About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2024
>>
[2024] ZAECMHC 33
|
|
Combo v Minister of Police (5904/2018) [2024] ZAECMHC 33 (11 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, MTHATHA)
CASE
NO: 5904/2018
In the matter between:
SIYAMBONGA
COMBO
Plaintiff
and
MINISTER OF
POLICE
Defendant
JUDGMENT
MAKAULA J:
A.
Introduction
[1]
The plaintiff issued summons against the defendant claiming an amount
of R3,015,000.00
(three million fifteen thousand rand) (sic) for
injuries sustained because of being unlawfully and wrongfully shot by
the members
of the defendant (the police) who at the time were acting
within the course and scope of employment with the defendant. The
amount
claimed by the plaintiff is for future loss of earning
capacity and general damages. The action is opposed by the defendant
on
various grounds.
B.
The Plaintiff’s case.
[2]
The plaintiff testified that he was employed by the Department of
Education (the department)
as a Scholar Transporter responsible for
transporting children to and from school. On 24 May 2018, he dropped
the students as usual
at their school and proceeded to town to wash
the motor vehicle and to have a haircut. Having done so, he drove
down Madeira Street
in Mthatha with the intention of driving through
Sutherland Street. However, he could not do so because there were
police blocking
the road leading to Sutherland Street. That compelled
him to drive down Madeira Street. While passing the police
station,
he was prevented by the police from turning into Elliot
Street. He stopped the vehicle on the side of the road and proceeded
on
foot towards the police with the intention of informing them that
he was intending to turn to Elliot Street. As he was
5
meters away from them, they started shooting at him using rubber
bullets. When he was struck by a rubber bullet on
the
front of the right thigh and as he turned to run away, a second
rubber bullet hit him on his buttock. He could see that it
was the
police because they were wearing police uniforms with a badge and
police tag, bullet proof vests, helmets and were carrying
rifles.
However, he could not dispute that there were municipal police
present. He was certain that those who shot
at him were police
in full uniform. He phoned a friend who arrived and took him to
Mthatha General Hospital where he was treated
and discharged. He went
to look for his vehicle where he had left it but was notified that it
had been impounded by the police.
The next day he went to the police
station, produced his motor vehicle logbook and the contract that he
held with the department
and his vehicle was released to him on the
same day. He also opened a case against the police. He was given a
J88 form
[1]
to be filled in by
the doctor.
[3]
The plaintiff testified that at the time of the incident he was
earning between R6000.00
and R10,000.00 monthly from the department.
When he fetched the motor vehicle, the police informed him that his
contract with the
department would be suspended for a period of four
months. Indeed, his contract was suspended for four months and he
lost income
during that. He could not work for a period of two weeks
and had to hire a driver at a rate of R700.00 per week. The driver
worked
for him for two months while his wound was recovering.
[4]
It was put to him under cross examination that he went to the
hospital on 2 May 2018
as reflected in the particulars of claim which
were later amended. It was further put to him that he did not report
the matter
to the police as there was no record on the occurrence
book to that effect. The plaintiff maintained that he went to the
hospital
and gave the J88 to the doctor on the same day he was shot.
He disputed that he worked as a gardener as reflected in his
particulars
of claim. He stated that he had notified his attorneys to
amend that as he never worked as a gardener. He could not produce the
contract he had with the department nor any document which
established that. He further could not produce proof or
evidence
to substantiate that he lost income for a period of either
two months or four months from the department.
C
.
The
Defendant’s case
[5]
Nkosayipheli Zongwana testified that he was a Lieutenant Colonel in
the SAPS. On the
24 April 2018, there was a road blockade by taxis in
Madeira Street. Members of various law enforcement
agencies were
activated including the Police, Public Order Police,
Municipal Police, Crime Intelligence etc. Each department or section
was to
look after its interests, e.g. traffic officers would look
after traffic offences while police would maintain order. Each unit
of the police represented in the operation, was led by its own
commander. He was not on the ground but was operating on a radio
control in one of the police buildings. He was coordinating
instructions from commanders to the various units either by phone,
landline or radio communication. He said the police officers were
armed with firearms, stun grenades, rubber bullets and so forth.
He
testified that many motor vehicles were impounded that blocked the
road. He reported that he inspected the occurrence book at
Madeira
police station and found that no report was made about the injury
sustained by the plaintiff. Procedurally, if there was
a person who
got injured during that operation, the incident would be entered in
the occurrence book. He concluded that there was
no such incident
since there was no entry on the occurrence book and was not reported
in their parade. After calm was restored,
the police units dispersed.
