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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: CA 50/2023
In the matter between:
ZIZIPHO BRIDGETTE ZIDE Appellant
and
XHOBANI SECURITY SERVICES First respondent
FALCON FIREARM TRAINING ACADEMY Second respondent
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JUDGMENT
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RUSI J
[1] The appellant as plaint iff in the trial court instituted a claim founded on her
alleged unlawful and intentional , alternatively , negligent shooting on 08 June 2016 by a
security guard who was, at the time , the employee of the first or the second respondent .
As a result of the shooting, she sustained a rapture of her right eyeball for which she
received medical treatment at the Nelson Mandela Academic Hospital , Mthatha. She
consequently holds the first and second respondent s liable, jointly and severally , for
damages in the sum of R16 million representing pain and suffering, loss of amenities of
life, permanent disfigurement , past and future medical expenses.
[2] The trial proceeded on the merits of the appellant ’s claim only, with the
determination of the quantum of damages standing down f or later determination. In a
judgment handed down on 01 December 2020 the trial court 1 dismissed the appellant’ s
claim , with costs . This appeal is with the leave of the trial court against that judgment
and order .
The backg round facts
[3] A student protest erupted on 08 June 2016 at the W alter Sisulu University,
Mthatha Campus (the campus) , during which a group of about 500 students threatened
to disrupt examinations that were underway at the examination hall identified as the
‘Great Hall ’. This they did by intimidating the non -protesting students and examiners
and also threw rocks and bottles at this examination venue . At the time, t he members of
the first respondent were the security guards in charge of safety and security at the
campus in general and they were on guard of the Great Hall .
[4] When the protest broke out , the first respondent solicited the intervention of the
second respondent which in its view had expertise in crowd control. On arrival of the
members of the second respondent at the campus, five members of the first
responden t, together with those of the second , attended the Great Hall to secure it s
precinct and to protect the non -protesting students and administrative person nel that
were in charge of the examinations . On arrival at the Great Hall, t hey negotiat ed with
the representatives of the protesting students with a view to dispersing the protesting
crowd which , by then, was close to the doorway of the Great Hall .
[5] The negotiation s failed, and the crowd of students became aggressi ve and threw
rocks and bottles at the contingent of security guard s that were on guard of the precinct
1 In the judgment of Mafunda AJ under case number 229/2017 delivered on 01 December 2020 .
of the Great Hall. In response, t he members of the second respondent drove the
protesting students towards student residen ces at the campus , more particularly
toward s Chumani residence. At the time of this incident, the appellant lived in room 181
situated on the ground or base level of Chumani residence.
[6] An inspection in loco that was held during the trial revealed that the main
entrance of Chumani residence is situated on the 3rd floor of the same building. Three
flights of stairs lead to each of the three floors of student rooms inside the residence
and there is a stairway landing between the 2nd and 3rd floors. From this landing, the
entrance to the Chumani residence is visible . A Google map was also handed to the
court a quo with markings of various points relevant to the scene of the protest as it
continued to unfold from approximately 10 h00 on 08 June 2016.
[7] When the bottle and rock throwing by the protesting students persisted with the
crowd simultaneously advancing at the security guards in waves , the members of the
second respondent fired paintball s and rubber bullets at them as a further attempt at
their dispersal. Th e fracas endured for about two hours and the students would move
from various points around the campus. At some point during the violent protests , two
securit y officers of the first respondent were injured and a total of three loaded shotguns
were taken from some of the guards.
[8] The members of the second respondent eventually ran out of rubber bullets and
they retreated to the main gate of the campus where they had dis cussions with the
Student Representative Council (the SRC) members regarding their intention to use live
ammunition in the light of the persistent aggression by the protesting students. The use
of live ammunition was apparently the last option available to the m in those
circumstances in their attempt to protect their lives, those of the third parties not
involved in the protest, and the prope rty of the University. It was at this point that the
SRC managed to disperse their constituency, the protesting stu dents.
The pleadings
[9] The appellant ’s particulars of claim are far from being a model of clarity. In them,
she set s out her cause of action as being founded on her intentional, alternatively ,
negligent shooting by the members of the first or second respondent . Even though no
averment was pertinently made by the appellant in the particulars of claim that her
shooting by the members of the first and second respondent s was unlawful , it appears
that during the trial both parties and the court accepted that the appellant ’s claim was
that she was unlawfully , alternatively, negligently shot. We have no qualms with the
approach followed by the trial court in this regard , it appearing that neither of th e parties
were prejudiced by the fact that, as far as it could be discerned from the record before
us, no formal amendment was sought.
[10] In substantiating her assertion that she was negligently shot by an employee of
the first or second respondent, the appellant states, in essence, that the said security
guard failed to exercise the reasonable care that was expected of him when handling
his firearm and failed to take reasonable steps expected in the circumstances in order to
prevent her shooting.
