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[2020] ZASCA 109
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Phakula v Minister of Safety and Security (454/19) [2020] ZASCA 109 (23 September 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 454/19
In
the matter between:
THABANG
PHAKULA APPELLANT
and
MINISTER
OF SAFETY AND SECURITY RESPONDENT
Neutral
citation:
Phakula
v Minister of Safety and Security
(Case no 454/19)
[2020] ZASCA 109
(23 September 2020)
Coram:
PETSE DP, MOCUMIE, and DLODLO JJA and
EKSTEEN and POYO-DLWATI AJJA
Heard
:
18 August 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website, and release to SAFLII. The time and date for
hand down are deemed to be at 10h00 on 23 September
2020.
Summary:
Delict –
claim for damages – arrest without warrant – use of force
to effect arrest and allegedly prevent appellant
from fleeing –
whether shooting, arrest and detention lawful – shooting,
arrest, detention and assault inextricably
linked – separation
of issues inappropriate – matter remitted to the high court for
retrial on all issues before a
different judge.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Tuchten J sitting as court of
first instance):
1 The appeal is upheld with costs.
2 The order of the high court is set aside.
3 The matter is remitted to the high court, differently
constituted, for re-trial on all the issues.
JUDGMENT
Mocumie
JA (Petse DP, Dlodlo JJA and Eksteen and Poyo-Dlwati AJJA concurring)
[1]
This is an appeal
against the judgment of Tuchten J sitting in the Gauteng Division of
the High Court, Pretoria (the high court),
in terms of which the high
court dismissed the claims of Mr Thabang Phakula, the appellant (the
plaintiff), for his unlawful shooting,
arrest and detention, and
assault by members of the South African Police Services (SAPS), who
were under the executive authority
of the Minister of Safety and
Security, the respondent (the defendant). The third to tenth
defendants were the police officers.
For convenience, the parties
will be referred to as in the high court. The appeal is with the
leave of the high court.
[2]
On 26 October 2010, at
around 18h30 or 19h00, the plaintiff was shot by members of a special
task force of more than six police
officers, on the allegation that
he was part of an armed gang that had conspired to commit robbery
with aggravating circumstances
at the private residence of Mr Mahomed
Ameen Bhamjee (Mr Bhamjee) in Die Heuwel, Witbank. The plaintiff was
arrested and detained
from that date. He appeared in the regional
court on charges of attempted murder and robbery with aggravating
circumstances. On
11 November 2011 he was found not guilty and
discharged due to lack of evidence. By then, the plaintiff had been
in custody for
some 11 months pending the finalisation of his trial.
[3]
As a consequence of the
shooting, the plaintiff was left with multiple wounds in both his
legs and shoulder, disfigured and physically
impaired. He also lost
two teeth. As a result of the injuries sustained, the plaintiff was
found to be medically unfit to resume
work as an army officer in the
South African National Defence Force. He subsequently instituted
action proceedings against the
defendant in which he claimed damages
arising from the shooting incident and for his subsequent arrest,
assault and detention.
[4] The particulars of claim
alleged that on 26 October 2010 the members of SAPS went into the
street and fired shots at the plaintiff
and, as a result, he
sustained multiple gunshot wounds in both his legs and shoulder. It
is further alleged that:
‘
4 During the arrest
of the [plaintiff], while lying on the ground and in full view of the
SAPS members, [one of the police officers]
[viciously] kicked the
[plaintiff] all over his body and face . . . The arrest was unlawful
in that it did not comply with the
provisions of the criminal law of
the Republic of South Africa relating to arrests without a warrant of
arrest and it violated
[the plaintiff’s] right as contained in
Sections 12 and 35 of the Constitution Act 108 of 1996.
5 Subsequent to the arrest the [plaintiff] was unlawfully detained
with aggravating circumstances at Klipfontein Police Station
at the
instance of the aforesaid members of the South African Police
Services. For two (2) months before being transferred to Paxton
prison. The detention was with aggravating circumstances in that the
Plaintiff was injured and kept in detention for more than
ten (10)
months without receiving proper medical attention of his choice.’
[5] In its amended plea the defendant alleged:
‘
3.3 When confronted by the police, some of
the robbers opened fire towards the police which prompted the police
to open fire in
return.
