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[2024] ZALMPPHC 131
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Resinga v Minister of Police (6878/2017) [2024] ZALMPPHC 131 (23 August 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO:
6878/2017
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
Naude-Odendaal J
DATE: 23/08/2024
In
the matter between:
MADYISA
CONFERENCE RESINGA
PLAINTIFF
And
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
Trigger Happy! The
Plaintiff instituted an action for delictual damages against the
Defendant arising from an unlawful and wrongful
assault and shooting
by a member of the South African Police Service (SAPS)
.
[2]
On 22 July
2017 at around 20h00pm at Nghomoghomo Village
,
near a certain
Van Roy
Tavern
,
the Plaintiff
,
an off-duty
police officer was shot and injured by a member of the Saselemani
SAPS. The police officer from Saselemani SAPS was
acting
in
the course and
scope of his employment and therefore the
Defendant
is
vicariously
liable for the actions of the police officer.
[3]
The Defendant
admitted the shooting of the P
l
aintiff
on 22 July 2017 by a member of the Saselemani SAPS
,
but however
pleaded that the shooting of the Plaintiff was justified in that
Warrant Officer M
.
A.
Chauke
,
in
private defence, shot the Plaintiff
.
[4]
The Defendant
further pleaded that the life of Warrant Officer M.A. Chauke and
other members of SAPS and community were in danger
posed by the
Plaintiff. It was further pleaded that the danger posed by the
Plaintiff was imminent and that the force applied by
the members of
the Defendant
,
was reasonable
and necessary under the circumstances to avoid a further threatened
attack by the Plaintiff.
[5]
The Defendant
further denied that the Plaintiff w
a
s
assaulted by a member(s) of SAPS.
PLAINTIFF
'
S
CASE:
[6]
Th
e
Plaintiff
a
nd
Mr. Hobyane N
e
phtaly
Hl
e
ng
a
ni
t
es
tifi
e
d
in
s
upport
o
f
the
P
laintiff
'
s
case
. T
he
Plaintiff's evid
e
nce
,
in summary
,
was
that
on the evening
of 22 July 2017
,
he
,
and his
fr
i
end
,
Mr. Hobyane
,
were coming
from a funeral at Kabelo Village. On their way back home to
Xiga
lo
Village, they
ended up at Nghomoghomo Village, near a certain Van Roy Tavern.
[7]
The Plaintiff
and Mr.
Hobyane were
near
the tavern
area around 20h00pm to take advantage of the lighting in the area
,
as they were
trying to hitch hike to Xigalo. It was late at night, however the
area around the tavern was well-lit and visibility
was clear.
[8]
According to
the Plaintiff, as they were walking
,
he was
suddenly shot on his leg without any warning by the police officer.
He fell to the ground and started crawling towards safety
at an RDP
House to take cover. As he was crawling
,
the police
members continued shooting. Another police officer suddenly
c
limbed
on top of the
Plaintiff and started assaulting him with fists. The community
members who gathered at the scene
there
at the RDP
House then informed the police officer on top of the Plaintiff, that
the Plaintiff was also a police officer.
[9]
According to the
Plaintiff
,
the
police officer on top of him introduced himself then as Chauke and
said that he is
also
a police
officer at Saselemani Police Station. According to the Plaintiff
,
Mr
.
Chauke then
asked
him for his
work card
,
he
informed
Mr.
Chauke
that
it was in his wallet in his back pocket. Mr.
.
Chauke
took out the Plaintiff’s wallet and found his work card
,
confirming
that indeed the Plaintiff was also
a
police
officer.
[10]
Neither the
Plaintiff
,
nor the police
officers from Saselemani Police Station were wearing uniforms. The
Plaintiff did have
his
service pistol
with him on the day
of
the incident,
but his firearm was not visible as
he
was wearing a
long jacket. He further stated that he did not discharge his firearm
on the date of the incident and therefore the
members of SAPS did not
have a reason to shoot him.
[11]
As a result of
the shooting
,
the Plaintiff
sustained an open gunshot wound to
his
left thigh and
left knee
,
a
fracture to his left leg femur and multiple assault wounds to his
head and face.