[11] In resisting the appellant’s claim, the first respondent pleaded that its members
only heard of the shooting at 10h18 on that day and none of them shot the appellant. It
further pleaded that to the extent that its members shot t he protesting students with
paintball guns which discharged disc ceramic balls, they acted in private defence as
they were under attack by the students who threw rocks and bottles at them.
[12] The second respondent pleaded, in turn, that its members shot the protesting
students in private defence in circumstances where there was a threat to their lives, the
lives of the innocent students ; and University personnel and property. They shot them
with paintball guns which discharged ceramic balls.
[13] As alternative defences, each of the respondents pleaded that the appellant,
having been aware of the protest action, or, when she should have been aware of it,
voluntarily assumed the risk of harm by placing herself in the vicinity of the protesting
and v iolent group of students who were attacking the security guards with rocks and
bottles.
[14] Each of the respondents further pleaded , as a further alternative defence, that by
her own negligence the appellant contributed to the harm she suffered when she placed
herself in an unsafe position thereby unnecessarily exposing herself to the risk of injury ,
and when she failed to pay sufficient attention to the protesting students and the
reaction of the security guards. They further pleaded in this regard that the appellant
failed to take steps to move away from or avoid the protest action where, had she paid
sufficient attention, she could and should have done so. On these bases, they claim
apportionment of damages as envisaged in the Apportionment of Damag es Act 34 of
1996.
[15] In a pre -trial meeting that was held on 06 November 2019 the parties further
curtailed issues and reached an agree ment regarding the following :
(a) If the appellant was shot at in Chumani residence as she pleaded, then
liability of the respondents would follow.
(b) If, on the other hand, the appellant was shot at in circumstances where she
was in the vicinity of the protesting students who were acting violently and
attacking the securi ty guards, none of two respondents would be liable for the
harm she suffered.
(c) In the event of a finding that the appellant was shot by a member of the first
respondent, the second respondent would attract no liability as its members
would have been hired by the first respondent to undertake crowd control
during the student protest.
(d) If the court’s finding is that she was shot by a member of the second
respondent, the first respondent would carry vicarious liability for the actions
of the second.
[16] The parties further made common cause of the fact that rubber bullets were fired
at th e protesting crowd of students by the security guards that were deployed on
campus to deal with the protest and were fired at no nearer than 70 meters from the
student residences.
[17] Furthermore, t rial particulars concerning the shooting incident were provided by
the appellant upon the second respondent’s request in terms of Uniform Rule 21(2).
She stated in her reply that a t the specific time of the shooting , around 12 noon, she
was on the stairway landing between the 2nd and 3rd floors of Chumani residence and
the security guard who shot her was in front of the entrance of the residence which is
situated on the 3rd floor. Further particulars provided by the appellant are that it was
peaceful in this residence at the time , there were no protesting students and no one
else was attacked except for her. She further stated that t he security guard who shot her
fired two gunshots, but the second one missed her.
The trial and incidence of onus
[18] Even though the onus rested on the respondents to justify the admitted shooting,
the appellant accepted the duty to begin leading evidence. This was so because she
had to prove whether she was shot by the security guard in the employ of the first or
second respondent .
[19] The appellant was the only witness in her case. Two security officers, Mr
Stemel a and Mr M jika testified for the first respondent, while one security off icer, Mr
Collacott , testified for the second respondent. Where, in this judgment, reference is
made to these respective witnesses without the use of their titles, I intend no disrespect
to them but do so for the sake of brevity and convenience.
[20] Medical records that wer e discovered between the parties were admitted in
evidence, by agreement between the parties, on the customary basis that while there
would be no need to prove them, their correctness was not admitted.
The appellant ’s evidence
[21] The appellant denied that she , in any way , voluntarily assumed the risk of b eing
shot or that she was in any way negligent as the respondents allege d.
[22] She testified that she was inside the Chumani residence when she was shot.
This happened as she was about to exit the residence to go to the library in preparation
for her examination the next day. As she was alone on the stairway landing between the
2nd and 3rd floors, she encountered a security guard who was dressed in black attire and
who stood outside the residence at a distance of about three metres from her . The
security guard pointed the firearm towards the exit point of the residence which was at
the time on upper level in relation to where she was. When she was shot, she had not
done or said anything t o the security officer. At the time of the shooting, it was only her
and her shooter in the residence . In her words, “it was quiet ” in the residence , and there
were no protestors outside either .
