IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable / Not reportable
CASE No.:1313/2020
In the matter between:
TUMELO ISAAC MATEBESI PLAINTIFF
and
THE MINISTER OF POLICE DEFENDANT
Coram: Van Rhyn J
Heard: 26 and 27 February 2024, 1 March 2024, 13 and 14 August 2024
and 18 September 2024
Delivered: 13 December 2024
Summary: Delict-claim for damages - issue of liability -assault upon plaintiff­
shooting plaintiff in his back - by member of the SAPS - self-defence
raised - onus - credibility of defence witnesses - onus of justification not
discharged.
ORDER
1. The Defendant is held liable for 100% of such damages, if any, as may be proven by
the Plaintiff or agreed upon between the parties, in consequence of the shooting
incident that occurred on 10 January 2019.
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2. The Defendant shall pay the Plaintiffs taxed or agreed party and party costs to date of
this order which costs shall include the Plaintiffs counsel fees on Scale B as provided
for in Rule 67A read with Rule 69.
JUDGMENT
[1] The plaintiff, Tumelo Isaac Matebesi, instituted action against the defendant, the
Minister of Police, on 16 March 2020 for general and special damages in the amount of
R2 634 400 arising from a shooting incident perpetrated by a member of the South African
Police Service (the 'SAPS') acting within the course and scope of his employment with the
defendant when the plaintiff was shot and injured.
[2] It is the plaintiffs pleaded case that on the 10th of January 2019 at Botshabelo, he was
unlawfully assaulted by a police officer, Phehello Alfred Nyamane ('Sergeant Nyamane'), who
caused the injury by shooting him in his back. The action which is defended by the defendant
proceeded on the merits only. The issue of quantum was separated from the merits in terms
of the provisions of Rule 33(4) of the Uniform Rules of Court. The trial bundles, both the main
and supplementary, were admitted into evidence by agreement between the parties. The
defendant denies that Sergeant Nyamane acted unlawfully and specifically pleads that a
warning shot was fired to the ground when the plaintiff attempted to attack Sergeant Nyamane
with a dangerous object.
[3] The defendant adduced evidence of two witnesses, Sergeant Nyamane and Sergeant
Motseki Lesimola ('Sergeant Lesimola') in defending the action. The plaintiff testified in
support of his claim. The plaintiff testified that he resides at Section F, Botshabelo. On 10
January 2019, when he arrived at Botshabelo after visiting Bloemfontein, he went to Matsidi's
Tavern where he purchased two Pine Twist alcoholic beverages. After having consumed
some of the contents of the first bottle, he decided to go on foot to Fairways Mall. On his way
there he met up with his former girlfriend, Palesa. He spoke to her, but his attempts to engage
her in conversation were futile as she avoided him and returned to her home which is situated
nearby. Her father, Mr Limo, subsequently appeared from their home while holding a walking
stick. Mr Limo accused the plaintiff of blocking his daughter's way as she was on her way to
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work when she encountered the plaintiff.
[4] The plaintiff, being afraid of Mr Limo, then ran away in the direction of Fourways Mall.
He was informed by bystanders that a police vehicle is following him. He turned back and saw
Mr Limo standing next to a police vehicle, approximately 100 metres away from where he was
standing. He threw away the empty liquor bottle and opened the second bottle. He then
proceeded to a road in between houses which leads to a passage or walkway. The passage
or walkway leads the way to an open field situated in between different sections within
Botshabelo. He became frightened when he realised that a police officer, which later
appeared to be Sergeant Nyamane, continued to follow him on foot. He started running.
According to his observation, Sergeant Nyamane was approximately 40 to 50 meters behind
him. He was holding on to the liquor bottle and had spilled some of the contents because the
cap was not screwed on.