[12]
The Plaintiff
further testified that his service pistol was confiscated on the day
of the incident and returned to him by SAPS
,
after some
investigations. He was however never charged, disciplined
,
or punished by
his employer
,
SAPS, for
unlawful discharge of a firearm relating to the present incident.
[13]
The Plaintiff
testified further, that Mr
.
Hobyane did
not have a firearm in his possession on the day
of
the incident.
[14]
The
Plaintiff’s second witness was Mr. Hobyane. Mr. Hobyane
testified that on the evening of the 22
nd
of
July
2017,
he
and the Plaintiff were
coming
from a funeral
at
Kabelo
Village
.
On their way
back home to
Xigalo
Village
,
they ended up
at Nghomoghomo
Village,
near
a
certain
Van
Roy Tavern
.
He and th
e
Plaintiff wer
e
near the
tavern area around 20h00pm to take advantage of the lighting in the
area, as they were trying to hitch hike to Xigalo.
[15]
According to
Mr. Hobyane
,
immediately
upon arrival at the area
,
a double cab
bakkie, an unmarked Amarok
,
arrived. Two
male persons alighted from the vehicle. They were armed and holding
their firearms. Upon seeing the male persons with
the firearms
,
Mr. Hobyane
ran away into Van Roy Tavern. As he entered Van Roy Tavern, he
suddenly heard gunshots being fired.
[16]
According to
Mr. Hobyane
,
the male
persons did not give any indication that they were police officers
,
they did not
at any stage tell them to lift their hands in the air and neither he
,
nor the
Plaintiff provoked them in any manner whatsoever.
[17]
Mr. Hobyane
also testified that he does not have a firearm
,
does not have
a firearm license and did not have any firearm on him on that
evening.
[18]
Mr
.
Hobyane
testified that after he heard the gunshots being fired
,
he saw people
running towards the direction where the Plaintiff went to take cover.
When he arrived there
,
he saw a
person stepping on the Plaintiff’s chest. He was assaulting the
Plaintiff
.
The
person was not wearing any uniform
.
Mr. Hobyane
testified that some of the community members there then said to this
person that the Plaintiff is also a police officer.
The person
stopped assaulting the Plaintiff.
[19]
Th
e
Plaintiff
was injured
.
H
e
was tak
e
n
to ho
s
pital
by ambulance. Mr
.
Hobyane
accompanied the Plaintiff in the ambulance to hosp
i
tal
together with a police officer.
The
police officer later took Mr. Hobyane home
.
Mr. Hobyane
was never charged or arrested for any offence relating to the
incident.
DEFENDANT'S
CASE:
[20]
Mr. Tsenane
,
Warrant
Officer M.A. Chauke and Constable R.R. Chauke testified on behalf of
the Defendant.
[21]
Mr. Tsenane
testified that he is employed at Saselemane Police Station as a
gardener. He testified that, on the day in question
when he was
entering Eden Valley Tavern
,
two ladies
approached him and informed him that there are two men that are
i
n
possession of a firearm
,
he then called
Saselemane Police Station to report the incident.
[22]
Mr. Tsenane
testified that he identified the two male persons and saw that one of
them was carrying a firearm on his left side.
He only saw one person
in possession of a fi
r
earm
.
He did not
approach the two gentlemen and did not say anything to them. He
immediately went to call the Saselemane Police Station
.
He was
informed that a Police Vehicle is on its way
.
[23]
M
r
.
Tsenane testified that when the police vehicle arrived
,
he got into
the vehicle and they went after the taxi in which the two gentlemen
boarded
.
They
couldn't find the ta
x
i
,
but a
s
th
e
y
turned le
ft
at
som
stage
a
t
a
T
-
jun
c
tion
,
th
e
y
saw
t
he
two gentlemen. They travelled to th
e
left direction
and passed the two gentlemen. They went to stop at the tavern where
there was better light and waited for the gentlemen
to
enter their
,
because they
anticipated that they would enter
the
tavern after
coming from another tavern.
[24]
Mr
.
Tsenane
testified
further that the driver of the police vehicle parked the vehicle to
face
in
the direction of where the two gentlemen were. He pointed the
two
gentlemen out
to the police officers in the vehicle
,
then alighted
the vehicle and left. As he alighted from the vehicle, the police
officers also alighted from the vehicle. As he was
leaving
,
he suddenly
heard a gunshot being fired. He got scared and ran away. He stopped
after a short distance and went back to go and look
what was
happening after he heard the community gathering there near an RDP
House.