[23] Further details regarding what happened to the appellant after she was shot
emerged d uring her cross -examination by counsel for the second respondent . In this
regard she told the trial court that a fter she was shot, she ran back to her room where
she found her roommate , Ms Zizipho Majingo whom she had left behind when she left
for the library . She phoned her family while her roommate brought security guards to the
room . She was accompanied out of her room by her roommate and the security guards
until they reached the 3rd floor of the residence where she was handed over to the
member s of the SCR . The members of the SRC accompanied her to the main gate of
the campus where she met her brothers who transported her to Hospital.
[24] Asked whether she was aware of the protest that was taking place on campus on
that day , the appellant testified , at first , that she was aware that there was a protest
taking place on that day even though she did not know where exactly o n campus it was
taking place. She went further and told the trial court during further cross -examination
on this aspect, that she did not hear any chanting of protest songs on the day she was
shot as she had remained in her room until she went out to go to the library. She had
last witnessed the protest on the pre vious days. Other than that, s he only saw a large
gathering of students who were standing calmly near the main gate of the campus as
she was being transported to hospital after she was shot.
[25] When her identification of her shooter was traversed in cross -examination, the
appellant told the trial court that the person who shot her was a security guard and she
identified her by his black attire and the fact that he also wore a war vest. According to
her, members of the first respondent wear black trousers and yellow shirts as their work
uniform. Due to the distance that she was at when she encountered her shooter, she
was unable to ascertain the security company logo or names that were embellished on
his attire . The appellant was also unable to deny or confirm what was put to her, that
black attire was worn by the first respondent’s tactical team. It was during further cross -
examination by counsel who represented the first and second respondents ,
respectively, that she testified that she was shot by ‘a white person’ who also wore ‘thick
lensed eyeglasses that looked like binoculars .’
[26] She disavowed her initial testimony in which she stated that she became aware
that a protest was taking place on campus even though she did not see where exactly it
was taking place. In short, the appellant distanced herself from the protest action and
insisted that she was inside Chumani residence when she was shot and that she never
saw anyone protesting on 08 June 2016. This concluded the appellant’s evidence.
The first respondent’s evidence
[27] Mr Stemel a told the court that he and two other security guards of the first
respondent were on duty on campus as the security guards who were sent there on 08
June 2016 to maintain order in the wake of the student protest s. They were together
with members of the second respondent . Keeping guard of the Great Hall was himself,
Mr Mjika, Mr Mzaca and members of the second respondent . His other colleague
identified only as ‘Ntobeko ’ watched over their vehicle which was parked near the
library.
[28] It was Mr Collacott, a member of the second respondent, who engaged in
discussion s with the students that they found in the precinct of the Great Hall when they
arrived on campus . When the discussions yielded no positive result , the members of the
second respondent drove the protesting students towards the Chumani residence on
ground level . When t he protesting students began throwing rocks and bottles at the
security guards , some of those objects got inside the Great Hall.
[29] At some stage he left the Great Hall under the guard of Mjika and Mzaca w hen
he received communication from Ntobeko that the security vehicle was about to be
burned . He went to fetch the vehicle and drove it to the main gate. On arrival at the
main gate, he found Collacott and also saw Mjika running being chased by the student s
who were attacking him. When Mjika fell down , the students dispossessed him of his
firearms – a paintball gun and shot gun. In order to rescue Mjika, he fired rubber bullets
at the students who then dispersed . The trial court further heard from Stemel a that he ,
Mzaca and Mjika were not part of the contingent of security guards who drove the
students towards the residence s and who fired shots at them. They remained in the
precinct of the Great Hall, and he could see from that position that the students were
positioned between th e Chumani residence and the group of security guards of the
second respondent. He could not, however , see what took place inside the residence.
[30] Mjika confirmed that while he and Stemel a were on guard at the Great Hall ,
Stemel a received a message that the protesting students were threatening to burn the
security vehicle which was parked near the library . He and Mzaca remained in guard of
the Great Hall as Stemel a went to fetch the vehicle that the students threatened to burn.
While Stemel a had left, he could hear shots being fired. At some point, the firing of
shots stopped, and he saw the members of the second respondent running towards the
gate. Realizing that the members of the second r espondent who were their backup were
retreating towards the gate, he and Mzaca also ran in different directions towards the
gate. As he ran towards the gate, he encountered a group of students who attacked him
with bricks and stone s. As a result of the att ack, he lost consciousness and sustained
wounds on his head, for which he subsequently received medical treatment in hospital.
While in hospital, Mzaca also arrived with injuries , and it appeared that he too had been
attacked.
[31] It also emerged from the evidence of Stemel a and Mjika, that they were dressed
in black trousers and gold shirt s, this being their work uniform as the employees of the
first respondent .
The second res pondent’s evidence
[32] Collacott told the trial court that as the second respondent ’s members , they went
to the campus on the special request of the first respondent since they have the
expertise in crowd management. Upon arrival on campus, they attended the area where
the protesting students were, being the Great Hall . They first negotiated with the
protestors , but this yielded no positive result . Instead, the protesting students began
throwing stones and bottles at them and on the windows of the Great Hall. They drove
the students towards the residence s and t he stone and bottle throwing endured for
about two hours.
