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[2024] ZAFSHC 124
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Xuma v Minister of Police (2484/2021) [2024] ZAFSHC 124 (25 April 2024)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
FREE
STATE
DIVISION
,
BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no.
2484/2021
In
the matter between:
SIYASANGA
OKO XUMA
Plaintiff
And
MINISTER
OF POLICE
Defendant
HEARD
ON:
28
FEBRUARY;
1
AND
3
MARCH;
13,
14,
15
JUNE
2023 AND 16-17
JANUARY 2024.
HEADS
FILED ON 02 FEBRUARY 2024 AND 12 FEBRUARY 2024.
JUDGMENT
BY
:
GUSHA, AJ
DELIVERED
ON:
25 APRIL 2024
[1]
In this action
the plaintiff claims damages in the amount of R1 150 000.00 arising
·
from an
incident wherein he lost his right eye as a result of an alleged
shooting at
the
instance of members of the South African Police Service (the police)
there and then acting within the course and scope of their
employment
with the
defendant.
[2]
It
is the plaintiff's pleaded case that on the 21
st
June 2020 in Bronville Welkom, he was shot with a rubber bullet in
his right eye, allegedly by an unidentified police officer.
He avers
that the injury he sustained was wrongful and was caused by the sole
and exclusive negligence of one or more of the employees
of the
defendant.
[1]
[3]
For
its part the defendant denies that its employees shot the plaintiff
as alleged.
[2]
Subsequent to the
plaintiff testifying, the defendant brought a successful application
in terms of Rule 28 (1) to amend its plea.
[3]
The amendment had the effect that during trial, the defendant pleaded
in the alternative that in the event that the court finds
that the
plaintiff was shot by employees of the defendant the plaintiff;
(a)
voluntarily
assumed the risk of injury; knew or alternatively foresaw that rubber
bullets would be fired by employees of the defendants
on the day of
the incident;
(b)
knew the risks
involved in him not taking reasonable steps to avoid being struck by
a rubber bullet in the circumstances
that prevailed
at the time (the risk being that he could be seriously injured by a
rubber bullet);a
(c)
appreciated
the extent and ambit of the risk of harm; and
(d)
by his conduct
or omission, consented to the risk of being injured.
[4]
The parties
agreed to separate the issues and defer quantum for later
adjudication. Accordingly this court is solely called upon
to
adjudicate the merits of this matter.
[5]
In support of
his claim the plaintiff, in addition to his evidence, proffered the
evidence of Messers Mohlabane Modise and Zinikele
Tappur who were
both in
the
presence of
the plaintiff at the time of the alleged incident. In addition to the
viva voce
evidence
the following exhibits were tendered during the trial;
(a)
Exhibit
A (photographs mainly depicting Mr Modise's house, the plaintiff and
where his location at the time of the alleged shooting)
[4]
(b)
Exhibit
B (manually drawn up sketch of the scene)
[5]
(c)
Exhibit
C (Google Map)
[6]
(d)
Exhibit
D (J88 detailing the injury sustained by the plaintiff)
[7]
(e)
Exhibit
E
(Plaintiffs
statement)
[8]
(f)
Exhibits
F and G (Maps)
[9]
(g)
Exhibits H1-H6
(SAPS video footage displayed in court which in essence depicted the
events as they played out at the scene, noteworthy
from the footage
is that there were clearly at least 2 Nyala's at the scene, during
one of the video's shown in court
(h)
Exhibit I
(blue rubber bullets displayed in court).
[6]
The defendant
proffered the evidence of 2 witnesses; Warrant Officers Francois
Schutte and Joseph Booi who are both employees of
the defendant and
were on duty and present at the scene in their official capacity.
[7]
I
pause here to make the following remarks; at the tail-end of these
proceedings, the defendant brought an application to tender
the
evidence of an expert witness. The plaintiff opposed this application
on the basis that the expert report was out of time having
only been
delivered on the 2
nd
June
2023 at which point the plaintiff's case was already closed. I
dismissed the application. In dismissing the application
I was
fortified by the fact that no application for condonation was brought
by the plaintiff.