[5] While running away from Sergeant Nyamane he heard a gunshot. He became terrified
and kept on running. He heard a second gunshot and started feeling weak. He realised that
he had been shot. He was running away from Sergeant Nyamane and was not facing him
when he heard the shots. He ran into an erf to his right and collapsed. He still had the liquor
bottle in his hand when he fell to the ground. Sergeant Nyamane caught up with him. While
he was lying on the ground, Sergeant Nyamane kicked him. His hands were tied behind his
back with the laces of his 'tekkies'. He was not informed that he is being arrested on any
charge. He questioned Sergeant Nyamane regarding the reason for shooting at him. Sergeant
Nyamane denied that he shot at him and informed him that he threw a stone at him. The
plaintiff was put into the back of the police vehicle and transported to the road leading to
Fourways Mall where he was instructed to alight from the police vehicle and not to cause any
further trouble. At ~he time three police officers where in the police vehicle, being Sergeant
Nyamane, another male officer as well as a female officer.
[6] The members of the SAPS then transported him to the Botshabelo Hospital where he
was informed by the medical staff that he had sustained a gunshot wound to his right shoulder
blade. The plaintiff estimated that the shooting incident occurred at around 15h00 because
he arrived at the hospital at around 16h30. He received medical attention and was
subsequently transported to Pelonomi Hospital at Bloemfontein. He was admitted and the
bullet was surgically removed. He was discharged from hospital on 11 January 2019. The
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plaintiff denied that he attacked or attempted to attack Sergeant Nyamane with a dangerous
weapon.
[7] During cross examination it was established that the plaintiff assumed that Sergeant
Nyamane was following him because he was drinking alcohol in public. That is the reason
proffered by him for running away from the members of the SAPS. At this stage of the
proceedings the court adjourned and reconvened at Botshabelo for an inspection in loco. By
agreement between the parties a plan marked Exhibit A, with different points marked A - J,
including certain distances pointed out by the plaintiff and Sargeant Nymane, were handed in
by agreement between the parties. It eventually became clear that many of the points
indicated on Exhibit A were not in dispute and were not contentious.
[8] It was put to the plaintiff that Mr Limo reported an assault perpetrated by the plaintiff
upon Palesa during a previous encounter, where after the members of SAPS followed the
plaintiff. The members of SAPS noticed the plaintiff running away and they followed him while
travelling in the police vehicle. It was impossible for the police vehicle to enter the narrow
passage and only then did Sergeant Nyamane alight from the police vehicle and started to
follow the plaintiff on foot. According to the plaintiff, Sergeant Nyamane was talking to Mr Limo
when he had already alighted from the police vehicle. The plaintiff thus denied the version put
to him that Sergeant Nyamane followed him while being conveyed within the police vehicle.
[9] It was put to the Plaintiff that Sergeant Nyamane was catching up with him after he
entered the passage. Sergeant Nyamane's version is further that after the plaintiff exited the
passage at point H on exhibit A, and when he was already in the open field area, the plaintiff
ran further for approximately 70 meters, turned and looked back at Sergeant Nyamane . The
plaintiff stopped and faced Sergeant Nyamane . The distance between them was
approximately 6 to 7 meters. It was put to the plaintiff that he was waving a bottle towards
Sergeant Nyamane. Sergeant Nyamane fired the first shot with the barrel facing upwards into
the air. The plaintiff denied the statement and testified that the distance between them was
actually increasing because his pace was faster than that of Sergeant Nyamane . According
to the plaintiff he was approximately 50 metres away from Sergeant Nyamane when he heard
the first shot. This was his version at the inspection in loco. During cross-examination the
plaintiff however testified that he did not look back when the first shot was fired.
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[1 0] The plaintiff explained that the visit to the scene during the inspection in loco brought
back memories of the incident and that is the reason why his version of the events during
cross-examination differs, only in certain respects, from what he testified in his evidence in
chief. He can recall that he did not look back immediately prior to the first shot being fired. It
was put to the plaintiff that Sergeant Nyamane will testify that he retreated when the plaintiff
waived the bottle at him. He then fired the first warning shot. Sergeant Nyamane retreated
even further while the plaintiff kept on moving in his direction. The distance between them
remained the same, being 6 to 7 meters. Sergeant Nyamane thereafter fired a second warning
shot to the ground. After the second shot was fired the plaintiff turned and ran away. The
plaintiff ran towards the yard where he fell. Sergeant Nyamane thought that the plaintiff fell
on a stone and got injured. It was put to the plaintiff that he tried to grab Sergeant Nyamane 's
firearm when he was apprehended. This was denied by the plaintiff.