[33] They fired rubber bullets and ceramic paint balls in self defence as the protesting
students were standing on the roof of the residence and they were positioned around
and behind them as they hurled rocks and bottles at them . They had no way of
escaping from behind the wall where they stoo d as they fired the rubber bullets and
paint balls at the students. The students were also armed with spades, picks and
machetes.
[34] According to Collacott none of the security officers from the second or first
respondent s went inside or near the Chumani residence. This, he said, was because
when the re is a strike action on campus, the security personnel are not deployed at the
residen ces but at security entrances and spots where there is riotous action . He wore
cargo pants, a black t -shirt and war vest as his work uniform. He did not we ar any
eyeglasses or binoculars. The tactical team of the first respondent wore black uniform. It
was his evidence further that if the appellant was shot outside the residence where the
rest of the protestors were, then , he or one of his colleagues from Falcon Firearm
Training Academy shot her in the circumstances of private defence already described.
He denied that he or his colleagues went inside the residence.
The findings of the trial court
[35] In dismissing the appellant ’s claim , the trial court found that her evidence was not
credible and fell to be rejected. This, said the court , was due to its contradictory nature
regarding her knowledge of the protest and her identification of her shooter. The court
further found that the appellant’s identification of Colla cott as her shooter was an
afterthought impelled by the fact that Collacott was present during the inspection in loco
that was conducted during the course of the hearing, and he demonstrated knowledge
of the shooting incident. It further found that her identification of her shooter as a ‘white
person ’ was opportunistic since Collacott was the only ‘white person ’ among the security
guards that were deployed to stabilize the campus.
[36] It was the trial court ’s finding further, that even though it was incontrovertible that
the second respondent was contracted by the first and therefore its employee, the
appellant , however, failed to establish her cause of action, namely, that she was shot at
Chumani residence by the members of the first and /or second respondent. The court
rejected the appellant ’s version as being incredible and unreliable .
The grounds of appeal
[37] The appellant , in essence , challenges the trial court’s findings of fact and
evaluation of evidence , as well as its alleged displacement of the onus by finding that
she had to establish the identity of the person who shot her .
[38] The grounds on which the ap pellant relies in this appeal , regrettably, appear to
be repetitive and in some instances they overlap. For ease of comprehension and clarity
I take the liberty of paraphrasing them hereunder without altering their content and
context. The appellant contends that the trial court erred in the following resp ects:
(i) Failing to accept her evidence as a single witness even though that evidence
was satisfactory in all material respects.
(ii) Failing to accept her undisputed and ‘uncontradictory ’ evidence that she was
shot in Chumani residence by a security guard while she was on the landing
area on the second floor.
(iii) Disregarding the fact that the security officers of the first respondent were in
no position to explain the shooting inciden t since they were not engaged in
the control of the protesting students between the Great Hall and Chumani
residence and therefore not present thereat when she was shot.
(iv) Failing to have regard to the fact that only the members of the second
respondent were in possession of ceramic paint balls which fact tends to
corroborate her version of the shooting.
(v) Placing the onus on her to prove the identity of her shooter, that is, whether
her shooter was a member of the first or second respondent.
(vi) Impugning her credibility concerning whether she had knowledge of the fact
that there was a protest taking place on campus when there was undisputed
evidence that during the time of the protest, she was preparing to write
examinations.
(vii) Finding that her identification of Collacott as her shooter was prompted by the
observations made at the insp ection in loco which was held at the beginning
of the trial in the presence of the respondents’ witnesses.
(viii) Not weighing the respondent’s pleaded case and bald denials of the shooting
against her testimony.
The issues for determination
[39] This Court is called upon to determine whether the trial court ’s finding s of fact
ought to be disturbed, in particular, whether it was incorrect in finding that the
appellant’s testimony fell to be rejected as being unreliable and lacking in credibility .
[40] We are also to consider whether the appellant’s shooting was justified and, thus,
whether the appellant as plaintiff in the trial court proved her claim on a balance of
probabilities. In so far as the alternative defences raised by the respondents are
concerned, this Court must also determine whether , on a balance of probabilities , it has
been established that the appellant consented to her injury by placing herself in harm ’s
way; as well whether, by her own negligence in the form conten ded for by the
respondents, she contributed to the injury that she suff ered.