[10]
It needs
no restating that such applications are not there for the mere
taking,
it is an indulgence that a litigant seeks from the court.
Furthermore, I was fortified
by
the
following
remarks
in
Mokhethi
and
another
v
MEC
for
Health,
Gauteng 927522/2011) [2013] ZAGPJHC 227
"It
is
further trite law that the rules regarding expert notices are to be
complied with not necessarily
in
sequence.
It
is
not
for the defendant to wait and see if the plaintiff is going to call
expert testimony before the defendant decides whether or
not its case
demands the calling of expert testimony to its own benefit".
[11]
[8]
Lastly on this
aspect, in my view the defendant adopted a hum and haw approach as
evinced firstly by the amendment of the pleadings
at the stage when
same was effected and now seeking to tender the evidence of its
expert witness without so much as seeking an
indulgence from this
court. Unfortunately for the defendant, that strategy, if that ever
was, redounded to its own disadvantage.
[9]
I
now turn to deal, succinctly, with the germane facts in this case.
The plaintiff testified that on the day in question he drove
to Mr
Modise's property, situated at Hani Park Bronville Welkom,
[12]
in a vehicle the two were supposed to effect repairs on. On the said
day he discerned that there was an extant protest action in
the area,
some distance from Mr Modise's property. At Mr Modise's property and
whilst working on the vehicle outside in the yard,
he saw two police
Nyalas
[13]
driving up and
down. He also observed that some of the protesters would place stones
and
rocks
on Erfdeel Road and that whenever a Nyala would approach, the
protesters would scatter and run away.
[10]
At
some point, prior to being injured, he observed some youths standing
near Mr Modise's house, some lying under shrubs close to
the trench
in the passage between the houses
[14]
,
and
others running from Erfdeel Road into the passage. He continued to go
about his business.
[11]
Whilst working on the
vehicle, he heard children screaming and crying, when he turned to
check what the noise was about, he felt
something strike and enter
his right eye and immediately water came out of it. He was taken into
the house and eventually taken
to the hospital for medical treatment.
During and after treatment, the medical personnel informed him that a
blueish marble shaped
rubber bullet that was lodged in his right eye
cavity was removed. Same was shown to him, he was however not
permitted to take
it home.
[12]
After his
discharge Mr Modise provided him with 2 identical rubber bullets
which were later displayed in court during the trial.
[13]
Mr Madise
testified and largely supported the evidence of the plaintiff with
regards to the presence of the plaintiff at his home
and the reasons
therefor. He testified further that whilst they were working on the
vehicle, he heard a shot and looked towards
Erfdeel Road in order to
ascertain and observed an armed police officer in the Nyala with his
weapon aimed at the protesters standing
about near his house. Shortly
thereafter a second shot rang and he observed the plaintiff falling
and realised that the plaintiff
was injured in his eye. He took the
plaintiff to hospital and after the incident, in fact on the same
day, he picked up 2 rubber
bullets, one in his yard and the second
outside his gate.
[14]
Mr Tappur
testified and largely also supported the version of both the
plaintiff and Mr Modise with regards to the circumstances
leading up
to the plaintiff's injury. He
testified
that he was not involved with the vehicle as he busied himself with
his laundry. Whilst doing his laundry he observed
a Nyala patrolling
up and down the main road and some protesters (children as he called
them) pelted the Nyala with stones. As
and when the Nyala would
approach, the protesters would disperse and run in different
directions, with some running towards the
passage and some towards Mr
Modise's gate. At some stage the Nyala came to a standstill and that
is when he heard shots being fired
from the Nyala towards the
protesters who were in the passage and towards those who stood about
near Mr Modise's gate. After the
first shot was fired, he reprimanded
the protesters who were near the gate and at that stage he then heard
a second shot ring.
It is his evidence that he could observe all of
this as the Nyala was at a standstill and its door open. He further
observed that
the police officer who fired the shots was an African
male. Subsequent
to the second
shot, he observed the plaintiff fall to the ground and he then
realised that the plaintiff was injured and he observed
that the
latter was bleeding and some watery substance oozed from his right
eye. Mr Modise later took the plaintiff to hospital.
[15]
Albeit all the witnesses were extensively taken through cross
examination, the evidence as presented by the
plaintiff and his other
witnesses was not seriously taken issue with. Save to quibble with
the number of the Nyalas on the scene
and the conduct of the
protesters, the evidence for the plaintiff was left largely
uncontroverted. What is, perhaps, illuminating
is that throughout the
cross examination, at no stage did counsel for the defendant put to
the witnesses that none of the servants
of the defendant were
responsible for the injuries the plaintiff sustained. Instead much
was made of the fact that the plaintiff
and, indeed, his witnesses
knew or ought to have known that during a protest action police
officers use rubber bullets.
[16]
The above was the sum total of the plaintiff's evidence. I now turn
to deal with the evidence led for the
defendant.
[17]
Warrant
officer Schutte, a police officer with some 36 years of experience
and at the time stationed at the Public Order Policing
Unit (POP) and
a reservist commander,
succinctly
testified that on the day of the protest he (as the driver) and his
crew were deployed to Bronville to conduct crowd
management services
as there was an extant protest action. As part of his crew were
Captain Dlamini, Warrant Officer Gerber and
Sergeant Skosana. Upon
their arrival they remained stationed at the 4-way stop. A while
later, a crowd emerged and barricaded the
road and pelted them with
stones. He and Captain Dlamini threw stun grenades at the crowd who
dispersed in different directions.
Subsequent to this, they remained
stationed at the 4-way stop. Approximately 2 hours later they
observed a crowd who were
attacking
[15]
a
municipal garbage truck. Captain Dlamini fired rubber bullets at this
crowd. A few minutes later Sergeant Skosana fired 6 14mm
CS
[16]
rounds at the crowd who once more dispersed in different directions.
[18]
Noteworthy of his
evidence is that from the moment of their arrival in Bronville, their
Nyala remained stationary at the 4-way stop
which intersects at
Erfdeel Road. Differently put, their Nyala was nowhere near Mr
Modise's home.
[19]
During
cross examination, Warrant officer Schutte conceded that owing to the
locale their Nyala was at, he did not witness the incident
involving
the plaintiff. When shown the blueish rubber bullets entered into
evidence, he readily admitted that same were fired
from a 12-gauge
Muster shotgun issued to and used by police officers. He however
could not say with certainty whether those shown
to him were fired on
the day by the police. He proffered that same could have easily have
been ascertained via a reconciliation
of the SAPS 15
[17]
and
incident registration information system (IRIS) report.
[20]
Warrant officer Booi
testified that he is a police officer with 33 years' experience also
attached to the POP unit. He largely supported
the evidence
of Schutte with
regards
to when and why they went to Bronville. He further supported the
evidence of Schutte with regards to the action they took
when some of
the protesters threw stones at their Nyala and barricaded the road.
Where there is some divergence
in their
evidence, contrary to Schutte, Booi testified in cross examination
that at some point he observed a second Nyala on the
scene. What is
also noteworthy of his evidence is that he identified the officer in
the video footage aiming a rifle at the protesters
as Sergeant
Ramatheletse. He distinctly recalled that rubber bullets were fired
by Captain Dlamini and one Warrant Officer Tshwane
both from
Schutte's crew.
[21]
During the
trial the court had occasion to view video footage of the scene as
well as the goings on the day. The footage shown greatly
assisted the
court in understanding the evidence led. I however hasten to add that
in none of the footage shown in court does one
ever discern the
alleged shooting of the plaintiff. What one however sees are the
protesters on Erfdeel Road, the debris on said
road, 2 Nyalas driving
up and down on said road as well as a number of police officers, some
of whom are armed with rifles.
[22]
From the
evidence proffered as well as the video footage, it is clear that on
that fateful day 2 Nyalas were on the scene. From
the footage shown,
I could clearly discern 2 separate Nyalas and an African male police
officer, who was later identified as warrant
officer Towa engaging
with the crowd. As per the evidence he was not part of Warrant
Officer Schutte's crew nor did he at any stage
during that day ride
in the Nyala driven by Schutte.
[23]
At the point
when Towa engaged with the crowd, I could not discern any stone
throwing or active barricading of the road, save for
the protesters
shouting and howling, I could not at this point, and I daresay
beyond, discern any conduct which had the effect
of endangering life
and limb. Whilst the protesters are being addressed by Towa, the
first shot is fired by an unidentified police
officer, the crowd
disperses, thereafter a second shot is fired, it is only at this
stage that I observed that some in crowd threw
stones at the police
officers and then a 3
rd
shot was
fired.
[24]
It is also
noteworthy that neither Towa, Ramatheletse, Tshwane nor any of the
other police officers who were in the second Nyala
and thus on the
scene were called to testify.
[25]
In
my view the failure to call Warrant Officer Towa or any of the
defendant's employees deployed the second Nyala to testify about
the
movement, activities and role played by the second Nyala is material,
and fatal to the version that none of its employees fired
the shot
which ultimately injured the plaintiff. No explanation was furnished
by the defendant for this failure. Accordingly in
view of the
importance and, or, clarity of this or these witness(es) might have
provided the court, I must as a matter of course
draw an adverse
inference from the failure to call them.
[18]
[26]
In
view of the aforegoing, it is my considered view that on a balance of
probabilities, the most plausible inference to draw, in
the absence
of direct evidence, is that the plaintiff was struck in the eye by a
rubber bullet fired by one of the police officers
on the scene. This
finding is fortified by the fact that at no stage during the
proceedings did the defendant imply that the injury
sustained by the
plaintiff may have been caused by something else. Not even the
statement put to the plaintiff, that regard being
had to the distance
between Mr Modise's house and Erfdeel Road, as postulated by the
plaintiff, it was improbable that the plaintiff
would have been hit
by a rubber bullet, was sufficient to redeem the defendant's case on
this aspect. The difficulty the defendant
faces with the statement
put to the plaintiff is that it did not proffer any expert opinion on
this aspect so as to assist the
court to arrive at the conclusion it
sought to make.
[19]
[27]
In
view of the conclusion I reach above, I now turn to determine whether
the actions of the employees of the defendant were wrongful.
It is
established law that not every act or omission resulting in harm is
actionable, in order to attract liability, the act or
omission, by
another, resulting in loss or damages must be wrongful.
[20]
It functions to determine whether the infliction of culpably caused
harm demands the imposition of liability or, conversely, whether
the
social, economic and others costs are just too high to justify the
use of the law of delict for the resolution of the particular
issue.
Wrongfulness typically acts as a brake on liability, particularly in
areas of the law of delict where it is undesirable
or overly
burdensome to impose liability.
[21]
[28]
In
instances of harm resulting from positive conduct, such conduct is
prima
facie
wrongful.
To say that conduct is
"prima
facie
wrongful"
means that to prove the fact of conduct alone is sufficient, absent
indications to the contrary, to establish wrongfulness.
In other
words, wrongfulness need not be positively established by the
plaintiff; wrongfulness is presumed, but may be rebutted
by the
defendant.
[22]
[29]
In
the present matter the facts are predicated on a positive act by the
police; the shooting; which resulted in the plaintiff losing
his
right eye resulting in the infringement of his bodily integrity. The
onus accordingly shifts to the defendant to rebut the
presumption of
wrongfulness. As stated earlier in this judgment, the defendant
belatedly
introduced
the
defence
that
the
plaintiff
was
volens.
It
thus
bore
the onus to prove same. Whether the plaintiff in any particular set
of facts was
volens
is
a subjective fact based enquiry.
[23]
[30]
In
relying on the afore-mentioned defence, the defendant has to prove
that the plaintiff was aware of the risk of injury that
notwithstanding
he voluntarily undertook the risk.
[24]
Differently put, essentially what must be proved is that the
plaintiff had knowledge of the risk involved, appreciated same and
lastly consented to the risk. It has been held however that,
"knowledge
does
not invariably imply appreciation, and
both
together
are
not
necessarily
equivalent
to
consent.
"
[25]
[31]
In an endeavour to
discharge the afore-mentioned onus the defendant's truncated
submission is that the plaintiff was
volens
in that he
knew that there was a protest action in the area, accepted and
appreciated the risks associated therewith. Furthermore
he expected
rubber bullets to be fired on that day as police often used same
during protest actions, he just did not expect same
to reach where he
was at the time. After the first short rang, instead of falling to
the ground and or taking cover, like some
of the protesters did, the
plaintiff instead stood up to see what was going on.
[32]
In support of
these submissions the Counsel for the defendant relied on and
referred
me
to
Lehlela
v
Minister
of
Police
[2023]
1
All
SA 438
(WCC)
a matter
in which the plaintiff also lost an eye as a result of being shot by
police with a rubber bullet .In my view this case
is distinguishable
from the matter before this court, in Lehlela on the proven facts,
the court found that
it
was inconceivable
that
the plaintiff would not have
heard
shots being
fired
before
leaving
her home around 6.45am. On the established facts and inherent
probabilities the crowd was far from docile as she claimed
when she
entered the area. While I accept that she would not willingly have
proceeded to walk directly into the heart of the protest,
on the
probabilities she passed at least alongside the she passed at least
alongside the
protesters
at
a
time when
their assault
on the
SAPS members
was
well
underway.
In
the present matter the plaintiff was nowhere near the protest, he was
in a private property minding his own business, therein
lies the
difficulty for the defendant. I simply cannot agree with the
submission by Counsel for the defendant that in the present
matter
the fact that the plaintiff was not part of the protest is of no
moment, in my view that is the crux of the matter.
[33]
A further difficulty
that the defendant
is faced with
is that this defence as alluded to elsewhere in this judgment was
raised belatedly. The plaintiff was not confronted
with same thus the
court did not have the benefit of his response thereto. In any event
the defendant did not lead evidence to
discharge the onus. I
understand the defendant's argument to be that I must infer consent
from the conduct of the plaintiff on
the day; not taking cover when
the first shot was fired. Albeit the plaintiff was aware of the
protest and knew that rubber bullets
are often fired during a
protest, he was not prodded on whether he knew or ought to have known
that same would be fired in his
direction. I am not persuaded that on
the proved facts the probabilities in this case favour such inference
being drawn. At the
risk of repetition, the defendant's tallest
hurdle is that "knowledge does not invariably imply
appreciation,
and both
together are not necessarily equivalent to consent."
[34]
In my view the
defendant did not discharge the onus, there is no evidence before
this court that the plaintiff knew or even foresaw
the risk that
rubber bullets would be fired in his direction. This really in my
view, is where it all ends with regards to the
seminal requirements
of consent the defendant ought to have met.
[35]
In
the circumstances of this case I am satisfied that the actions of the
police officer(s) were conclusively wrongful. I am however
not
persuaded that when the shots were fired the police specifically
aimed at the defendant. If anything, regard being had to the
fact
that the protesters were fleeing in the direction of inhabited and
unwalled dwellings
[26]
,
I
am of the considered view that the police officers who
fired
the rubber bullets acted with total disregard for the safety of the
community members who were not part of the protest, and
their conduct
was thus negligent.
[36]
The
test for negligence is whether a reasonable person in the defen ant's
position would have reasonably foreseen harm befalling
the plaintiff
as a result of his conduct, and would have taken reasonable steps to
prevent the harm. If so, the question is whether
he took reasonable
steps to avert the harm that ultimately occurred. The onus rests upon
the plaintiff to prove negligence on the
part of the defendant on a
balance of probabilities.
[27]
The reasonableness of such conduct is assessed objectively.
[28]
[37]
In the present
matter the Kruger test would find application as follows;
(a)
he plaintiff must
prove that a reasonable police official in the position of the
defendant's employee would have foreseen the reasonable
possibility
that their conduct would injure the plaintiff; if so
(b)
would take
reasonable steps to guard against such occurrence; and
(c)
the
defendant's employee failed to take such steps.
[38]
This incident
happened on a Sunday afternoon. In this regard the evidence before
this court evince that the police officers who
fired rubber bullets
did so knowing very well that the area of the protest was in close
proximity to residential dwellings. All
of this leads one to only one
plausible inference being drawn; the police officers should have
foreseen, that in firing rubber
bullets as they did and where they
did, the real risk was that innocent bystanders
could be
injured by the rubber bullets. In these circumstances they ought to
have sounded the necessary warnings so that those who
participated in
the protest, and innocent bystanders were aware that rubber bullets
would now be fired. Certainly, in the footage
that I viewed and the
evidence led in court, no such warnings were sounded. In any event
from the footage
viewed,
I am not at
all persuaded
that firing
rubber
bullets
was the only
measure
available to the police to quell the situation. The footage clearly
shows that every time the police fired tear smoke, the
protesters
dispersed. In my view the police could have employed less bellicose
measures to control the crowd, as they had been
doing prior the
shooting incident. Warrant Officer Schutte testified that the use of
shot guns during crowd management is a last
resort. Nothing I saw in
the video footage warranted the use of this last resort, instead what
I saw was the typical raucous behaviour
of protesters; barricading
roads and occasionally throwing stones at the police. To quell the
situation, the police could have
diverted traffic, dispersed the
crowd by using tear smoke, as they did, and maintained their presence
in the area until the situation
normalised. In my view there was no
justification to fire rubber bullets in broad-daylight and in close
proximity to a residential
area.
[39]
In
view of the
conspectus
of
the evidence before me, I am satisfied that there is a causal nexus
between the shooting and the injury sustained by the plaintiff.
The
wrongful conduct of the employees of the defendant was the most
probable cause of the injury
[29]
.
This
much is skillfully conceded by Counsel for the defendant.
[30]
In
Minister
of
safety
and
security
v
Van Duivenboden
2002
(6) SA 431
(SCA)
at
25 the court held that;
''.A
plaintiff is not required to establish the causal link with
certainty but only to establish that the wrongful conduct was
probably
a
cause of the
loss,
which calls for
a
sensible retrospective analysis of what would probably have
occurred, based upon the evidence and what can be expected to occur
in the ordinary course of human affairs rather than an exercise in
metaphysics."
[40]
In conclusion,
on a conspectus of the evidence I am satisfied that the plaintiff
has, on a balance of probabilities, passed muster
of the onus.
[41]
Accordingly I
make the following orders;
1.
The defendant is
liable for 100% of the plaintiffs'
proven or
agreed damages.
2.
The defendant
is ordered to pay the costs which costs shall include the cost of 1
counsel.
3.
The
determination of quantum is postponed
sine
die.
NG
GUSHA, AJ
On
behalf of the plaintiff
Adv.
HJ Van Der Merwe
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant:
Adv.
M Mazibuko
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
[1]
Plaintiff's
amended index: trial bundle pages 4-13.
[2]
Ibid
at
pages
28-32.
[3]
28.
Amendment of pleadings and documents
(1)
Any party
desiring to amend a pleading or document other than a sworn
statement, filed in connection with any proceedings, shall
notify
all other parties of his intention to amend and shall furnish
particulars of
the
amendment.
[4]
Plaintiff's
Trial Bundle, pp 73-90.
[5]
Ibid
at p.91
[6]
Ibid
at p.92
[7]
Ibid
at p.66
[8]
Ibid
p.70
[9]
Essentially
the
same maps
depicting
the
scene and the relevant
area
in Bronville,
in
colour, extracted from Google maps.
[10]
36.
Inspections, examinations and expert testimony
...
9)
(a)
No person
shall, save with the leave of the court or the consent of all
parties to the suit, be entitled to call as a witness
any person to
give evidence as an expert upon any matter upon which the evidence
of expert witnesses may be received unless-
(i)
where the
plaintiff intends to call an expert, the plaintiff shall not more
than 30 days after the close of pleadings, or where
the defendant
intends to call the expert, the defendant shall not more than 60
days after the close of pleadings, have delivered
notice of
intention to call such expert; and
(ii)
in the case
of the plaintiff not more than 90 days after the close of pleadings
and in the case of the defendant not more than
120 days after the
close of pleadings, such plaintiff or defendant shall have delivered
a summary of the expert's opinion and
the reasons therefor:
Provided
that the notice and summary shall in any event be delivered before a
first case management conference held in terms of
rules 37A (6) and
(7) or as directed by a case management judge.
[11]
See
also
Van
den Berg v Land and Agricultural Development Bank of
SA
and
Others
(1995/2016)
[2023] ZAFSHC 336
(21 August 2023).
[12]
Point
A on Exhibit F and G.
[13]
The
colloquial name for an RG-12 4X4 Armoured personnel carrier used by
the South African Police Service
[14]
Point
C on Exhibit G (the property depicted on point C was not there at
the time of the incident).
[15]
When
prompted on this, he clarified that the crowd pelted the truck with
stones and tried to stop it.
[16]
He
explained this to be tear smoke.
[17]
A
report by the shift commander indicating all members who reported on
duty on any given day, where they were stationed and those
who were
absent and the reasons for their absence.
[18]
Tshishonga
v Minister of Justice and Constitutional Development and Another
2007
(4) SA 135
(LC) at para 112
.
[19]
In
McGregor
and another v MEG Health, Western Cape19
the
court held that
'.
..
The
functions of an expert witness are threefold. First, where they have
themselves observed relevant facts that evidence will
be evidence of
fact and [be] admissible as such. Second, they provide the court
with abstract or general knowledge concerning
their discipline that
is necessary to enable the court to understand the issues arising in
the litigation. This includes evidence
of the current state of
knowledge and generally accepted
practice
in the field in question
.
Although such
evidence can only be given by an expert qualified in the relevant
field, it remains, at the end of the day, essentially
evidence of
fact on which the court will have to make factual findings. It is
necessary to enable the court to assess the validity
of opinions
that they express. Third, they give evidence concerning their own
inferences and opinions on the issues in the case
and the grounds
for drawing those inferences and expressing those conclusions.'
[20]
Alex
Roux v Ryand Karel Hattingh
(636/11)
[2012] ZASCA132 (27 September 2012) at para 25. See also
Telematrix
(Pty) Ltd tla Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461
(SCA) para 12.
[21]
Country
Cloud Trading
CC
v
MEC, Department of Infrastructure Development, Gauteng
[2014]
ZACC 28
at para 20.
[22]
Ibid
at para 22.
[23]
Santam
Insurance
Co.
Ltd
v Vorster
1973
(4) 1973 SA 764 (A).
[24]
Waring
and Gil/ow Ltd v Sherbome
1904
TS 340
at 344.
[25]
Ibid
.
[26]
Video
footage viewed evince that those yards which were enclosed were so
enclosed with palisade fence (colloquially called devil's
fork) and
others with wire fence.
[27]
Sardi
v Standard and General Insurance
1977
(3) SA 776
(A). See also
Lalmiah
v Road Accident Fund
(734/2021)
[2023] ZAFSHC 348
(1 September 2023) at para 8.
[28]
Kruger
v Carlton Paper of SA (Pty) Ltd
2002
(2) SA 335
(SCA),
Kruger
v Coetzee
1966
(2) SA 428(A)
at 430 E-F,
Pitzer
v Eskom
[2012]
ZASCA 44
(SCA) para 24.
[29]
Plaintiff's
heads of argument para 11
[30]
Defendant's
heads of argument para 5.