[25]
Mr. Tsenane confirmed
that both the Plaintiff and Warrant Officer Chauke were shot. Mr.
Tsenane further
confirmed
that the
police officer who accompanied Warrant Officer Chauke also
ran
away,
he was
however in possession of a R5-Rifle.
[26]
Under
cross-examination,
Mr. Tsenane
said that these two women who complained to him, was not known to
him
.
He
did not even
know
their names.
He further stated under
cross-examination
that they only
said to him that
"
they
have seen somebody who is in possession of a gun
",
nothing more.
There was no pointing of a firearm
.
The person was
carrying the firearm at his groin area.
[27]
Mr. Ts
e
nan
e
further
under
cross
-examination
testified that there was no
altercation
between the
police officers he was with and the two gentlemen he identified.
He
didn
'
t
hear anything except for the sudden gunshot as he left. He did not
hear
any
instructions
by the police officers either
,
only a sudden
gunshot.
[28]
The Defendant
called Warrant Officer M
.
A.
Chauke (W/O Chauke) as its
second
witness. W/O
Chauke testified that he was on duty on the day in question when
he
was requested
to attend to an incident at a tavern where two men were
in
possession of
a firearm and threatening women
.
W/O Chauke was
in possession of his service pistol. He attended to the complaint
together with Constable R.R. Chauke who was in
possession of a R5
Rifle. When they arrived at the tavern
,
Mr. Tsenane
,
who called the
station about the complaint, informed them that the
two
male persons
(the Plaintiff and Mr. Hobyane)
,
just left by a
taxi. They assumed that since the two male persons were at a tavern
drinking
,
they
might be going to the next nearby tavern
.
They requested
Mr. Tsenane to accompany them to identify the two suspects.
[29]
W/O Chauke
testified that they first met the Plaintiff and Mr
.
Hobyane on the
road and Mr. Tsenane identified them. As Mr. Tsenane identified them
,
they could see
the firearm on Mr. Hobyane
'
s
groin
.
They
then decided to stop at Van Roy
Tavern's
gate as there
was better visibility with the lighting there coming from the tavern.
[30]
When the Plaintiff
and Mr. Hobyane approached Van Roy Tavern's Gate, they got out of the
vehi
c
le
and informed them loudly that th
e
y
ar
e
the
poli
c
e
and they wanted to conduct a search
.
According to
W/O Chauke, Mr. Hobyane complied by raising his hands and laid on the
ground
,
however
,
as Chauke R
.
R
.
was about to
search Mr.
Hobyane
,
the Plaintiff
quickly took out his
firearm
and started
shooting towards them and shot him on his right femur and he fell to
the ground. As he was on the ground, he then retaliated
by shooting
the Plaintiff on his left femur. After the
Plaintiff
got
shot
,
he crawled on
the ground towards the nearby shack.
[31]
W/O Chauke
testified that Constable R.R. Chauke ran from the scene and dropped
his rifle on the ground
.
Constable R.R.
Chauke never fired any shot.
[32]
The third and last
witness for the Defendant was Constable R.R. Chauke. Constable Chauke
testified that he was on duty on the day
in question. They received a
call from Mr. Tsenane
,
informing them
that two women had complained to him about two men
,
one of whom
was carrying a gun and threatening them.
[33]
Constable
Chauke then booked out a R5 rifle with 10 live ammunition rounds,
which was recorded in the firearm register and on the
occurrence
book. The occurrence book and the register recorded that he booked
out the rifle and 10 live rounds
,
as well as
that the 10 live rounds of ammunition and R5 rifle was returned
.
[34]
Constable
Chauke
further
testified that Mr. Hobyane
complied
with his
request
to
search him. He
raised his hands and when
he
was requested
to lie
on
the
ground
,
he
did
so
.
[35]
Constable
Chauke
testified that
the Plaintiff fired a
shot
towards them
as
he
was about to search Mr. Hobyane
,
he
then
dropped
his
rifle and fled the scene.
Constable
Chauke confirmed that they were not threatened by the gentlemen (the
Plaintiff and Mr
.
Hobyane) in
any way whatsoever, he also stated that they (he
and
W/O Chauke)
did not threaten the Plaintiff and Mr. Hobyane.
THE
LAW AND APPLICATION OF THE LAW:
[36]
In the present matter
,
the shooting
of the Plaintiff was not denied, although the subsequent assault was
denied by the Defendant. The Defendant raised
selfdefence as an
excuse or justification for the shooting of the Plaintiff. The
Defendant bore the onus in respect of the
defence or justification
raised
.
In
order for the Defendant to succeed with the defence raised
,
the Defendant
had to plead and prove:-
(a)
a real or
threatened attack by the Plaintiff.
(b)
reasonable
grounds for believing that the defendant was in physical danger;
(c)
that the force
used was necessary in the circumstances to repel the attack and
commensurate with the Plaintiff’s aggression.
(See
Mabaso
v Felix
[1981] 2 All SA 306
(A),
1981 (3) SA 865
(A) p 874
and
S v
Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC),
1995 (3) SA 391
(CC) para. 138.)
[37]
A person, acting out of necessity may lawfully inflict harm on
another. The danger must exist
or be
imminent
,
and there must
be no reasonable means of averting the danger except by
inflicting
harm
.
The means and
measures must not be excessive, having regard to
all
circumstances
of
the
case.
Whether
a
situation
of
necessity existed is a factual question which must be determined
objectively
.
(See
Petersen
v Minister of Safety and Security
[2010] 1 All SA 19
(SA).)
[38]
In the present
matter
,
there
are two mutually destructive versions of the incident,
and
more
specifically
,
who shot
,
and who shot
first. The Defendant did not dispute
or
challenge the
evidence of the Plaintiff or Mr
.
Hobyane that
the Plaintiff was
further
assaulted by
fists after the shooting
,
whilst
lying
on the ground.
This was
only
denied in the
Defendant's plea.
[39]
The question
is which one of the two versions in respect of the shoo
t
ing
should be accepted
.
In
Stellenbosch
Farmers
'
Winery
Group Ltd and Another v Martell and Others 2003 (1) SA (SCA) 1 at [5]
Supreme
Court of Appeal held as follows
:
"[5]
On the
central
issue,
as
to
what the parties actually decided, there are
two
irreconcilable
versions.
So
too
on
a
number
of peripheral areas of dispute which may have
a
bearing on the
probabilities. The technique generally employed by courts
in
resolving
factual
disputes of this nature may conveniently be summarised as
follows.
To come to a
conclusion on the disputed issues a court must make
findings
on (a) the
credibility of the various factual witnesses
;
(b) their
reliability; and (c) the
probabilities
.
As to (a), the
court
'
s
finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness
.
That in turn
will depend on a variety of subsidiary factors
,
not
necessarily
in
order of importance, such as (i) the witness
'
s
candour and demeanour
in
the
witness-box
,
(ii) his bias
,
latent and
blatant
,
(iii) internal
contradictions in his evidence, (iv)
externa
l
contradictions
with what was pleaded or put
on
his behalf, or
with
established
fact
or with
his own extracurial statements or actions
,
(v) the
probability or
improbability
of particular
aspects of his version
,
(vi) the
calibre and cogency of his performance compared
to
that
of
other witnesses testifying about the same incident or events. As to
(b)
,
a
witness
'
s
reliability will depend
,
apart from the
factors mentioned under (a)(ii)
,
(iv)
and
(v) above
,
on (i) the
opportunities he had to e
x
perience
or observe
the
event
in
question
and
(ii)
the
quality
,
integrity
and
independence of his recall thereof. As
to
(c)
,
this
necessitates
an analysis
and evaluation of the probability or improbability of each party
'
s
version on each of the disputed issues
.
In the light
of its assessment of (a)
,
(b) and (c)
the court will then
,
as a final
step
,
determine
whether the
party
burdened with
the onus of proof has succeeded in discharging it
.
The hard case
,
which will
doubtless be
t
he
rare one, occurs
w
hen
a
c
ourt
'
s
credibility findings compel it in one direction and its evaluation
o
f
the general probabilities in another. The more convincing
the
former
,
the less
convincing will be the latter.
But
when
all
factors are
equipoised probabilities prevail
.
"
[40]
I deal
with
an
evaluation
of the
evidence
and
witnesses
,
as
follows
:
-
40.1
The
Plaintiff:
(a)
The Plaintiff
and
Mr.
Hobyane,
corroborated each
other in
respect of their movements of the evening
of
the incident.
The
Plaintiff
confirmed that he had his service pistol on him at his
waist
and that Mr.
Hobyane
did
not have any
firearm
on
him
.
(b)
The Plaintiff
did
not contradict
himself
in
examination
in
chief,
or under
cross-examination.
(c)
The Plaintiff
maintained throughout the trial that he never threatened any person
with his firearm, not the two women at the tavern,
nor
at
the scene
of the incident. This, however only during
cross
examination,
was confirmed by Mr. Tsenane. Mr. Tsenane testified that the women,
(who are unknown to him) informed him that there
was a male in
possession of a firearm. Mr. Tsenane further testified that he only
saw the firearm on the person of the Plaintiff
where
the
Plaintiff had
it towards his groin area.
(d)
In respect of the
scene of the incident
,
the Plaintiff
,
Mr. Hobyane
and
Mr.
Tsenane corroborated each other in that the Plaintiff and Mr. Hobyane
testified that W/O Chauke and Constable Chauke did not
arrive in a
marked police vehicle, they did not wear uniform and at no stage did
they inform the Plaintiff or Mr. Hobyane that
they were police
officers. Mr. Tsenane in corroboration also confirmed that when W/O
Chauke and Constable Chauke alighted from
the vehicle, they were in
possession of firearms, and in respect of Constable Chauke a R5
rifle. Mr. Tsenane immediately left the
scene and moved away for
about 10 to 12m. He suddenly heard gunshots being fired. He didn't
hear
anything
else except for the sudden gunshots
.
Mr
.
Tsenane
'
s
version confirms the Plaintiff
and
Mr. Hobyane's
version that W/O Chauke and
Constable
Chauke
never
introduced themselves
as
police
officers and never shouted that the Plaintiff and Mr. Hobyane must
raise their
hands
or asked for permission to search them
,
as per the
versions of W/O Chauke and Constable Chauke.
(e)
What remains a
mystery is however the fact that the Plaintiff testified that he
never fired any shot from his firearm and Mr. Hobyane
did
not
have
a
firearm in his possession. Furthermore
,
it is common
cause that
Constable
Chauke
never
fired a shot from
the
R5 rifle
.
Wh
o
then
shot
W/O Chauke?
(f)
If
I
take into
regard the Plaintiff's candour and demeanour in
the
witness-box
,
the
Plaintiff
was a very consistent
,
calm and
collected witness
.
There were no
bias, latent and blatant
,
internal
contradictions
in
his evidence
.
The only
external contradiction with what was pleaded or put on his behalf, or
with established fact or with his own ex
t
racurial
statements or actions, was that
in
his statement
he stated that he
was
assaulted by
bricks
,
whist
in court he only testified
to
an assault by
fists.
His
injuries
however, remained consistent.
(g)
I find the
Plaintiff's version and/or recollection of the
e
vents
that gave rise
to the shooting incident probable in that it was al
r
eady
established that the Defendant's members arrived
in
an unmarked
vehicle
,
they
were not
wearing uniform
,
they alighted
heavily
armed
and s
udd
e
nly
a shooting
started without any forewarning heard or identification by
them,
as also
confirmed by Mr
.
Tsenane
.
It
was
also not disputed that
the
Plaintiff crawled away to an
RDP
house to seek
cover
and
that he was then assaulted there by another member of the Defendant
until the community
intervened
and
said
that he was
also a police officer
.
His injuries
sustained
,
is also
consistent
with the
description of the assault and the fact that he
was
shot.
40.2
Mr
.
Hobyane:
(a)
Without
repeating what
was already
stated
here
above, it
needs to
be
said that
Mr.
Hobyane
,
although
he
did not appear as
confident
in
the witness
box as
the
Plaintiff
,
gave a clear
recollection
of
the
events
of
the evening
.
He
did
not
contradict
himself in
any
material
aspect.
His
version that
he ran away
and
later
returned was
also confirmed by
the
Plaintiff
,
W/O Chauke and
Constable Chauke. It
was
also confirmed
by the
Plaintiff
that
Mr
.
Hobyane
did
not
have a firearm in his
possession
.
In
this
regard
,
a
firearm was never
recovered
from Mr.
Hobyane
or
in
the
area and
Mr.
Hobyane
was
never
charged
after the shooting
inc
ident
with any
offence.
He
was
only taken
home.
(b)
Mr. Hobyane did not
exaggerate in his
r
eco
llection
of the
eve
nt
s,
nor in respect
of the assault meted
out
against
the
Plaintiff.
Although
Mr
.
Hobyane
was
not
too good
with
estimation
of
distances
,
his
miscalculation
or
uncertainty
cannot
in
any way be ascribed to dishonesty or evasiveness
.
Mr. Hobyane
was a
very
reliable and
consistent witness and did
not
change his
version under cross-examination. He
r
emained
firm
in
his
answers and
recollection of the unfolding of
events
of
the
night of
the
incident.
40.3
Mr.
Tsenane
:
(a)
Mr. Tsenane
contradicted himself in various
material
aspects during
his evidence in chief and cross-examination. At first
,
he testified
that two women approached him and complained that they were be
i
ng
threatened by two males with firearms
,
later, under
cross-examination
,
he stated that
two women approached him and said they saw a male person
in
possession of
a firearm - nothing about both males being in possession
of
firearms and
nothing about the
males
threatening
the women with the firearms. The male person
was
simply in
possession of a firearm
,
that's it.
(b)
Mr.
Tsenane
further
contradicted
himself in
that under
cross
examination
,
the two women
were
not known
to
him. He
assumed they knew him
,
but he
did
not know them
or
could remember
them.
(c)
In examination
in chief
,
Mr.
Tsenane testified that both
males
(the Plaintiff
and Mr. Hobyane) were in possession of firearms
,
however under
cross-examination, he testified that only
the
Plaintiff was
in possession of a firearm
.
(d)
What I find
strange from the evidence of Mr. Tsenane was the fact that he
accompanied the members of the Defendant all
the
way in order
to assist them to find two male persons
,
of whom one
was simply in possession of a firearm, but the moment they arrived at
the scene, he alighted the vehicle and summarily
left. It is strange
that he did not remain in the vehicle
,
or remain at
the scene
,
but
without anything being said and happening
,
he
out
of his own accord simply left.
(e)
I find it
further strange that Mr. Tsenane
,
prior to
anything happening or any imposing danger
,
decided to
flee to safety. Mr. Tsenane himself testified that he did not hear
anything before the gunshots
,
there was only
gunshots after he
left.
There was not
altercation the police or anybody and he did not hear any
instructions by the Defendant's members either, he was however
only
10 meters away from the in
c
ident.
(f)
Mr.
T
se
n
ane's
evidence appeared
t
o
be bias i
n
favo
ur
of
th
e
Defe
n
dant's
members. It appeared from his ev
i
dence
t
h
at
h
e
knew who shot
the first shot, but did not want to testify to
that
effect in
court. Mr. Tsenane had numerous internal contradictions in
his
evidence
,
as well as
external contradictions.
(g)
I find it
highly improbable that a person would form
the
onset, without
any altercation or
threat
alight from a
vehicle and
start
fleeing. I
find it further
highly
improbable
that a person who were about 10m away from the scene, did not hear
from which direction the first shot was fired and
did not hear
whether there was any instructions shouted by the members of the
Defendant.
Mr.
Tsenane's evidence leaves much to be desired and in my view should be
approached with caution.
40.4
W/O Chauke:
(a)
W/O Chauke
testified that Mr. Tsenane pointed out that the one in possession of
a firearm, was the
one
dressed in a
black T Shirt
and
Black Trouser.
It was
clear
from the
initial evidence of W/O Chauke and Mr. Tsenane that only one
of
the males were
in possession of a firearm. W/O
Chauke
testified that
he saw the firearm as it was in the person's trouser
at
his groin
.
It was only
later, that the Defendant's version
changed
to now
suddenly both males being in possession of a firearm.