The submissions on appeal
[41] On behalf of the appellant Mr Msiwa made these principal submissions. The
version p ut forward by the appellant regarding where , and the circumstances under
which she was shot at by a security guard , was not controverted . On th is basis, he
submitted that the appellant’s version ought to have been accepted by the trial court as
the truth. This, said Mr Msiwa , was all the more so that the appellant gave evidence
which was free of any contradictions. As a single witness, so the submission continued,
she gave evidence that was satisfactory in every material respect, thus entitling the
court to find in her favour on the basis of her single witness evidence.
[42] Mr Msiwa lamented the trial court’s finding that the appellant ’s identification of her
shooter was an afterthought. In this regard, he submitted that the court ascribed an
incorrect meaning to the description given by the appellant, viz, that her shooter was
‘white’, when it said that the person described as ‘white’ was Collacott. According to Mr
Msiwa , the appellant’s use of the word ‘white’ or ‘white person’ in describing her shooter
had no racial connotation but was with reference to the shooter’s complexion.
[43] It was further submitted on behalf of the appellant, that the trial court
impermissibly allowed the respondents to advance , during trial , a case far removed from
that which they each pleaded. Mr Msiwa went on to submit that the respondents even
failed to put to the appellant the case that each of them pleaded.
[44] Regarding whether the shooting was justified or not, Mr Msiwa submitted that the
respondents each proffered three materially different versions which warranted rejection
by the trial court.
[45] Mr Sintwa submitted on behalf of the first respondent that it cannot be liable for
the harm caused to the appellant since its members were not part of the conti ngent of
security guards tha t drove the protesting students back towards the residence s and they
did not shoot at the students.
[46] We brought to the attention of Mr Sintwa that there was evidence on the record
of proceedings before us, which suggests that an employee of the first respondent was
in possession of a shot gun from which rubber bullets were fired at the protesting
student, and that medical records from the hospi tal where the appellant was treated
indicate that she gave a history of being shot with a rubber bullet. On the issue of
vicarious liability, we further asked Mr Sintwa if, in light of the common cause fact that
the members of the second respondent were hi red by the first respondent to manage
the crowd of protesters, it did not follow, in any event , that the first respondent was liable
for the wrongful actions of the second respondent.
[47] Other than submitting that the first respondent stood by its heads of argument,
Mr Sintwa was unable to make any insightful submissions on the points we raised with
him. That being the case, in the heads of argument filed on behalf of the first
respondent, it was submitted that the trial court was justified in rejecting the appellant’s
version as being unreliable and incredible . On this score, it was further submitted that
the contradiction s apparent from the appellant’s evidence regarding her knowledge of
the protest action went to the heart of the issues that the trial court had to determine,
namely, whether it could be said that she was part of the protesting crow d and
therefore, put herself in harm’s way.
[48] It was further contended that the appellant’s identification of Collacott as her
shooter was an afterthought which inexplicably came about after the inspection in loco
and when she had already given her evidence in chief. This, so the contention
continued , was an act of embellishing and adapting her version.
[49] It was also submitted in the first respondent’s heads of argument that a further
factor that would, in any event, militate against the appellant’s version , is her failure to
call her roo mmate and a member of the SRC among those who assisted her after her
injury. In this regard it was contended that these witnesses would elucidate the location
of the appellant at the time of the shooting since this was a highly contested issue.
There is no indication from the record that the trial court was told whether the
appellant’s roommate and the relevant SRC member among those who accompanied
the appellant to the gate were available to testify or not . Be that as it may, i t was
contended that an adverse inference should be drawn , that the appellant did not call
these witnesses as she feared that they would give evidence adverse to her case.
Therefore, so the submission went, the trial court’s evaluation of the evidence cannot be
faulted.
[50] On behalf of the second respondent, Mr Botma submitted that the facts and
issue s agreed on by the parties in the further pre -trial conference referred to above,
properly set out the framework against which this Court should make a determination of
the appeal. He put emphasis on the fact that since the second respondent was
contracted by the first for the purposes of crowd control, the first respondent was
vicariously liable for the actions of the second respondent. Conversely, he said, if this
Court determines that the appellant was shot by the members of the first respondent, no
liability ensues against the second respondent as it cannot, as a hired servant of the
first respondent, be liable for the first respondent’s actions.
[51] It was Mr Botma ’s submission further that the trial court correctly rejected the
version of the appellant as being improbable on the basis that it was manifestly
contradictory pertaining to her knowledge of the protest . In the second respondent’s
heads of argument, it is further submitted that in as much as the appellant’s version was
that she was shot inside the Chumani residence, it was incumbent upon the trial court to
weigh her version against the version of the respondents and decide whether it was
probable.
[52] Furthermore, so Mr Botma submitted, there is nothing contradictory about the
second respondent’s version which, in essence was that the shooting was justified by
necessity and/or private defence, and that alternatively, the appellant voluntarily
assumed the risk of the injury for which he cl aimed damages against the respondents ,
by placing herself in harm’s way. The first respondent’s case, so the submission
continued , has always been that none of its members were ever inside Chumani
residence, and that the appellant could only have been shot while she was among the
crowd of protesters or in the vicinity of the protesting crowd , something which she
completely disavowe d.