[11] It was put to the plaintiff that he was placed inside the police vehicle for him to be taken
to the police station. When the police vehicle was brought to a stop at a certain point, the
members of the SAPS noticed blood and it was decided not to take the plaintiff to the police
station but to take him to the hospital for medical treatment. The plaintiff was extensively
cross-examined on the content of a statement deposed to by him on 13 June 2019 regarding
his different versions whether it was the first or the second shot that ultimately caused the
injury to his back. The affidavit deposed to by the plaintiff is contained in the Trial Bundle. The
plaintiff explained that the statement was not read back to him by the official who took down
the statement and he did not read the statement. He merely signed the statement.
[12] The plaintiff explained that he initially thought that he was struck by the first bullet and
only later realised that it must have been the second bullet that struck him. The plaintiff
furthermore denied the version put to him that he was in custody while in hospital or that he
was being guarded by police officials while in hospital. This concluded the case presented by
the plaintiff.
[13] The defendant presented the testimony of two witnesses, Sergeant Nyamane and
Sergeant Lesimola. Sergeant Nyamane was 37 years old at the time of the trial and is
stationed at Boithuso Police Station at Botshabelo. He has been in the employment of the
SAPS since January 2011. At the time of the incident, during January 2019, he was a
constable in the SAPS . Sergeant Nyamane's evidence is that on 10 January 2019 he was on
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duty and was clothed in uniform. He was accompanied by two other police officers as well as
Sergeant Lesimola while on patrol at J section, Botshabelo. Whilst pursuing the plaintiff with
a police vehicle following information obtained from Mr Limo, the plaintiff turned into the
narrow passage at point G where the vehicle could not enter. He alighted from the vehicle
and followed the plaintiff on foot. He was running in an endeavour to catch up with the plaintiff.
The plaintiff was also running. He did not call out to the plaintiff. The distance between him
and the plaintiff was decreasing due to the fact that he was running faster than the plaintiff.
The distance between them was approximately 8-10 meters.
[14] The plaintiff then stopped and faced him. The plaintiff was holding a bottle of Pine Twist
in an upright position, at shoulder height, next to his body. The plaintiff approached him with
the bottle held up in his right hand and he looked as if he was in a 'fighting mood'. Sergeant
Nyamane explained that he retreated and pulled out his service firearm from the holster. He
cocked the firearm and instructed the plaintiff to lie down . The plaintiff came closer while
Sergeant Nyamane retreated a few steps. He then fired a shot with the firearm pointed in an
upright position. The distance between him and the plaintiff was approximately 4 meters at
the time. The plaintiff told him that he (Sergeant Nyamane) will never shoot him and advanced
even further whereafter he fired the second shot towards the ground. He saw dust in the
footpath approximately one and a half to two meters in front of him. Sergeant Nymane was
still retreating and turned to look behind him. When he faced forward to look at the plaintiff,
the plaintiff turned around and ran away .
[15] He placed the firearm in the holster and proceeded to chase the plaintiff. The plaintiff
jumped a fence and ran into a yard. Sergeant Nyamane followed and proceeded around a
house and encountered the plaintiff at the other side where he grabbed the plaintiff's hand in
which he was still holding on to the bottle. He caused the plaintiff to fall and restrained him.
The plaintiff was observing his firearm in the holster fastened to his thigh and made an attempt
to grab the firearm. Sergeant Nyamane then kicked the plaintiff in his private parts whereafter
he tied the plaintiff hands behind his back with shoe laces removed from the plaintiff's shoes.
He then noticed blood on the plaintiff's T-shirt at the back. The plaintiff enquired for the reason
for shooting at him.
[16] Sergeant Nyamane summoned his colleagues to collect them with the police vehicle
whereafter they travelled to the police station. Once there one of his colleagues in the vehicle
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suggested they transport the plaintiff to the hospital to ascertain whether he had sustained a
gunshot wound or not. The plaintiff was then taken to the hospital. A case was opened against
Sergeant Nyamane for discharging a fire arm within a municipal area. Sergeant Nyamane
explained that he fired the two shots because he became 'nervous' of the plaintiff's actions in
that he was using the bottle as weapon . He fired the first shot to make the plaintiff aware that
he should throw away the bottle. Su~sequent to several questions put to Sergeant Nyamane
by Mr Jonase, counsel for the defendant, whether he uttered any words to the plaintiff,
Sergeant Nyamane responded as follows: 'I uttered those words.'
[17] During cross-examination Sergeant Nyamane testified that the reason why he decided
to follow the plaintiff subsequent to talking to Mr Limo, was to arrest the plaintiff. When
questioned further, he explained that he actually only wanted to 'catch' the plaintiff and to take
him to Mr Limo and not to arrest him or take him to the police station. The plaintiff was
ultimately arrested for the assault perpetrated upon Sergeant Nyamane. Sergeant Nyamane
confirmed during cross-examination that he was not assaulted by the plaintiff but the plaintiff
attempted to assault him with the bottle. Sergeant Nyamane was furthermore confronted with
the contents of paragraph 10 of a statement deposed to by him on 10 January 2019, that the
reason for him to fire the two shots was because he feared that the plaintiff could get hold of
his service pistol as it seemed to be his intention at the time. At paragraph 5 of the said
statement, he also stated that he fired the two shots because the plaintiff wanted to .attack
him with a bottle. Sergeant Nyamane explained that the version, as contained in the
statement, does not reflect the correct facts pertaining to where the second shot hit the
ground. The second sho~ did not hit the ground next to the plaintiff. The second shot hit the
ground to the side of the plaintiff approximately one and a half to two meters in front of him
(Sergeant Nyamane).
[18] The second and last witness for the defendant was Sergeant Lesimola. At the time of
the incident during 2019 Sergeant Lesimola was a member of the SAPS with the rank of
constable and stationed at the Boithuso Police Station at Botshabelo. Sergeant Lesimola
confirmed the version presented by Sergeant Nyamane that they received information from
Mr Limo regarding the plaintiff and noticed the plaintiff running down the street whereafter
they chased the plaintiff. Sergeant Nyamane requested the driver to stop the vehicle
whereafter he alighted and followed the plaintiff on foot. Sergeant Lesimola later received
news that the plaintiff was apprehended and arrested by Sergeant Nyamane whereafter they
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proceeded with the police vehicle to a certain point where they met up with Sergeant Nyamane
and the plaintiff. The plaintiff was seated on the pavement and already handcuffed. Sergeant
Nyamane informed them that he had arrested the plaintiff. According to Sergeant Lesimola,
Sergeant Nyamane informed them that the plaintiff came towards him holding a bottle as if
attacking him whereafter he fired two shots, one into the air and one to the ground and •
eventually ended up arresting the plaintiff.
[19) During his testimony in chief Sergeant Lesimola explained that he noticed blood on the
plaintiffs' shoulder blade and a decision was made to take the plaintiff to the hospital for.
medical treatment. Sergeant Nyamane informed his colleagues that the bleeding was caused
by a gunshot wound and that the plaintiff had informed him that he, Sergeant Nyamane, had
shot him. At the hospital the witness guarded the suspect because of his attempt to attack a
member of the police.
[20) During cross examination Sergeant Lesimola explained that Sergeant Nyamane
informed his colleagues on the day in question that he arrested the plaintiff for the attempt to
attack him. Sergeant Lesimola then expanded upon the explanation and testified that
Sergeant Nyamane arrested the plaintiff for attacking him with the bottle. Sergeant Lesimola
furthermore testified that Sergeant Nyamane informed him that the plaintiff was injured when
he 'jumped' a fence.
[21] It is trite that, every infringement of bodily integrity is prima facie unlawful and once the
infringement is proved, the onus rests upon the wrongdoer (the defendant) to prove a ground
of justification.1 The plaintiff must allege and prove the fact of physical interference.2 The
plaintiff testified that he· was running away from Sergeant Nyamane when he heard two gun
shots. Following the firing of these two shots, the plaintiff was injured on his right shoulder
blade. The plaintiff was subsequently hospitalised and a bullet was removed from his shoulder
blade. It is furthermore common cause that the defendant is vicariously liable for the actions
of his members and in this particular matter, for the actions of Sergeant Nyamane.
[22) In the plea the defendant denied the allegation that the plaintiff was unlawfully
1 Moghamat v Centre Guards CC [2004] 1 All SA 221 (C) at [7], citing Mabaso v Felix 1981 (3) SA 865 (A) at
873E- 874E .
2 Bennet v Minister of Police 1980 (3) SA 24 (C) at 34-35.
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assaulted by a member of the SAPS by shooting the plaintiff in his back with a firearm. The
effect of the defendant's plea in this regard was that the plaintiff was saddled with the onus to
prove, in the first place, that he was struck by a bullet fired by Sergeant Nyamane. During the
Rule 37 meeting the plaintiff accepted the onus to prove all the elements of his claim and the
duty to begin. Sergeant Nyamane, during his evidence, conceded that the plaintiff was struck
by a bullet fired from the firearm issued to him. It is common cause that a projectile, which
was surgically removed from the plaintiffs shoulder blade at the Pelonomi Hospital at
Bloemfontein, was fired from a Beretta Pistol with serial number P45260L issued to Sergeant
Nyamane. It can therefore safely be concluded that the plaintiff was shot by Sergeant
Nyamane. The parties have presented mutually destructive versions with regard to the
circumstances under which the plaintiff was injured.
[23) The onus of alleging and proving an excuse or justification for the assault upon the
plaintiff rests on the defendant. Grounds of justification are special circumstances in which
conduct, that appears to be wrongful because of an actual violation of interests, is rendered
lawful. A ground of justification therefore excludes wrongfulness by eliminating the apparent
wrongfulness of the defendant's conduct. Grounds of justification are still concerned with the
basic question of whether the member of the SAPS's violation of the plaintiffs interest was
reasonable in the particular circumstances and therefore lawful.3 Both the alleged attack upon
Sergeant Nyamane by the plaintiff and the defensive conduct by Sergeant Nyamane must
meet certain requirements for the defence to be applicable. The version of Sergeant Nyamane
is that he did not shoot the plaintiff intentionally. The issue to be determined is therefore
whether Sergeant Nyamane shot the plaintiff intentionally, and if so, whether he was legally
justified to do so.
[24) It is clear form the summary of the evidence presented by the plaintiff and Sergeant
Nyamane that, as far as their positions when the two shots were fired are concerned, are
mutually destructive. The court in Stellenbosch Farmers' Winery Group Ltd and Another v
Martell and Cie SA and Others4 held that when a court is faced with two conflicting versions,
the court must make findings on the following: -
3 Van der Walt JC and Midgley JR, Principles of De/ict (2005) at 125.
4 Stellenbosch Farmers' Winery Group Ltd and Another v Martell and Cie SA and Others [2002) ZASCA 98 (6
September 2002) at para [5], pp 4-5.
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'(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' candour and demeanour in the witness box,
(ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his behalf, or with established fact or
with his own extra curial 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' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v)
above, on (i) the opportunities he had to experience or observe the event in question and (i) 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 the rare one, occurs when the Court's credibility
findings compel it in one direction and its evaluation of 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.'