[6]
The doctor who examined the plaintiff has since left the Department
of Health and
was thus unavailable to testify. The doctor who
completed the J88 form has passed away. Due to these factors, the
medical records
and the J88 form were explained and interpreted by
Dr. Vusumzi Mehlo, who is a senior manager Medical Services in the
Mthatha Regional
Hospital. He supervises all the clinical doctors and
nurses in the area. Apart from the treatment and the medical history
provided
in the medical documents read by doctor Mehlo the records,
reflected that on 24
th
April 2018 at 14H57 the plaintiff
was attended to at Mthatha Regional Hospital complaining of being
assaulted by the police. The
record reveals “complains of right
thigh pain after suffering a gunshot. … Patient is
limping with blood-stained
clothing. Patient not in distress.
… 0.5 cm length by 2cm depth gunshot wound actively
bleeding, no visible
or obvious oedema on surrounding tissue, no
raised temperature, wound is clean: Ass. Gunshot.’’The
J88 form was filled
by Dr R.A. Osinjolu who noted; “I
Transcribed the medical examination note of Dr Jametto”.
[7]
On the medical history column, Dr Osinjolu reflected on the injury in
paragraph 6
above. On the J88 form there appears to be two different
dates as reflected by the date stamps. On the first page, it appears
that
the J88 form was signed on 4 May 2018 yet on the second last
page appears a date 2 May 2018 and that it was commissioned on 4 May
2018. Regarding the conflict in dates Dr Mehlo testified that at the
time the plaintiff was consulted they were understaffed. He
suspected
that the plaintiff was examined on 24 April 2018 and the J 88 form
was filled by Dr Osunjolu on 2 May 2018 and was taken
to the records
clerk on 3 May 2018. The plaintiff collected it on 4 May 2028 hence
there were different dates. Dr. Mehlo, therefore,
testified that
there was nothing wrong with the J88 form as it contained information
that is in accordance with the medical form
which was initially
signed by the treating doctor of the plaintiff on 24th April 2018.
D.
Argument
[8]
The plaintiff argued that he has proven “beyond reasonable
doubt” that
he was injured by the police during the course and
scope of their employment with the defendant. The plaintiff argued
that he has
established through medical evidence that he was injured
on the day of the incident. The plaintiff further argued that it is
not
in dispute that the members of the defendant were amongst those
who were deployed on the day in question as there was an unrest.
[9]
The defendant attacked the evidence of the plaintiff on different
fronts. It criticized
the evidence of the plaintiff in that he said
he was employed as a gardener and earned a sum of R2500.00 in his
particulars of
claim. The plaintiff later denied that and stated that
he was earning a sum of R6000.00 to R10,000.00 as a scholar transport
owner
employed by the department. The defendant further attacked the
date on which the incident occurred relying on the amended
particulars
of claim which referred to 24 April 2018 whereas the
first particulars of claim stated that the incident occurred on 2 May
2018.
The defendant submitted that the plaintiff was unable to
tell whether he was shot by municipal police or members of the
defendant
or any other law enforcement agencies which were at the
scene. The defendant discredited the evidence of the plaintiff in
that
he stated he was picked up by a friend after he was shot at
14h30 whereas the J88 form states that he was attended at hospital at
the same time. The defendant made moment of the fact that the
plaintiff did not know the sex of the doctor who attended him and
whether that doctor spoke Xhosa or not.
E.
Analysis
[10]
First and foremost, I should mention up front that the claim before
me encompasses both merits
and quantum. However, no meaningful
evidence was led by the plaintiff regarding quantum and neither did
both parties address the
issue in their respective Heads of Argument
and in oral argument. All the plaintiff stated was that he was
receiving the amount
stated above from the Department and nothing
further.
[11]
I find the following facts to be common cause.
11.1
That there was a protest in Mthatha on 24 April 2018 which
necessitated the calling of law enforcement agencies
including the
members of the defendant.
11.2
In maintaining order, the members of the defendant were armed with
rifles, shotguns as well as rubber
bullet firing firearms.
11.3 That
the plaintiff sustained an injury on his thigh and consequently
received treatment on 24 April 2018 at Mthatha
General Hospital and
was later referred to Ngangelizwe clinic which was closer to where he
was residing.