The law
[53] A court of appeal will be hesitant to interfere with the factual findings and
evaluation of the evidence by a trial court and will only interfere where the trial court
materially misdirected itself insofar as its factual and credibility findings are concerned.
This is trite law.2 As held in S v Francis3:
“The powers of a court to interfere with th e findings of fact of a trial court are
limited. In the absence of any misdirection the trial court’s conclusion, including
its acceptance of a witness’ evidence, is presumed to be correct. In order to
succeed on appeal, the appellant must therefore convin ce the court of appeal on
adequate grounds that the trial court was wrong in accepting the witness ’
evidence a reasonable doubt will not suffice to justify interference with its
findings. Bearing in mind the advantage which a trial court has of seeing, hea ring
and appraising a witness, it is only in exceptional cases that the court of appeal
will be entitled to interfere with a trial court’s evaluation of oral testimony.”
[54] Therefore, in order for this Court to disturb the findings of fact that the trial court
made, there must be a demonstrable material misdirection on its part in its assessment
of the evidence.
[55] Concerning the incidence of the onus, the distinction between the onus of proof
and the evidentiary burden of proof must be kept in mind. As held in Pillay v Krishna and
another4, the word ‘onus’ means the duty which is cast on the particular litigant, in order
to be successful, of finally satisfying the court that he is entitled to succeed on his claim,
or defence, a s the case may be.5 Put another way, the onus of proof is the duty of a
party to present evidence on the facts in issue which is necessary to establish his or her
claim or defen ce on the standard of proof required by law. This is th e overall onus of
2 R v Dhlumayo and another 1948 (2) SA 677 (A).
3 1991 (1) SACR 198 (A) at 198j – 199a.
4 1946 AD 946.
5 Id, at 952 -953; see also, South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd 1977 (3) SA 534 (A) at 548.
proof which does not shift from the party upon whom it originally rested .6 In civil
proceedings, the overall onus rests on the plaintiff to prove his/her claim on a balance of
probabilities.
[56] The evidentiary burden, on the other hand, is the duty of a party to present
evidence sufficient to establish or rebut a fact in issue in order to establish a prima facie
case or to rebut one where it has been made against him/her . The evidentiary burden
may shift from one party to the other in the course of the proceedings, depending on the
measure of proof furnished by a particular litigant .
[57] The Court, in Pillay v Krishna explained it this way :
“If one person claims something from another in a Court of law, then he has to
satisfy the Court that he is entitled to it. But there is a second principle which
must always be read with it: Where the person against whom the claim is made
is not content wi th a mere denial of the claim, but sets up a special defence, then
he is regarded quoad that defence, as being the claimant: for his defence to be
upheld he must satisfy the Court that he is entitled to succeed on it … But there
is a third rule, which Voet states… as follows: ‘He who asserts, proves and not he
who denies, since a denial of a fact cannot naturally be proved provided that it is
fact that is denied and that the denial is absolute’. The onus is on the person who
alleges something and not on his opponent who merely denies it.’7
[58] Where, as in the present case, the respondent admits the act complained of by
the appellant as being actionable in law, the onus rests on that respondent to prove that
the act complained of was justified. The corol lary is that once a prima facie case is
established by the respondent concerning its defence, the appellant becomes burdened
with the duty of presenting evidence sufficient to rebut th at prima facie case.
6 Brand v Minister of Justice and Another 1959 (4) SA 712 (A) at 715).
7 Id, at 951 -952.
[59] Lest there be confusion – that a plaintiff , in terms of Uniform Rule 39(13) carries
the duty to lead evidence first where she /he has the onus of adducing evidence on one
or more issues , does not place on him or her the overall onus of proof, but rather has
more to do with that plaintiff’s duty to adduce evidence in order to prove such an issue .
This, to my mind, accords with the principle that a party who bears the onus of proof has
a duty to begin leading evidence on the issues on which the onus of proof rests on
him/her.
Discussion
[60] The issue of the appellant’s identification of her shooter became a strenuously
contested issue on appeal before us as it appear s to have been in the trial court . In the
light of the view I have of this issue, I deem it necessary to deal with it first.
[61] It is indeed so, that the identification of Collacott as the appellant’s shooter only
came about during further cross -examination of the appellant on applicat ion by Mr
Sintwa who represented the first respondent . The context to this aspect of the
appellant’s evidence is to be gleaned from the following excerpt of the record:8
‘MR SINTWA: Now yesterday you describe d, even today you confirm, the
attire that is person was wearing, actually black, is there any
other thing which you can say you observed from that
person? (interpreter interprets). Which you observed . . .