[25] Sergeant Nyamane was unable to explain how it came about that a bullet fired from
his firearm was retrieved from the plaintiff's back when, on his version, the plaintiff was facing
him and moving towards him when he fired both shots, one into the air and the second to the
ground. He did not make an effort to provide an explanation. This however did not deter Mr
Jonase to argue that it is readily understood and logical that' ... a bullet that was fired into the
air must come down ... 'with the result that only inference to be drawn is that the bullet that
was fired into the air, caused the injury to the plaintiff. Mr Jonase did not take into
consideration that it was Sergeant Nyamane's version that the second shot, fired into the
ground, must have penetrated the plaintiff's body and not the shot fired into the air. However,
the defendant has not provided any explanation how it is possible for the second bullet to
penetrate the plaintiff's back when he was facing Sergeant Nyamane when the shot was fired
11
into the ground. I agree with the contention on behalf of the plaintiff that the version of the
plaintiff, namely that he was running away from Sergeant Nyamane when the shots were fired,
are more probable. The plaintiff gave a detailed account of how, when and where he was
when both shots were fired.
[26] Sergeant Nyamane's version that he fired the second shot to the ground, one and a
half metres away from him and more to the side of the plaintiff, who was approximately, either
6 to 7 metres or 4 metres away from him, is in contradiction to his version contained in his
affidavit made on the day of the incident that he fired the shot into the ground next to the
plaintiff. The version of the defendant that Sergeant Nyamane was approximately 6 to 7
metres away from the plaintiff when he fired the first shot was put to the plaintiff during cross­
examination. This was also the distance indicated by Sergeant Nyamane during the
inspection in loco to be the distance between himself and the plaintiff when he fired both
shots. However, when Sergeant Nyamane testified, he adjusted his version by testifying that
the distance between himself and the plaintiff was approximately 4 meters when he fired the
first shot upwards. He furthermore testified that he instructed the plaintiff to lie down, which
version was not put to the plaintiff during cross-examination.
[27] During cross-examination it was put to the plaintiff that Sergeant Nyamane was
unaware of the fact that the plaintiff was wounded subsequent to firing the two shots. The
version presented by the defendant that the plaintiff was injured due to the fact that he jumped
a fence and was injured by the wire or that he fell on a stone or struck by a stone do not
correspond with the version presented by Sergeant Lesimola that Sergeant Nyamane
informed him, when meeting up with him on the day of the incident, that the plaintiff sustained
a bullet wound. The evidence presented by the defendant is riddled with contradictions and
improbabilities. Sergeant Nyamane appeared uneasy in the witness stand and experienced
difficulty in explaining why he became anxious of the plaintiff and what the plaintiff did which
made him believe that the plaintiff was attacking him. His version of the events is not credible.
The version that Sergeant Nyamane noticed how the plaintiff waived the bottle at him is
contradicted by his testimony that the plaintiff merely held the bottle by its neck at shoulder
height. Sergeant Nyamane's version that the plaintiff kept on approaching him
notwithstanding his instruction to lie down and while holding a firearm, is highly improbable. I
am of the view that Sergeant Nyamane's version of how he retreated, kept on looking behind
him while the so-called danger was facing him, and how and when exactly he took out the
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firearm from the holster appears extremely vague and tailored to suit his defence.
[28] As to the issue whether Sergeant Nyamane was legally justified in shooting the plaintiff
the defence is a mixture of denying that the plaintiff was shot by Sergeant Nyamane and self­
defence. For the defendant to succeed, the defendant must plead and prove:
(a) a real or threatened attack by the plaintiff;
(b) reasonable grounds for believing that Sergeant Nyamane was in danger; and
(c) that the force used was necessary in the circumstances to repel the attack and
commensurate with the plaintiff's aggression.5
[29] The defendant did not raise use of force under section 49 of the Criminal procedure
Act, 51 of 1977 as a defence. The test for self-defence is an objective one. 6 The question to
be answered is whether a reasonable person in the position of Sergeant Nyamane would
have considered that there was a real risk that death or serious injury was imminent. In my
view the plaintiff was an honest witness with regard to the circumstances pertaining to the
shooting incident. He conceded that he made a mistake regarding when exactly he turned to
look how far Sergeant Nyamane was during the pursuit and whether it happened before or
after the first shot. He explained that he cannot recall, in precise detail, the events. This, to
my mind, is reasonable and understandable. He furthermore conceded that there might have
been four police officials in the vehicle and not three as per his evidence in chief.
[30] However, the plaintiff was indeed vague and unpersuasive regarding the reason why
Palesa avoided contact with him, which is, in my view, an indication that he is not telling the
truth regarding what occurred when he met with her on a previous occasion. His explanation
that he was under the impression that Sargeant Nyamane was following him because he was
drinking alcohol in public is therefore not convincing. This explains why the report received
from Mr Limo regarding an alleged assault by the plaintiff upon Palesa, caused him to run
away when he noticed Mr Limo talking to the members of the SAPS. While I accept that there
were certain contradictions and discrepancies in his testimony, I do not consider same to be
material to warrant the rejection of his version of the events pertaining to the shooting incident
as such. Mr Jonase argued that the plaintiff's initial version that he was wounded as a result
of the first gunshot, which he subsequently altered in that he was actually hit by the second
5 S v Makwanyane 1995 (3) SA 391 (CC) at para 38.
6 Mugwena and Another v Minister of Safety and Security [2006] 2 All SA 126 (SCA) at [21).
13
bullet, leads to an inference that he is untruthful and his version ought to be rejected. On the
plaintiff's version that he was not facing Sergeant Nyamane when he was struck by the bullet,
he can only speculate whether he was hit by the first or the second bullet. This does not alter
the fact that he was shot in his back. During cross-examination the plaintiff testified that
Sergeant Nyamane had no reason to shoot him. I agree with this contention.
[31] It is common cause that a docket had not been opened pertaining to any complaint or
charge by Mr Limo or Palesa. When Sergeant Nyamane received information from Mr Limo,
he had not consulted with Palesa. Sergeant Nyamane did not inform the plaintiff that he was
busy investigating a crime or a complaint and he did not instruct or request the plaintiff to
hand himself over to the police. It was not put to the plaintiff that he was requested to lie down
on the ground. The version by Sergeant Nyamane that he requested the plaintiff to lie down
on the ground only emerged when he testified in chief. In any event, Sergeant Nyamane did
not inform the plaintiff that he was about to arrest him. It appears as if no instructions regarding
the first shot was provided when the plea was drafted. The plaintiff never mentioned that he
saw Sergeant Nyamane's firearm. He only heard the gunshots. The evidence tendered by the
defendant does not accord with the probabilities as it seems improbable that the plaintiff would
proceed to confront Sergeant Nyamane with a bottle in his hand while pointed with a firearm
and even more so after the first shot was fired. The version of the defendant is merely a
fabrication solely invented to avoid liability. It is more probable that Sergeant Nyamane
became irritated and furious with the plaintiff, who was running away from him, which lead to
the shooting incident. The defendant's version is accordingly rejected as false. The only
conclusion that I can come to is that Sergeant Nyamane and Sergeant Lesimola were not
being truthful.
[32] I am not persuaded that Sergeant Nyamane acted in self-defence and therefore the
defendant has failed to discharge the onus of proving that Sergeant Nyamane's actions were
justified under the prevailing circumstances. I therefore find that the conduct of Sergeant
Nyamane was wrongful and unlawful. Consequently, the defendant is vicariously liable for the
jnjuries sustained by the plaintiff. There is no reason why costs should not follow the result.
ORDER:
[33] In the result I make the following order:
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1. The Defendant is held_ liable for 100% of such damages, if any, as may be proven by
the Plaintiff or agreed upon between the parties, in consequence of the shooting
incident that occurred on 10 January 2019.
2. The Defendant shall pay the Plaintiffs taxed or agreed party and party costs to date of
this order which costs shall include the Plaintiffs counsel fees on Scale 8 as provided
for in Rule 67 A read with Rule 69.
On behalf of the Plaintiff:
Instructed by:
On behalf of the defendant:
Instructed by:
I VAN RHYN
JUDGE OF THE HIGH COURT,
FREE STATE DIVISION, BLOEMFONTEIN
ADV. M S MAZIBUKO
MAZIBUKO AND WESI INCORPORATED
BLOEMFONTEIN
ADV. S S JO NASE
STATE ATTORNEYS
BLOEMFONTEIN