[12]
As aforesaid the defendant strenuously argued that the
plaintiff could not as a matter-of-fact state that the
people who
shot at him were the members of the defendant. However, as dealt with
in paragraph 2 above the plaintiff categorically
described the law
enforcement officers who fired shots at him and identified them by
their uniform and badges as they were seven
meters from him. Apart
from stating that there were many law enforcement agencies at the
scene, the defendant failed to gainsay
the evidence of the plaintiff
in this regard. The plaintiff remained unshaken in his identification
of the people who shot at him,
stating that it was members of the
defendant. Furthermore, Lieutenant Colonel Zongwana was not at the
scene and did not witness
anything that was happening on the ground
as he was in his office at the police headquarters communicating with
the Police Commanders
on the ground through radio and cellular
phones. That, there was no entry in the occurrence book and related
registers does not
take the matter any further since the plaintiff
was not responsible for making such entries. He reported the incident
to the police
hence he had a J88 form when he visited the hospital.
A J88 form gets given to a complainant by the police for it to
be filled by the doctor attending to him or her. It is inexplicable
that the plaintiff would have had access to a J88 form if it
was not
given to him at the police station as he alleged.
[13]
As previously stated, the defendant criticized the different dates
appearing on J88
and the medical records which were submitted as an
exhibit. However, the explanation given by Dr Mehlo puts the issue to
rest.
There is no evidence tendered which suggests that the J88 form,
the affidavit accompanying it and the date stamps appearing on those
documents were fraudulent. Therefore, nothing turns on the various
dates appearing on those documents. The defendant took issue
with the
fact that the plaintiff alleged that he was picked up by his friend
at 14h30 while at the same time the J88 form also
reflects 14h30 as
the time he was treated by the doctor at hospital as discrediting his
evidence. With the respect this does
not affect the credibility
of the plaintiff for the reason that it is not a requirement in
establishing the truthfulness of his
evidence especially if no
further criticism can be leveled against his evidence. Under the
prevailing circumstances at the time,
no reasonable person would
expect the plaintiff to be accurate about the time he was picked up.
After all, I can take judicial
notice that the Mthatha hospital is
less than a kilometer from where he alleged he was picked up.
There can be no dispute
about that.
[14]
An issue was made in argument as to whether the doctor who attended
to the plaintiff was male
or female and whether he spoke Xhosa or
not. I cannot fathom of what importance this issue is, as it has no
relevance to establishing
the truthfulness of the plaintiffs’
assertions. Based on this issue and related others the defendant
argued that the plaintiff
failed to prove his case “beyond a
reasonable doubt”. This is astonishing. The reason being
that the test is
not beyond reasonable doubt but balance of
probabilities. I find no reason to accept the submission that the
credibility of the
witness leaves much to be desired and highly
inconsistent in respect of the identification of the people who shot
at him. The plaintiff
remained resolute that he was shot at by the
members of the defendant and clearly identified them as stated above.
As aforesaid,
the perpetrators were seven meters from him and in
broad daylight.
[15]
It is doubtless that the plaintiff was shot at on 24 April 2018 with
a rubber bullet by the members
of the defendant. It is common cause
that he did sustain a rubber bullet injury on his thigh as confirmed
by the findings of the
doctor who treated him. I say a rubber bullet
wound because the doctor only picked up and treated a rubber bullet
wound on the
thigh and not on the buttocks as alleged by the
plaintiff. Had the plaintiff sustained a rubber bullet on the
buttocks, the doctor
would have noted that. It is apparent that at
the time the members of the defendant shot at the plaintiff, they
were acting within
the course and scope of their employment with the
defendant as they were trying to quell the violence which was
prevailing at the
time. In all probability the plaintiff was
not part of the protesters.
F.
Quantum
[16]
The amounts that are claimed by litigants against defendants
especially government departments
are leaving much to be desired.
Exorbitant, unsubstantiated amounts, with no basis at all, find their
way in the summons. Practitioners
have developed a habit of throwing
in and claiming huge unsubstantiated amounts. This matter is no
different. In Diljan v Minister
of Police
[2]
the SCA lamented the conduct of practitioners who fall foul of
this tendency as follows:
“
[20]
A word has to be said about the progressively exorbitant amounts that
are claimed by litigants lately in comparable cases and
sometimes
awarded lavishly by our courts. Legal practitioners should exercise
caution not to lend credence to the incredible practice
of claiming
unsubstantiated and excessive amounts in the particulars of claim.
Amounts in monetary claims in the particulars of
claim should not be
‘thumb – sucked’ without due regard to the facts
and circumstances of a particular case.
Practitioners ought to know
the reasonable measure of previous awards, which serve as a barometer
in quantifying their client’s
claims even at the stage of the
issue of summons. They are aware, or ought to be, of what can
reasonably be claimed based on the
principles and enunciated above.”