3.4 Plaintiff attempted to flee from the scene. In
an attempt to arrest him and in the circumstances where it was clear
that the
[plaintiff] could not be arrested without the use of force,
the fourth defendant fired several shots towards [the] plaintiff in
order to prevent him from fleeing
3.5 The fourth defendant believed on reasonable grounds:
3.5.1 that the use of force was immediately
necessary because the offence for which the plaintiff was sought to
be arrested was
in progress and was of a forcible and serious nature
and involved the use of life threatening violence or a strong
likelihood that
it will cause grievous bodily harm because the
suspects referred to above were heavily armed with inter alia
firearms
3.6 In the alternative to the above, the fourth
defendant believed that the force was immediately necessary for the
purpose of protecting
himself and other defendants who were at the
scene from imminent or future death or grievous bodily harm that
could have been caused
by the [plaintiff] and his fellow robbers
3.7 Further alternatively, there was a substantial
risk that the [plaintiff] would have caused imminent or future death
or grievous
bodily harm if the arrest was delayed.’
[6] Pursuant to the defendant’s plea, the
plaintiff amended his particulars of claim to read:
‘
3
Claim A
3.1 On the 26
th
October 2010 at about 20h05 and at Woltemade street Die Heuwel,
Witbank, Mpumalanga Province, the [plaintiff] was unlawfully shot
several times and assaulted by GERT PETER KOCK DE KLERK a member of
the South African Police.
3.2 As a result of the aforesaid multiple gunshot[s] the [plaintiff]
sustained the following severe gunshot wounds:
3.2.1 on the left lateral proximal lower leg
3.2.2 on the left distal thigh
3.2.3 on the right medial mid-thigh and right hip
3.2.4 further gunshot wounds on the right lateral
and posterior proximal arm.
3.3 As a result of the aforesaid assault the [plaintiff] sustained
the following injuries:
3.3.1 Broken tooth on the left lower jaw
3.3.2 Broken tooth on the right lower jaw.
4 Particulars of the nature and extent of these
injuries sustained by the [plaintiff] were set out in the Medico
Legal report of
[Dr] A [Tony] Birrel.
5 The aforesaid GERT PETER DE KOCK was at all
material times acting in his capacity as member of the South African
Police Services
and he was acting within the course and scope of his
duties.
6 As a result of the gunshot wounds sustained by the [plaintiff]:
6.1 He was hospitalized at Witbank Hospital from 26
th
October [to] 14
th
December 2010.
6.2 Suffered loss of income
6.3 Will suffer loss of income
6.4 Has been disfigured and disabled
6.5 Will undergo further medical treatment
6.6 Suffered loss of amenities of life
6.7 Particulars appear from the report of Dr BIRREL and Dr LEON.
. . .
9 The [respondent] is vicariously responsible and
liable for the damages sustained by the [plaintiff] in consequence of
the actions
by the fourth defendant.
10
Claim B
10.1 On the 26
th
October 2010 at 20h05 the aforesaid defendants at Woltemade Street,
Die Heuwel, Mpumalanga,
arrested the
first plaintiff without a warrant of arrest
.
Subsequently the first plaintiff was taken to Witbank Hospital under
the guard of the aforesaid defendants.
10.2 Thereafter at the instance of the aforesaid
police official.
The plaintiff was
detained at Klipfontein Police Station and subsequently at Paxton
Prison from the 14
th
December to 11
th
November 2011 – for thirteen [13] months without bail
.
10.3 On 11
th
November 2011 the plaintiff appeared in the
magistrate of Witbank on the count of: house robbery and attempted
murder, he pleaded
not guilty and was found not guilty on all counts
and was discharged by Witbank magistrate court.
. . .
10.5 The aforesaid police officials were at all
material times acting within the and scope of his employment.
10.6 The [respondent] is vicariously responsible and liable for the
damages sustained by the plaintiff.
. . .
Claim C
10.8 The plaintiff has as a result of the
aforesaid
unlawful detention, assault
and unlawful arrest
carried out by the
aforesaid police officials on the 26
th
of the October 2010 suffered general damages.