(indistinct) which you observe on that security gu ard.
WITNESS: Yes, there is, M’Lord.
MR SINTWA: Yes, what is it, a’am?
WITNESS: The complexion of that person, he was a light complexion.
MR SINTWA: Light in complexion?
WITNESS: He was a white person, M’ Lord.
MR BOTMA: A white person?
8 Record, page 212, from line 5 onwards.
INTERPRETER: A whit e person. ’
[62] From this point the witness goes on to describe the eyeglasses or binoculars that
the person she described wore. Further cross -examination by Mr Botma on the issue of
the identity of the appellant’s shooter is encapsulated in the excerpt b elow:
‘MR BOTMA: I put it to you that after ten members – security guards
present on that day there was only one white person.
(Pause) Of the ten security, amongst then there was only
one white person.
WITNESS: That I do not have knowledge of, M’Lord.
MR BOTMA: Now, I’m pu tting it to you, that I putting it to you the person –
the on person . . . (indistinct) the witness – the person sitting
in court here.
WITNESS: That I don’t know of as well, M’Lord.
MR BOTMA: Ja, and he will deny that he was at all at the point that you
pointed out where the security guard was today.
WITNESS: That I don’t have knowledge of, M’ Lord.
MR BOTMA: And you cannot say that it was the person in court who was
the one who fired the shot at you? (Pause) You cannot say
that him, the person at the ba ck of the court was the person
who fired the shot at you?
WITNESS: That I don’t have knowledge of, M’ Lord.
MR BOTMA: Thank you, M’Lord. ’
[63] There being no re-examination of the witness by Mr Msiwa , the court excused
the appellant .
[64] I should perhaps emphasize at this stage the importance of accurate and
competent interpretation during court proceedings. As held in S v Saidi9, the court10 has
9 2007(2) SACR 637 , para 14, see also S v Mponda 2007(2), SACR (C) [2004] 4 All SA 229 (C) .
a duty to ensure that a competent interpreter is used in criminal proceedings . Although
this was held in the context of criminal proceedings , the principle regarding competen ce
holds true for civil proceedings where a witness testifies in a language of their own
choice not being one of record .
[65] I note that at some point during the trial counsel on both sides complained of
inaccurate interpretation by the interpreter, but in my view, that instance has not vitiated
the evidence that was adduced , since all counsel availed themselves of the opportuni ty
to correct that which was inaccurately interpreted.
[66] However, t he trial court’s interpretation of what was said regarding the ‘white
person ’ is troubling. This is compounded by the court’s fail ure to seek clarity on the
meaning of ‘white person ’ in the light of the context that the above quoted excerpts of
the record provide .
[67] It bears emphasizing that the c ourt’s role in court proceedings is not that of an
umpire who merely ensures observance of the rules of the game. In R v Hepworth11 it
was held that a Judge is an administrator of justice, he is not merely a figurehead, he
has not only to direct and control the proceedings according to recognized rules of
procedure but to see that justice is done. I may add that i n as much as the fiel d of the
fray in civil proceedings is even in the sense that both parties litigate on the same level,
this principle holds true where the proceedings are conducted in a manner that might
result in a miscarriage of justice.
[68] It is equally concern ing th at Mr Msiwa who represented the appellant in the trial
proceedings also did not correct the manifestly inaccurate interpretation regarding the
description of the appellant’s shooter. He could and should have done so during re -
examination of the appellant after she was cross -examined by counsel for the first and
second respondents.
10 In that case reference was made to magistrates, but this ought to apply similarly to judges. following the
approach in S v Mponda supra.
11 1928 AD 265 at 277.
[69] From the above quoted excerpt s of the record, properly construed, the appellant
only identified her shooter by his light complexion and attire. She was unable to tell
whether that person was a security guard of the first or second respondent . In context,
the appellant described her shooter according to his skin colour or tone , it is unclear if
she actually meant ‘white ’ in a sense connoting race. This view is fortified by the fact
that when the appellant was asked by Mr Botma who represented the second
respondent if Collacott who was present in court was the ‘man that shot her’, she
answered “I have no knowledge of that.”
[70] I am in agreement with the submission made by Mr Msiwa that it was incorrect ,
regrettably, for the trial court to ascribe to the use of ‘white’ or ‘white person’ the
meaning that it ascribed, namely, that the description related to Collacott as a person of
the white race . This is more so that the trial court did not seek to establish this as a fact
from the appell ant herself when she was still in the witness stand.