[17]
The plaintiff made averments in his particulars of claim which were
not established by the evidence
led. It is disturbing that even the
amount claimed is ridiculously high regard being had to the fact that
the plaintiff sustained
a rubber bullet wound on the thigh and was
treated and discharged from hospital. That on its own, speaks to the
less seriousness
of the injury sustained by him. For purposes of
completeness, it is essential that I should refer to the particulars
of claim as
they are in this regard. The relevant paragraphs read:
“
10.
As a consequence of the shooting, the
plaintiff sustained gunshot wounds on the right. He also
suffered
injury to his, dignity and
deprived of
his liberty and enjoyment of amenities of life
.
Accordingly, the plaintiff suffered general damages in the amount of
R1000 000.00 (One million rand) (sic)
Past
loss of earning capacity
11.
It is the plaintiff’s contention that between the dates of the
shooting to date, he has
not been able to return to work as a scholar
transport driver. Accordingly, he has lost past earnings in the
amount of between
R13000,00- R15000,00 (thirteen thousand rand) to
(fifteen thousand rand) per month. (sic)
12.
It is the plaintiff’s further contention that he
would have
working until he attained the age of 70 years:
he would have
continued to work as a scholar transport driver earning the amount of
R13,000 .00 (thirteen thousand rand) to R15,000
00 (fifteen thousand
rand per month and that his earning would have gradually progresses
with time and inflation (sic)
13.
Accordingly the plaintiff
has lost future earnings capacity in the
amount of R2000,000 .00 (two million rand)
(sic)
14.
The amounts claimed in respect of:
14.1. General
damages represent a fair and reasonable amount of damages suffered by
the plaintiff for discomfort shock, injury
to his person, dignity,
deprivation of liberty
,
deprivation of enjoying of
amenities of life,
humiliation, pain and suffering. It is not
reasonably possible to give a precise
amount for these various
issues but the amount accords with previous awards granted by this
court in cases of this nature.
(sic)
14.2 Past loss of
earnings resents a global figure that the plaintiff would have earned
per month from the date of the shooting
to the date of this summons
and will be
subjected to industrial psychological verification and
actuarial calculation
. As soon as the reports by
industrial psychologists and actuary are at hand, same will be
availed to the defendant’s
legal representatives. (sic)
…
.
16.
The plaintiff claims as against the
defendant:
16.1 Payment of
the sum of
R3015000. 00 (three million fifteen thousand rand)
(sic)
16.12 interest there on
at the mora rate payable 14 (fourteen) days from the date of
judgment:
16.3
Costs of suit, and
16.4
Further and or alternative relief.” (emphasis
added)
[18]
Contrary to what is stated in the particulars of claim about quantum,
all the plaintiff testified
to regarding it, was that he was unable
to work for a period of four months due to him being suspended and
that in the first two
months after the injury, he had to hire a
driver at a cost of R2800.00. The medical report shows an injury
which is 0, 5 centimeters
in length and 2 centimeters deep and
reflects that he was given brufen tablets and referred to a clinic
for further dressing of
the wound. It is not clear after how long the
wound healed. It cannot be disputed that he did suffer pain because
of the injury
and needs to be compensated for that. However, in the
absence of proof I am unable to find that he was suspended by the
department
for a period of four months.
[19]
Strangely, no evidence was led as to future loss of earning capacity
despite the huge amount
claimed. It is, therefore, inconceivable how
in paragraph 13 of the particulars of claim the plaintiff arrived at
an amount of
R2,000,000.00 bearing in mind that he did not sustain an
injury that rendered him incapable of working in future. It has not
been
established further that the plaintiff did not receive an income
for four months as no documentary evidence was proffered to
substantiate
that, taking into consideration, he had a contract with
the department. It was expected of the plaintiff to submit proof from
the
Department that he lost an income during that period. Based on
the evidence I am unable to find that the plaintiff did not work
or
receive an income for a period of four months.
[20]
The reason for my finding is that his vehicle was released the
following day by the police. Moreover,
he had to hire a driver for
two months, presumably because he was recovering. The
inconvenience, if at all to the children
he transported was only for
a period of a day. The circumstances that led to
the suspension of the contract for
four months have never been
explained by the plaintiff. Put differently the plaintiff did not
state any reasons why he was suspended
and had no income for four
months. Such information was crucial to the claim based on not being
able to work for four months.