10.8.1 The aforesaid police officers were at all
material times acting in their capacity as police officers in the
services of the
South African Police and were acting within the
course and scope of their duties.’
(Emphasis
added.)
Pleadings
were closed without further ado.
[7]
At the commencement of the trial, the parties agreed to a separation
of issues in terms of rule 33(4) of the Uniform Rules.
The high court
then ruled that the issue of whether the police had acted lawfully in
shooting the plaintiff would be determined
first and that the trial
on all the other issues arising in the case would be postponed for
later determination. In other words,
the unlawfulness or otherwise of
the shooting was separated from the other issues in dispute. The
trial thereafter ran on the footing
that the defendant accepted that
it bore the onus to prove that its members were justified in shooting
the plaintiff.
[8] At the end of the hearing, the high court found
against the plaintiff and held that ‘[i]t was clear both
objectively and
to the plaintiff subjectively that an attempt to
arrest the plaintiff was being made. Despite that, the plaintiff
fled. The plaintiff
could not be arrested except by use of force . .
. If De Klerk had not shot him, the plaintiff would probably have
escaped into
the veld and the night, as the other three gang members
did.’ It granted the following order:
‘
The plaintiff’s action must fail. I
make the following order:
There will be judgment for the defendant against the plaintiff, with
costs.’
Although
not crisply set out in the notice of appeal, correctly construed,
this is the finding of which the plaintiff is aggrieved
and in
relation to which the trial court granted him leave to appeal to this
Court.
[9]
Before identifying the issues for determination in this appeal, I set
out a brief exposition of the evidence adduced in the
high court.
Three witnesses testified on behalf of the defendant. Warrant Officer
(W/O) De Klerk was the main witness. According
to him, there was a
robbery underway. One of the robbers was shot dead inside the house.
Three others fled. The plaintiff fled
over the front palisade fence
into the street. W/O De Klerk testified that he believed that if he
did not shoot the plaintiff,
the latter would not only evade arrest
but also pose a danger to other persons.
[10]
The plaintiff testified that he was walking in the street, after
getting lost, when he was shot from the balcony of a house
in the
same street. The shooters had, shortly before he was shot, shouted
something to him in Afrikaans which he did not understand.
As he fell
to the ground, one police officer fired a shot at the ground and the
bullet ricocheted and hit him in his hip. After
the shooting, the
police officers and Mr Bhamjee repeatedly kicked him as he lay on the
ground. He suffered multiple gunshot wounds
and broken teeth. He told
the police that he was on his way to visit his girlfriend who was a
student at UNISA at that time. They
took his backpack that contained
his clothes and toiletries. They also seized his cell phone. As a
result, he could not call his
then girlfriend who could have
confirmed that he had been communicating with her from the time he
left Witbank, from where he had
travelled, up to the point
immediately before he was shot. The high court, whilst accepting that
the plaintiff had sustained more
than the three gunshot wounds in his
legs as admitted by W/O De Klerk, criticised the plaintiff on several
aspects of his evidence
and labelled him a poor witness.
[11]
The question which the high court ultimately answered was whether the
police, in trying to prevent the plaintiff from fleeing,
had any
justification based on reasonable grounds to shoot the plaintiff.
And, as already indicated, it ruled in favour of the
defendant.
[12] Before this Court, the plaintiff raised the
following issues for determination on appeal:
‘
(a) whether the shooting by
the members of the defendant was necessary, reasonable and complied
with
s 49(2)
of the
Criminal Procedure Act 51 of 1977
as amended by s
7 of the Judicial Matters Second Amendment Act 122 of 1998;
(b) whether the trial court erred in finding that the
plaintiff may have sustained other injuries in the house during the
shooting;
(c) whether the trial court erred in rejecting the
plaintiff’s version that the other police who were on the
balcony fired
shots at him;
(d) whether the high court erred in finding that the
plaintiff bore the onus to prove that the injuries he sustained were
caused
by the bullets fired by the other police officers; and
(e) whether the high court was
correct in finding that the shooting of the plaintiff by W/O De Klerk
was justified.’
[13]
Whether a separation occurs at the instance of the court or on
application by the parties, it must be an issue which arises
from the
pleadings.