[71] With this said, sight must not be lost, of the fact that the trial court ’s rejection of
the appellant’s evidence as being unreliable and lacking in credibility was not based
only on how she identifi ed her shooter. The trial court made further credibility findings as
to probabilities, regarding the appellant’s knowledge of the protest and her location
when she was shot. No miscarriage of justice resulted from the trial court’s failure to
seek clarity regarding the use of ‘white person’ in the context as it appears from t he
quoted excerpts of the record.
[72] Even assuming that the appellant had told the trial court that she was shot by
Collacott or a member of the first respondent for that matter, a determination would still
have to be made, whether on the totality of the evidence , Collacott (or any of the
security guard s on campus ) was ever inside the residence . Put differently, t he question
would be whether it was more probable than not that the appellant was among the
protestors or in their vicinity when she was shot. This is the central issue to the trial
court ’s findings of fact, one of the aspect s of this appeal to which I now turn.
[73] A reading of t he pleadings direct s that since the shooting was admitted by the
second respondent but denied by the first , the second respondent had the onus to
establish its defence of private/self defence, as well as the alternative defences of
volenti non -fit injuria and contributory negligence on the part of the appellant . The
corollary of the second respondent’s involvement in the shooting is that the first
respondent, as its employer, would be vicariously liable for any delict that they
committed in the course of their employment as the persons contracted by it to manage
the crowd of protesting students.
[74] The appellant , in turn, became saddled with the duty (a rebuttal onus) to present
evidence that would displace any prima facie case to the extent established by the first
and second respondents. Such evidence included an explanation by her regarding the
place and circumstances under which, in her version, she was shot, and th e person who
shot her since this, as the respondent’s respective pleas indicate, was denied with
further facts pleaded in amplification of that denial.
[75] The appellant was indeed a single witness whose evidence could found
judgment in her favour only if the court was satisfied that it was credible . The Civil
Proceedings Act 25 of 1965 , in section 16, confirms this position by providing that
judgment may be given in any civil proceedings on the evidence of any single
competent and credible witness . There is no suggestion from the record that the
appellant was not a competent witness .
[76] In determining the credibility of a single witness, the correct approach has always
been for the court to weigh that witness’s evidence, consider its merits and demerits
and having done so, to decide whether it is trustworthy and whether despite the fact that
there may be shortcomings or defects or contradictions in the testimony, the court is
satisfied that the truth has been told.12
12 S v Sauls and Others 1991 (3) SA 172 (A) ; S v Webber 1971 (3) SA 754 (A) at 758.
[77] In casu , the trial court was faced with three conflictin g versions – that of the
appellant who testified that she was shot inside Chumani residence for no apparent
reason at all, and that when she was shot it was quiet inside the residence, with only
her and her shooter in the vicinity of the shooting .
[78] The second version was that of the first respondent whose witnesses told the
court that they did not take part in the shooting, and instead their members were
dispossessed of two shot guns and a paintball gun, and two security guards were
severely ass aulted by the students. The first respondent ’s witness es both denied ever
going inside the residence during the mayhem.
[79] The third version was that of the second respondent, who as mentioned,
admitted that its members fired shots of rubber bullets and ceramic ball s at the
protesting students but that they did so in self/private defence or out of necessity in the
circumstances already described. Collacott testified that none of the second
respondent’s members went inside the residence as the crowd of protesting studen ts
had been attacking them from outside the residence.
[80] It is readily discern ible from the judgment a quo that t he court was mindful of the
approach to be followed in resolving mutually destructive versions from opposing
parties. In National Employers General Insurance Co Ltd v Jagers13, this approach was
articulated as follows :
‘In a civil case the onus is obviously not as heavy as it is in a criminal case, but
nevertheless where the onus rests on the plaintiff as in the present case, and
where there are two mutually destructive stories, he can only succeed if he
satisfies the Court on a preponderance of probabilities that his version is true and
accurate and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken and falls to be rejected. In deciding
1313 1984 (4) SA 437 (ECD), a 440 D -G; see also Stellenbosch Farmers’ Winery Group Ltd and Another v
Martell & Cie SA and O thers 2003 (1) SA 11 SCA at 14i -15d.
whether that evidence is true or not the Court will weig h up and test the plaintiff's
allegations against the general probabilities. The estimate of the credibility of a
witness will therefore be inextricably bound up with a consideration of the
probabilities of the case and, if the balance of probabilities fav ours the plaintiff,
then the Court will accept his version as being probably true. If, however, the
probabilities are evenly balanced in the sense that they do not favour the
plaintiff's case any more than they do the defendant's, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that his evidence
is true and that the defendant's version is false.’
[81] That the protesting students were throwing rocks and bottles at the security
guards and at the windows of the Great Hal l remained uncontroverted . So did the
evidence that the protesting students severely assaulted two security guards who were
members of the first respondent. Equally unchallenged was the evidence of the
respondents’ witnesses that the security guards were d ispossessed of three shot guns
by the students.
[82] