cm from the left seam and 30cm from
the hem (Jacket 4)
-An entrance shot
defect on the left sleeve with an accommodating tear that forms an
exit shot defect. Only a shallow entrance shot
hole was made and plus
minus a centimetre further was the exit shot defect formed (Jacket
5).
-On the right side
of the jacket is a scam that is torn open between the front and rear
panel of about 13cm long (Exit). This exit
shot defect is associable
with the exit shot defect marked “Hemp 1”.
[28]
A
comparison of the exhibit shirt and exhibit jacket revealed the
following according to Steyl:
-The entrance shot
defect on the upper part of the right sleeve of the jacket (jacket 2)
has not caused damage on the short sleeve
of the shirt.
-The exit defect of
the right side of the synthetic wool lining of the jacket (exit) is
consistent with the exit shot defect on
the right side of the shirt
(Hemp 1).
-The entrance shot
defect on the right rear part of the jacket (jacket 1) is associable
with the entrance shot defect on the right
rear part of the shirt
(Hemp 2).
-The entrance shot
defect on the left middle rear part of the “jacket 3” is
associable with the entrance shot defect
on the left middle rear part
of the shirt (Hemp 3).
-The entrance shot
defect on the left rear part, “jacket 4” is associable
with the entrance shot defect on the left
rear part (Hemp 4).
-The entrance shot
defect on the left sleeve of the jacket (jacket 5) is associable with
the accompanying rear of the jacket and
can in all probabilities be
linked with the entrance shot defect on the jacket (jacket 4).
Defects marked “jacket 4”
and “jacket 5”
therefore could have been caused by one projectile.
There were no bullet
defects appearing on the jeans but only blood spots on the right
pocket part.
[29]
Steyl
testified that from the comparison of the entry and exit defect
between the exhibit shirt and exhibit jacket, with the wounds
as
reflected in the J88 the following can be inferred:
-The wound indicated
on the right upper-arm is associable with the entrance shot defect on
the right sleeve of the jacket (jacket
1).
-The wound on the
right forearm is associable with the exit defect on the right sleeve
of the jacket.
-The wound on the
right lower back is associable with the entrance shot defect on the
right rear part of the jacket and shirt (jacket
2 and Hemp 2). -The
wound on the left middle of the back is associable with the entrance
shot defects on the left middle rear part
of the jacket (jacket 3 and
Hemp 3).
-The wound on the
left side is associable with the right entrance shot defects on the
left rear part of the jacket and shirt (jacket
4 and Hemp 4). -The
wound on the side of the right is associable with the exit shot
defect on the side of the right side of the
shirt (Hemp 1) and the
exit shot defect on the synthetic wool lining of the jacket (Exit).
[30]
According to Steyl bullet 1 that was found on the right hip and
bullet 2 that was positioned on the right posterior on the soft
tissue against the L5 vertebra can possibly be linked with the
defects as indicated as “Hemp 3” and ‘jacket 3”
as well as “Hemp 4” and “jacket 4”
respectively. Both these bullets could possibly have impacted on
vertebrae
L4 and T12 respectively and lost enough energy to remain in
the body.
[31]
Steyl
mentioned further that the bullet that caused the entry shot and exit
shot defects on the right arm could possibly have been
found at the
scene. The bullet that caused the entry shot defect on the right rear
part of the shirt and jacket respectively (Hemp
2 and jacket 2) and
the exit shot defect on the right front part of the shirt (Hemp 1)
could also have been at the scene. In all
probabilities a total of 4
shots struck the body of the plaintiff, of which two bullets remained
in the body and other two bullets
should have been found at the
scene.
[32]
In
response to the version put to Steyl that the plaintiff was shot on
the arm from the front, Steyl explained that that would
be
inconsistent with his findings on the clothing that the plaintiff was
wearing. He said the shot on the arm was from the back
and that it
was only one shot to the arm and that bullet moved through the right
arm. There were no defects on the clothes to suggest
that there was a
second shot that struck the plaintiff on the arm. He further
disagrees that the plaintiff was shot from diagonal
position from the
back on the leg. According to him no defects were found on the
plaintiff’s jeans to suggest that. He however
agrees that three
shots were fired at the plaintiff’s back as indicated by
defects marked “jacket 2”; “jacket
3” and
“jacket 4”.
[33]
On the
suggestion that the 3 shots that struck the plaintiff’s body
were fired at the plaintiff whilst he was lying on the
floor on his
stomach, Steyl explained that for that to happen second defendant
should have fired these shots as follows:
33.1 As regards the
shot that caused defect “jacket 2’ Second defendant
should have stood almost over the body of the
plaintiff and fired
that shot downwards in order to set that kind of trajectory.
33.2 With regard to
the shot that caused defect “jacket 3” Second defendant
would have stood from the front but a little
towards the left of the
plaintiff’s body when the shot was fired.
33.3 With regard to
the shot that caused “defect 4” Second defendant would
have been required to have lowered herself
a lot to be able to get
the shot to have a trajectory that move from the right to the left
through the body.
[34]
Second
defendant’s version that she fired the first shot at the
plaintiff’s right arm when she was standing in a right
skewed
position on his back whilst the plaintiff held his firearm with both
his hands is consistent with his findings and that
the shot was fired
horizontally. Second defendant’s further version that with
regard to her second shot plaintiff turned
to her direction while he
was still standing and she shot him on his lower body is consistent
with his finding regarding the shot
that caused defect marked “exit”
on the jacket. This shot moved in a horizontal direction and is also
consistent with
the exit shot defect marked “Hemp 1”.
Steyl however differs with Second defendant that this shot was fired
whilst plaintiff
turned towards the right in her direction. According
to Steyl Second defendant must have turned around leftwards.
[35]
Steyl
testified that Second defendant’s version that the plaintiff
thereafter turned away from her and she shot at him until
he fell is
consistent with Steyl’s findings. According to Steyl she could
still fire two shots, the third shot could damage
the left sleeve of
the jacket as the defect marked “jacket 5” and also
damage the jacket at defect marked “jacket
4”. This shot
was a horizontal shot with somewhat downward inclination. Her version
about her last shot and the fact that
the plaintiff then fell, is
consistent with Steyl’s finding that this shot shows a downward
impact and that the plaintiff’s
body is supposed to have bent
backwards.
[36]
In
summary, Steyl testified that all the shots could have been fired in
a very short space of time while the plaintiff was still
on his feet
and perhaps in a falling position when the last shot was fired. He
was indeed moving when the shots were fired. In
Steyl’s opinion
the first shot was fired through the arm, after which plaintiff’s
body slightly moved to the left with
the second shot. With the third
shot there was a further movement in the same direction and
thereafter the plaintiff’s body
turned while the fourth shot
struck him. All these shots could have taken place with one movement.
[37]
With
regard to what is referred to as wound no.8. Steyl testified that
there is no defect that could be found on the clothes that
would be
consistent with such a wound. As regards Jacob’s version that
he held the plaintiff around his body from the back
and set his eyes
on the barrel of the firearm when he peeped over his shoulder, Steyl
testified that that is completely possible.
On the question how was
it possible that the plaintiff’s weapon was found in an open
position (“
oopgespan
”) after the shooting, Steyl
answered that the opening system of the weapon was most probably
pushed up after a shot had been
fired and the locking device would
stop the backward movement. He mentioned that the projectile that was
found on the scene after
the shooting incident is not consistent in
form with a projectile that had been shot through the body of the
plaintiff whilst lying
down on his stomach, since such a projectile
would exhibit a flat flattening due to the impact with the floor. To
the contrary
the projectile that was found at the shooting scene
exhibits a round inward
denting on the base
part.
[38]
Bongani
Conrad Ntini testified that during July 2005 he was residing at
Boichoko. He identified the jacket and shoes the plaintiff
was
wearing during the shooting incident as his property and that they
were stolen on 15 July 2005 from his place. He denied ever
handing
over the firearm that the plaintiff had to him for safe keeping. He
testified that it was his firearm (SP Vector) that
was stolen from
his place on 15 July 2005. He demonstrated that it was easy to take
out his firearm from the inner pocket on the
jacket even when the
weapon was in the holder. He testified that his weapon had 15 rounds
of ammunition when it was stolen.
Parties’
Submissions
[39]
Mr
Knoetze assisted by Ms A. Bester in their address analysed the
evidence presented in great detail, pointing out the critical
aspects
of the evidence, the contradictions and their effect, probabilities
and improbabilities and submitted
inter alia
thus:
-
The events
in the community hall show that the plaintiff threatened the bodily
integrity of the people inside the community hall
with the pistol
that he had in his possession;
- That Second
defendant in her capacity as a member of the SAPS was legally obliged
to protect the people inside the hall against
the threats of harm or
death by the plaintiff;
- Second defendant
was in the circumstances required to use force to prevent the
imminent danger;
- The force used by
the Second defendant was reasonable under the circumstances; and
- The defendants
have on a balance of probabilities shown that Second defendants’
actions were at all times necessary.
[40]
Mr van
Niekerk who appeared on behalf of the plaintiff also analysed the
evidence presented by the defendants, pointing at contradictions
in
the evidence, and improbabilities and submitted
inter alia
that:
-
The facts
in this case are such that it should be accepted that the plaintiff
on this day acted in such a way that the bodily integrity
of people
in the hall was threatened;
-
That the facts in
this case are similar to those in
Ntamo
& Others v
Minister
of Safety and Security
8
and that the only
element of necessity to be considered is the question whether
violence was
_____________________
8. 2001(1) SA 830 (TKHC)
indeed necessary and
if it was necessary whether the violence used was reasonable under
the circumstances;
-
That Second
defendant presented no evidence as to why this option was not
exercised or that it would not have had any effect;
-
Second
defendant was naturally obliged to fire a warning shot and she failed
to do so;
-
Second
defendant’s explanation why she could not attack and overpower
the plaintiff from behind and disarm him was, to say
the least,
unconvincing and unsatisfactory;
-
That the
two police officers acted with utmost negligence when they approached
the plaintiff without the necessary devices issued
to them;
-
That even if it
could be accepted that there was a need to shoot at the plaintiff,
there is no justification why the shots were
fired at the plaintiff’s
upper body and that the only inference that can be drawn is that
after the first shot was fired
the Second defendant did not shoot to
get the plaintiff out of action but intended to kill him. No evidence
was tendered as to
why was the plaintiff not shot on his legs; and
-
That Second
defendant used excessive force than it was necessary under the
circumstances.
Mr Van Niekerk
finally submitted that the defendant had failed to discharge the onus
to prove that Second defendant acted lawfully
and the defendants
should be found to be liable for the damages to be proved by the
plaintiff.
Analysis
[41]
The
issue that require determination is whether the defendants have
succeeded to show on a balance of probabilities that Second
defendant
was justified under the circumstances to shoot at the plaintiff in
defence of herself and members of the public inside
the community
hall and/or whether she was obliged to act by virtue of being a
member of the SAPS. Furthermore, if it is found that
she was obliged
to act whether the violence she used was reasonable under the
circumstances. The legal position was succinctly
put by
Madlanga
AJP
in
Ntamo and Others v Minister of Safety and Security
9
as follows:
“
For
private defence (as defence is often called) to succeed, certain
___________________________
9. Supra at para [21]; See also Ntsomi v Minister of Law
and Order 1990(1) SA 512 (C) at 526H; Ex parte: Die Minister van
Justisie:
In re S v van Wyk 1967(1) SA 488(A) at 497H, 509C-D.
requirements must
be met. In this case only two are relevant and I deal only with them.
To state something trite, where the threatened
harm can be avoided
without the use of force, private defence cannot succeed. Where force
is necessary to neutralise the threat
of harm, the force must not be
more than is reasonably necessary to achieve that purpose (the
proportionality principle or doctrine---see
R v Molife
1940 AD 202
at
204; R v Attwood
1946 AD 331
at 340). The view that I take of the
facts of this case is that what needs to be determined is whether the
use of force was necessary
at all and, if it was necessary, whether
the force used was not excessive (i.e. was it proportional to, or
commensurate with the
threatened harm).”
[42]
For the
defendants to benefit from the application of the principle, they had
to establish that there was an unlawful attack or
threatened attack
on Second defendant or other persons or that there was imminent
physical danger to them; that the use of violence
was necessary to
avert that attack or physical danger; and that the violence used was
reasonable under the circumstances. The test
applicable to determine
whether Second defendant’s
conduct is
justifiable is an objective test.
10
[43]
In view
of the fact that the plaintiff did not tender any evidence, this
matter must be determined on the basis of the factual
matrix supplied
by the defendants together with the expert evidence presented to the
Court. In dealing with the expert evidence
I will be mindful of the
following remarks by
Davis J
in
Schneider v AA
11
:
“
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based
on his or her
expertise, as possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an
_______________
10. S v Goliath 1972(3) SA 1 (AD) at 11F; S v Ntuli
1975(1) SA 429 (AD) at 436D-E; S v Motleleni 1976(1) SA 403 (A) at
406 C; S
v Ngomane 1979(3) SA 859 (A); S v Shikunga & Another
2000(1) SA 616 (NmS).
11. 2010(5) SA 203 (WCC) at 211I-212B.
advocate, nor
gives evidence which goes beyond the logic which is dictated by the
scientific knowledge which that expert claims
to possess.”
[44]
In light
of the concession on behalf of the plaintiff that his conduct without
any doubt threatened the lives and/or bodily integrity
of those
around him, it shall not be necessary to restate the detailed facts
surrounding his conduct. It shall suffice to state
that he was held
by the two police officers by his hands, and were all moving out of
the hall and he suddenly stopped, freed himself
from them and
produced a firearm. It must also be accepted that Jacobs grabbed him
over his body from behind and as he set his
eyes on the barrel of the
plaintiff’s firearm, he became frightened, pushed plaintiff
aside and fled for cover. In the process
a shot was fired from the
plaintiff’s firearm. From this moment, Second defendant who had
lost her memory temporally, acted.
Given these circumstances, the
logical conclusion is that police intervention was necessary.
[45]
The
question that must be considered is what would a reasonable police
officer in the position of Second defendant have done seeing
the
plaintiff wielding a firearm in a shooting position. This is the same
question that the Court in
Ntamo’s
case had to consider.
The facts in
Ntamo
were briefly as follows. The deceased was a
passenger on a bus. Whilst on the journey he became embroiled in an
argument with other
passengers. When the bus reached one of the bus
ranks on its route, the deceased grabbed one of the passengers and
slapped him
while pointing a cocked firearm at him. The bus stopped
at the bus rank and the driver of the bus alighted and rushed to the
police
station where he reported the incident. It was common cause
that when the driver was on his way to the police station he heard a
shot. The same shot was heard by the police at the police station.
Four policemen were assigned to attend to the problem. Three
of them
were wearing police uniform and had R5 automatic rifles. They were
led by a sergeant who was wearing civilian clothes and
having a 9mm
pistol. On approaching the bus the three uniformed police officers
took up positions in a semi-circle in relation
to the bus at a
distance of about 16 paces. The deceased had already disembarked from
the bus and had a pistol held aloft. As planned
the team leader found
his way to the deceased on the belief that the deceased would mistake
him for a member of the public. He
introduced himself to the deceased
as a police officer, showed him his appointment certificate. He took
the deceased’s hand
that held the pistol, put it over his
shoulder and instructed him to drop the pistol behind him. The
deceased did not heed such
order, and pushed the police officer who
was smaller than he was aside. The police officer ran for cover
fearing that the deceased
would shoot at him. The three police
officers who took up positions fired repeatedly at the deceased until
he fell down.
[46]
The
medical practitioner who conducted the post mortem examination on the
body of the deceased found that the latter sustained
two fatal wounds
to the right chest and various other entry and exit wounds. The
probable cause of death was bleeding in the chest.
Both the Court
aquo
as well as the Supreme Court of Appeal found the evidence
of the police witnesses as to what happened after the team leader
approached
the deceased confusing and riddled with contradictions.
There was uncertainty as to whether the deceased fired one or two
shots,
if he fired at all and at whom such shot or shots were
supposedly fired. “The SCA concluded thus:
“
In
my view, no finding can be made, on the evidence of the three
policemen---Constable Msebi did not testify and the bus driver
said
he could not see anything as he was behind the policemen --- even in
the absence of any evidence on behalf of the respondents,
that their
lives or the public were in danger at the time that they shot and
killed the deceased. It follows that the appellant
failed to
discharge the onus resting on him to prove that the fatal shooting of
the deceased was justified.”
[47]
As I
have pointed out the plaintiff relied heavily on the facts and
reasoning of the Courts in
Ntamo
and urged this Court
to find that the respondents had failed to discharge the onus of
proving that the plaintiff’s shooting
by Second defendant was
justified. A point was made that as it was remarked by the trial
court in
Ntamo
,
the Second defendant failed to
fire a warning shot as required. The circumstances of this case
differed from
Ntamo
on this and other crucial aspects
that will be shown later. In
Ntamo
,
the deceased
had disembarked from the bus and was in an open area where members of
the public were some distance away. It need
to be mentioned that the
trial court’s remarks regarding the warning shot were made on
the basis of a finding that the police
should not have approached the
deceased as they did. The court found that instead of resorting to
violence, the police should have
resorted to other reasonable forms
of intervention. One of these was for the uniformed police to call
out to him and give him instructions
from a distance and watch out
for his response. This method was found easier for the police to
adopt because of the many motor
vehicles present at the scene which
was a parking area. Only in the event of the desired response not
forthcoming from the deceased,
the police could have fired a warning
shot. One of the police officers who testified conceded that this
method was an option.
[48]
In this
case the incident took place inside a hall full of people. The firing
of a warning shot would have placed the lives of people
inside the
hall in danger. Furthermore, Second defendant had ordered the
plaintiff to drop his firearm and he did not comply. He
instead
continued to wield the firearm in a shooting position. In addition,
he continued to hold onto the firearm after he was
shot on the hand.
The firing of a warning shot was therefore in my view an option that
was not feasible under the circumstances.
[49]
The
criticism that Second defendant should have grabbed the plaintiff
from behind and disarm him is in my view without merit. Already
Jacobs had grabbed the plaintiff with a view to overpower him and did
not succeed. He left him when he set his eyes on the barrel
of his
firearm and fled. It shows that the firearm was pointed at him whilst
he held the plaintiff. Furthermore, Second defendant
explained that
she could not attempt to grab him from behind because he was moving
sideways with a cocked firearm and could possibly
shoot her or
members of the public. It was dangerous to try to grab him. She was
also smaller than him and she was unassisted at
the crucial moment.
Her explanation is in my view reasonable and satisfactory.
[50]
A point
was also made that Second defendant was negligent in not having in
her possession items such as handcuffs, teargas and
a baton which had
been issued to them as members of SAPS. She conceded that she was
negligent in not having these items in her
possession. However, her
negligence in not having these items does not in my view make the
shooting unjustified. She explained
that she could not use the
teargas canister inside a hall full of people because it would affect
them all. It will also be unreasonable
to defend oneself and the
public with teargas, a baton or handcuffs against a person having a
firearm. The absence of these items
does not mean that the Second
defendant unnecessarily used violence for defence.
[51]
The
evidence of Second defendant that she did not intend to kill the
plaintiff but merely to disarm or put him out of action, and
that she
at all times aimed at his lower part of the body remain unchallenged
and there is no reason not to accept it. The first
shot was directed
at the right arm. Only when the plaintiff did not respond thereto and
when Second defendant believed that she
missed him that the second
and subsequent shots were fired. This aspect also distinguishes this
case from the facts in
Ntamo
where the police armed with
automatic rifles fired at the deceased on his chest. In
Ntamo
the
police had more firing power than the deceased and they all four of
them used it
. In casu
only Second defendant had to deal with
the situation.
[52]
I agree
with the submissions on behalf of the defendants that the
contradictions between the evidence of Jacobs and Second defendant
have no bearing on the question whether Second defendant acted in
defence of herself and members of the public. These contradictions
are
inter alia,
the fact that Second defendant in her evidence
in chief said she fired 4 or 5 shots whereas during cross examination
she said it
should have been 4 shots because a round of ammunition
was found in the firearm when it was secured; that in the criminal
trial
she regarded herself not as a good shooter whereas during this
trial she regarded herself as a good shooter; that at the criminal
trial she said plaintiff freed his left hand from Jacobs, and cocked
the firearm with it whereas in this trial she said she did
not see
plaintiff free himself from Jacobs but assumed that he did because
Jacobs held his left hand and used the same hand to
cock the firearm;
that although she said she did not shoot the plaintiff from a top
position downwards but that she may have fired
the third and fourth
shots when the plaintiff was in the process of falling down; that her
evidence differ from that of Steyl when
she says that the plaintiff
had turned to the right when the second shot was fired whereas
Steyl’s findings were that he
must have turned to the left. It
is correct that there are contradictions but they do not detract from
the fact that Second defendant
acted in defence of herself and other
members of the public.
[53]
Reference was also made to the contradictions relating to Jacobs’
evidence in the criminal trial and what he said in this
Court. The
main aspect is that at the criminal trial Jacobs said he touched the
plaintiff on the shoulder and asked him to accompany
them outside and
the plaintiff refused and under cross examination in this Court he
testified that they requested the plaintiff
to accompany them outside
and whereupon the plaintiff moved with them for a short distance and
stopped and refused to move further.
That at the criminal trial
Jacobs testified that the plaintiff’s weapon was pointed at the
roof when a shot was fired, whereas
during cross examination he
testified that it was pointed at the top part of the wall at the
entrance side and that he later said
that he actually could not see
to which direction was the firearm pointed but only inferred. These
contradictions have no bearing
on the question whether Second
defendant acted in self defence. The plaintiff was present in Court
throughout the trial (except
on the day when arguments were
presented) and elected not to tender evidence about what happened.
[54]
This is
not a case where one could say that the police acted without a proper
plan. Unlike in
Ntamo
, the plaintiff was not wielding a
firearm when the police arrived. They approached him and he gave full
cooperation by agreeing
to accompany them outside. He was aware that
he was dealing with the police and was not being attacked by
civilians. He decided
to withdraw his cooperation and draw his
firearm. I doubt that a reasonable police officer would have foreseen
that the plaintiff
was going to withdraw his cooperation and act as
he did. From the moment he drew his firearm, a dangerous situation
was in existence
and the police had to act urgently. It would be
unreasonable to criticize the actions of Second defendant, with the
benefit of
hindsight, to say that the plaintiff had all the time to
shoot at the police or other people inside the hall and did not do
so.
What would have been a reason for him to free himself from the
police, draw a firearm and cock it, if not to use it? Had the
plaintiff
injured any of the people inside the hall Second defendant
would have been criticised for shirking her responsibilities and not
act as required of a police officer in her position and First
defendant would have been liable for any damages suffered.
[55]
I find
that both Second defendant and Jacobs were reliable witnesses. They
gave good impression to the Court. Each one gave an
independent
account of what happened. They did not attempt to tailor their
evidence for it to be free of contradictions. Such contradictions
are
expected seeing that things happened quickly in a noisy hall full of
people. Ntini’s evidence is only relevant as to
his ownership
of the firearm that was possessed by the plaintiff and how it got
missing and is not relevant to the events in the
hall.
[56]
As
regards the expert witnesses I am satisfied that they testified
according to their professional skills and gave an independent
account of their conclusions. They corroborated each other
materially. Their conclusions are also to a great extent consistent
with the factual matrix. Their opinions were objective, unbiased and
logical.
[57]
I am
satisfied that the circumstances inside the community hall were such
that the plaintiff acted in such a way that the bodily
integrity and
lives of people were in danger and that Second defendant as a member
of SAPS had to intervene as she did and the
violence she used to
avert the danger was reasonable. The respondents have therefore
succeeded to discharge the
onus
resting on them that the
shooting of the plaintiff by Second defendant was reasonable under
the circumstances. The plaintiff’s
action should therefore be
dismissed with costs. The defendants should be commended for the
employment of two counsel. Such a move
is a positive contribution
towards addressing the gender transformation challenges of the legal
profession in this country. However,
this is not a case where the
plaintiff should be ordered to carry the costs of two counsel.
Order
[58]
In the
result the following order is made:
Plaintiff’s
action is dismissed with costs, such costs not to include the costs
of employment of the second counsel.
__________________
L P Tlaletsi
Judge: Northern
Cape High Court.
Appearances:
On
behalf of the Plaintiff: Adv J van Niekerk SC
Instructed
By: Haarhoffs Inc
On
behalf of the Respondent: Adv Knoetze SC and Adv A Bester
Instructed by: State
Attorney
1
The
plaintiff has since passed away after the closure of the respective
party’s cases. The executor of his
estate
has filed a notice in terms of rule 15(2) in terms whereof he is
substituted as the plaintiff
.
2
Rules
for regulating the conduct of the proceedings in the several
Provincial and Local Divisions of the Supreme Court of South
Africa.
3. Mabaso v Felix 1981(3) SA 865(A) at 874B-E. Minister
of Safety and Security v Ntamo and Others 2003(1) SA 547 (SCA) at
par.
[3].