[1]
It is trite that the whole purpose of pleadings is to define the
issues between the parties, to confine the evidence of the trial
to
the matters relevant to those issues, and to ensure that the trial
may proceed to judgment without either party being disadvantaged
by
the introduction of matters not fairly ascertainable from the
pleadings. In other words, a party should know in advance, in
broad
outline, the case they will have to meet at the trial.
[2]
In light of the outcome of this appeal, I need say no more than that
the plaintiff’s particulars of claim are not a model
of good
draftsmanship and clarity.
[14]
As alluded to earlier, an agreement was reached between the parties
on the extent of the separated issues. The high court,
too, did not
provide any elucidation as to why this course was taken, save to
state, in its judgment that ‘[w]hen the trial
was called before
me, counsel asked for a separation of issues. . . I ruled that the
issue of whether the police had acted unlawfully
in shooting the
plaintiff be determined first and that the trial of all other issues
arising in the case would be postponed for
later determination, if
necessary’.
[15]
Reverting to the pleadings in conjunction with the separation of
issues, it is the formulation of the plaintiff’s claim
in the
pleadings that we must look at to determine the scope of the
separated issues. In his particulars of claim, the plaintiff
alleged
that he was shot and assaulted by the police officers. These
allegations are imprecise and not even the subsequent amendment
overcame the shortcomings in the particulars of claim. For instance,
the fact that the plaintiff was shot in the street on his
way to
visit his girlfriend and not as one of the robbers that had committed
the armed robbery, only came up during the hearing.
Claim B refers to
arrest and detention without any specificity. Claim C for instance
encapsulates all three claims despite their
distinct nature
especially when it comes to having to prove them. Counsel for the
plaintiff did not seek any amendment to the pleadings.
A court is
empowered during the hearing of a matter, at any stage before
judgment, to grant leave to amend any pleading or document
on
appropriate terms. The court may also permit an amendment during the
hearing of an appeal where no real prejudice would be occasioned
by
it. The test is whether the issues sought to be introduced by the
amendment have been fully canvassed at the trial.
[3]
Counsel for the plaintiff was asked in this Court if he could point
to any reference to such details and he could not. For this
reason,
it is necessary to point to exactly what I say is insufficient for
purposes of pleading.
[16]
When consideration is given to the defendant’s plea, despite
the insufficiency of the allegations by the plaintiff, it
is clear
that the one issue that the high court separated from others, ie
whether the members of the defendant were justified in
shooting the
plaintiff, was inextricably interwoven with the arrest and the
assault to such a degree that it was impractical to
make a
determination on the separated issue without any reference to the
arrest and the assault.
[17]
Counsel for the defendant implored this Court to decide the appeal on
the assumption that the arrest was lawful as, according
to him, the
plaintiff was part of the gang that attempted to commit the armed
robbery. So too counsel for the plaintiff implored
this Court to
assume that the arrest was unlawful, but for a different reason: that
the plaintiff was never in the house. The fallacy
with the assumption
advocated by each counsel is that first, the issue of arrest is not
before this Court. Nor was it before the
high court. Second, to make
such an assumption would be to bind the next court, when it has to
determine the outstanding issues.
[18]
As alluded to above, in its judgment the high court accepted that W/O
De Klerk and his colleagues were absolved by
s 49(2)
of the
Criminal
Procedure Act 51 of 1977
which empowers or permits an arrestor to
lawfully use force to arrest a suspect and the suspect resists the
attempt, or flees,
or resists the attempt and flees. But in the light
of the conclusion to which I have come, it is not desirable to delve
into that
aspect.
[19]
It is unfortunately necessary to say something about the separation
of the issues that was sanctioned by the high court, at
the request
of the parties. Most recently, in
Nature’s
Choice Farms (Pty) Ltd v Ekurhuleni Metropolitan Municipality
,
[4]
this Court was once more constrained to remind practitioners and
judicial officers that:
‘
This
Court has cautioned repeatedly against the inappropriate separation
of ill-defined issues which do not serve the goal of enhancing
the
convenient and expeditious disposal of litigation. In
Denel
the court foresaw the danger of disputes arising from imprecise
articulation of orders made under
rule
33(4).