(b)
W/O Chauke
testified that he alighted from the vehicle and shouted very loudly
to the two male persons that they are the police
and they were
requesting permission
to
search them.
This is in contradiction
to
the version of
the Plaintiff, Mr. Hobyane and Mr
.
Tsenane. Even
Mr. Tsenane for the Defendant said he did not hear anything.
(c)
According
to
W/O
Chauke,
these two male
persons
were
only 5
to
6
meters from
them
.
He
testified under
cross-examination
that he might
have discharged his
firearm
three times
.
(d)
Although
I
can
'
t
find that
W/O
Chauke
materially
contradicted
himself
,
it is
clear
that
there is
a
contradiction
between
his version and
even
the version
of
Mr. Tsenane
,
who testified
for
the
Defendant.
(e)
I
find
W/O Chauke
'
s
version
improbable
that
he
alighted
from
the
vehicle
and
immediately
shouted to the
Plaintiff and
Mr
.
Hobyane
that
they
are
police and wanted permission
to
search
them.
It
is
clear
from the testimony of the
Plaintiff
,
Mr.
Hobyane
and Mr
.
Tsenane
,
that
a
shooting immediately ensued.
(f)
I find
it
improbable
that
the
Plaintiff
,
had
he
known
W/O
Chauke and Constable Chauke were police
officers,
would
have
immediately
open fire without any forewarning
,
especially
being a police officer himself. It is clear from the evidence that
the Plaintiff and Mr. Hobyane were minding their own
business and
peacefully unaware of the Defendant
'
s
members
,
until
they alighted heavily armed
.
The Plaintiff
was not even aware that the Defendant's members were police officers
until after the shooting when the community came
to his rescue and
informed the member who assaulted the Plaintiff that the Plaintiff
was also a police officer.
(g)
I find it
further very improbable that had the Plaintiff opened fire as per the
evidence of W/O Chauke
,
he was not
charged or any disciplinary steps were taken against the Plaintiff
.
(h)
I find it
further very unlikely that Mr
.
Tsenane
,
without any
word being uttered or any confrontation
,
summarily
moved away to safety immediately before the shooting started
.
In all
probability
,
Mr
.
Tsenane knew
that something is
a
bout
to happen.
40.5
Constable
Chauke
:
(a)
Con
s
t
a
ble
C
hauke
'
s
versi
o
n
to
a
g
rea
t
ex
t
e
nt
wa
s t
h
e
s
am
e
a
s
W
/
O
Chauke
'
s
version. However, his version as to how they shout
e
d
that they were the polic
e
an
d
how Mr.
Hobyane
complied
and lay on the ground under Constable Chauke
'
s
control does no
t
correspond
with the timespan in wh
i
ch
the
shooting
started
.
Mr
.
Tsenane
testified that he immediately alighted from the vehicle when the
Defendant's member
'
s
alighted and moved away
,
he did not
hear anything
.
When he was
about 5 to 6m away
,
the shooting
summarily started.
Five
to Si
x
meters is not
far from the vehicle and a short distance which can be crossed in
mere se
c
onds
.
(b)
If the even
t
s
unfolded as per Constable Chauke
'
s
vers
i
on
,
the shooting
could not have started almost immediately
.
Mr. Tsenane
would have been
f
urther
away by the t
i
me
th
e
shooting
s
t
art
e
d
.
(c)
In my view,
Constable
Cha
uke
and W/O Chauke
adapted
their
versions of
what really transpired at the scene and the
only
reason
a
person would
d
o
that
is
because the
trut
h
might
not
be favourable
to their
defense
.
[41]
As
a
final step
,
the court has
to determine
whether
the Defendant
burdened
with
the
onus
of proof has succeeded in
discharging
it.
In
Ndlovu v
Minister
of
Police and a related
matter
[2022]
JOL
53977
(MM),
the court
held that the defendant
bore
the onus
of
proof in
respect
of
the
claim of the
first plaintiff
.
On the facts
befo
r
e
the court
,
without
making
a finding as to credibility of any of the witnesses
,
the court
found
that
the
version of the first plaintiff
was
more probable
than that of the defendant. The defendant, therefore, failed
in
discharging
the
onus resting
on the police
to prove on a preponderance of probabilities
that
the shooting
of the first plaintiff was justifiable.
[42]
In
Koster
Kooperatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorwee en
Hawens
1974 (4) SA 420
(W)
it
was
stated
by
Coetzee J:-
"..
.Where
there are no probabilities
-
where
,
for
instance
,
the
factum probandum was whether a particular thing was white or black
,
with
not the slightest evidence as
to
the
preponderance of white or black things in that particular community
,
there
are clearly no
probabilities
of any
sort
.
And
when the testimony of witnesses in
conflict
,
the
one
merely saying the thing was white and
the
other
black
,
it does
not
matter
logically
what the measure of proof is
,
whether
it is on a balance of probabilities or beyond reasonable doubt.
The position is simply that there is no proof, by
any criterium
,
unless
one is satisfied that one witness
'
evidence
is true and that of
the
other
is false.
"
[43]
On
the
facts
before
me
,
I
am able
to
find
that
the version of
the Plaintiff is
more
probable
than
that
of
the
Defendant
,
wherefore I
find that the Defendant did
not
succeed in discharging the
onus
resting on it to prove on a preponderance
of
probabilities
that
the shooting of
the
Plaintiff was
justifiable.
[44]
In
my view
,
the evidence
did not establish that the Plaintiff was indeed attacking
W/O
Chauke and
Constable Chauke
,
and
a
reasonable person would
not
have believed that
the
members of the
Defendant's
lives or
bodily integrity
was
in
imminent
danger. The
evidence by
Constable
Chauke was
that
the
Plaintiff's
firearm
was
in his pants at
his
groin
.
He
did
not threaten
them
,
neither
did
Mr.
Hobyane
.
Mr. Tsenane
testified that he heard nothing before the gunshots
,
completely
nothing
,
there
were only the gunshots
.
He confirmed
that
there
was
no
altercation between the Plaintiff and Mr
.
Hobyane
and
the
members of
the
Defendant.
He also did not hear any
instructions
whatsoever
shouted
to the
Plaintiff
and
Mr. Hobyane by
the members of the
Defendant.
[45]
The
overwhelming
probability
is that W/O Chauke
,
whilst being
predisposed
as
to
the
situation
that
they could
be
facing
,
overreacted
when shooting
the
Plaintiff
and
therefore,
having
been
in the vehicle
with
the members
of
the
Defendant
,
Mr. Tsenane
,
immediately
alighted and
moved
away
to
safety.
[46]
In
my
view
,
the
Plaintiff managed to prove the
requisite
elements to
sustain
a
claim
of
delictual
liability
against the Defendant
,
i.e. a
negligent act by the Defendant
and
that such negligent
act
caused
the
Plaintiff an
injury. The Plaintiff's claim
must
therefore
succeed.
[47]
As a general
rule
,
costs
follow the result. There
is
no
reason
to deviate in
the present
matter
from
the general rule.
ORDER
:
[48]
In the result
,
I
t
he
r
efo
re
ma
k
e
the following order
:
-
1.
The Defendant
is held 100
%
liable for the
damages that the Plaintiff might be able to prove
,
suffered in
consequence of him being shot and assaulted by members of the
Defendant.
2.
The Defendant
is ordered to pay the Plaintiff's costs
.
M. NAUDЀ-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON
:
16
-
17
APRIL 2024
HEADS
OF ARGUMENT FILED
:
30 APRIL 2024
JUDGMENT
DELIVERED
ON
:
23 AUGUST 2024.
This
judgment was handed down
electronically
by
c
i
rculation
to the parties
'
representatives
by email. The date
and
time
for
hand-down
of
the
judgment is deemed to be
23
AUGUST 2024 at 1
0H00
FOR
THE PLAINTIFF
:
Adv
.
R.T
.
Ramash
i
a
INSTRUCTED
BY
:
Ntiyiso
Mathebula
Attorneys
C
/
O
MQ Ramai
l
a
Attorneys
Polokwane
ntiyisomathebula1@gmail.com
advocate@ramashia.co.za
tlouramashia@gmaiI.com
FOR
THE DEFENDANT
:
Adv.
N
.
R.
Choeu
INSTRUCTED
BY
:
The
State
A
ttorney
:
Polokwane