His evidence reads: “It was
kept at Vela Municipality pound. They released the motor
vehicle. They said the contract
would be suspended. It
was suspended and prohibited from conveying the children for 4 months
after which it was re-instated.
I hired a driver because my leg
had not healed completely.” This talks to the police.
One wonders where did the
police get the power to suspend a contract
which was entered into between the Department and the plaintiff.
Furthermore,
on what basis did he hire a driver if the contract was
suspended.
[21]
The plaintiff alleged that he was remunerated for transporting school
children in an amount between
R6000.00 and R10 000.00 monthly.
He submitted his Nedbank bank statements for the period 24 July 2017
to 24 February 2018.
I hasten to mention that the plaintiff was never
taken through the bank statements to establish the money that came
from the department.
Suffice to state that there are deposits which
referenced “BASC37 EC: TRANS001124897”. The deposits made
under that
reference reflect an amount varing between R1438.41 dated
31 August 2017 and the highest is R11 900.00 dated 13 February
2018.
Other deposits with such reference varied between the two
amounts. No explanation was given by the plaintiff for such a
variation
in the amounts he received from the department for
transporting the children. This court was not taken to the relevant
period when
the plaintiff did not receive the payment. In other
words, the period of four months spoken to by the plaintiff was never
established.
Even if I were to accept that the plaintiff lost income
for four months, based on the statements I would not have been able
to
determine how much in actual rands the plaintiff would have lost
during that period as no evidence was led regarding how the amounts
were calculated and why they varied so much. Be that as it may, it is
my finding that the plaintiff failed to prove on a balance
of
probabilities that he lost an income for four months after his
injury.
[22]
As it can be gleaned from the cited particulars of claim above, under
the head General Damages
the plaintiff claims that he suffered
“injury to his dignity and was deprived of his liberty and
enjoyment of amenities of
life” These allegations are
concerning because the plaintiff was never deprived of his liberty
let alone losing amenities
of life. How, therefore, the plaintiff
makes such allegations is dumbfounding, to say the least. Let
alone how the
amount of R1,000,000.00 is arrived at.
[23]
Another disturbing feature is that the plaintiff is claiming an
amount of R2 000 000.00
for loss of earning capacity. How
on earth such an allegation is made escapes me. As aforesaid, there
is no semblance of evidence
to establish that the plaintiff lost
future earning capacity based on the injury which was on the thigh.
This speaks to the nonchalant
way in which these particulars of claim
were drafted. This conduct must be deprecated and nipped at the
bud. The sentiments
I expressed in the Diljan matter referred to
above find application in this matter. Huge amounts without merit
must not be claimed
by practitioners who are always guided by
previous awards made by our courts.
[24]
Having had regard to the matter, the only award the plaintiff is
entitled to is the general damages
in respect of pain and suffering
which he had to endure because of the injury on his thigh.
Considering the latter head of damages,
I am of the view that a sum
of R50,000.00 which has also been conceded and suggested by the
defendant would be sufficient to compensate
the plaintiff. It
is a reasonable amount.
G.
Costs
[25]
It is trite that costs should follow the results. That applies
to this matter. However,
the manner in which the plaintiff
attorneys handled the matter necessitates a re-look at the cost
order. This matter should
have been litigated at the
Magistrate’s court. But for the conduct of the
plaintiff’s attorney in claiming huge
amounts of money on heads
of damages which were not supposed to have been claimed in the first
instance, the defendant cannot be
mulcted with such costs at a High
Court scale on a matter which, properly construed, should have been
heard at the Magistrates
court. Therefore the costs shall be
awarded at the Magistrate’s scale.
[26]
Consequently I make the following order:
1.
The defendant is liable to pay the plaintiff an amount of R50 000,00
(fifty
thousand rand) for pain and suffering.
2.
Costs of suit at the Magistrates’ court scale.
M MAKAULA
JUDGE OF THE HIGH
COURT
Appearances
For the
Plaintiff
: Adv
Sintwa
Instructed by
:
S.
BOOI & SONS ATTORNEYS
Office
No. 3 Clublink Building
MTHATHA
For the
Defendant
:
Adv
Gumede
Instructed by
:
STATE
ATTORNEYS
94
Sisson Street
Fort
Gale
MTHATHA
Date heard
: 2
February 2023; 18,19, April 2023; 26,
28, 29 September
2023 and 27 October 2023
Judgment
delivered
:
11 June
2024
[1]
A
Report on Medical Examination by a Healthcare Practitioner.
[2]
(746
of 2021)
[2022] ZASCA 103
(24 June 2022)