It set out guidelines which litigants would be well advised to heed
when seeking separation of issues under the rule and stated:
“
Rule
33(4) of the Uniform Rules – which entitles a Court to try
issues separately in appropriate circumstances – is
aimed at
facilitating the convenient and expeditious disposal of litigation.
It should
not be assumed that the result is always achieved by separating the
issues. In many cases, once properly considered, the
issues will be
found to be inextricably linked, even though, at first sight, they
might appear to be discreet. And even where the
issues are discreet,
the expeditious disposal of the litigation is often best served by
ventilating all the issues at one hearing
particularly when there is
more than one issue that might be readily dispositive of the matter.
It is only after careful thought
has been given to the anticipated
course of litigation as a whole that it will be possible properly to
determine whether it is
convenient to try an issue separately.
But,
where the trial Court is satisfied that it is proper to make such an
order – and, in all cases, it must be so satisfied
before it
does so, it is the duty of that court to ensure that the issues to be
tried are clearly circumscribed in its order as
to avoid confusion.
The ambit of terms like the “merits” and the “quantum”
is often thought by all the
parties to be self-evident at the outset
of the trial, but, in my experience, it is only in the simplest of
cases that the initial
consensus survives. Both when making rulings
in terms of Rule 33(4) and when issuing its orders, the trial Court
should ensure
that the issues are circumscribed with clarity and
precision.”’
(Emphasis
added.)
[20] As this
case demonstrates, it is never advisable to separate issues as a
general rule. Ill-considered separation of issues
often result in a
wastage of scarce resources as has been witnessed in this case. Legal
representatives and judicial officers alike
must reflect carefully
before seeking and ordering a separation of issues to avoid mishaps
of the kind that happened in this case.
Failure to do so may have the
unfortunate consequence that the expeditious finalisation of the case
is delayed. The adage that
justice delayed is justice denied readily
comes to mind in circumstances such as we have seen in this case.
Here the interests
of the litigants have not been served as they will
have to now start all over again.
[21]
The conclusion to which I have come renders it unnecessary for now to
consider the versions presented in the high court. Had
the separation
of the issues not been ordered, the trial would have commenced with
evidence being led by both parties to determine
first and foremost
whether or not the arrest was lawful. Then the rest of the issues
including the assault and detention, substantiated
by medical
evidence would flow naturally therefrom to assist the court to come
to a proper conclusion on whether the police officers
were justified
in shooting the plaintiff. But as is apparent from its judgment, the
order that the high court granted brought an
end to the whole action
encompassing three claims when the two of those claims were not
before it. On this basis alone, the appeal
ought to succeed only for
the matter to be reheard.
[22]
For all the foregoing reasons, the course adopted in the high court
was, in the light of the peculiar circumstances of this
case,
inappropriate. The high court should simply have heard all the
evidence on all the claims as would have been tendered by
the parties
and thereafter determine all the issues before it. That would also
have meant that the high court would not have fallen
into the trap,
as it did, of making factual findings on one leg instead of all three
legs of the plaintiff’s claim. This
Court is therefore bound to
remit the matter to the high court for a determination of all the
issues in one trial.
[23] In the result, the following order is made:
1 The appeal is upheld with costs.
2 The order of the high court is set aside.
3 The matter is remitted to the high court, differently
constituted, for re-trial on all the issues.
________________________
B C MOCUMIE
JUDGE
OF APPEAL
APPEARANCES
For
appellant: M J Letsoalo
Instructed
by: A J Masingi Attorneys, Pretoria
Phatshoane
Henney Attorneys, Bloemfontein
For
respondent: M S Phaswane
Instructed
by: State Attorney, Pretoria
State
Attorney, Bloemfontein.
[1]
First
Rand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another
[2015] ZASCA 6; 2018 (5) SA 300 (SCA).
[2]
Rule
18(3) Uniform Rules of Court. See also
Erasmus
Superior Court Practice
(RS
11, 2019) at D1-234.
[3]
LAWSA
3 ed para 379. See also the cases cited therein.
[4]
Nature’s
Choice Farms (Pty) Ltd v Ekurhuleni Metropolitan Municipality
[2020]
ZASCA 20
;
[2020] 3 All SA 57
(SCA) para 16.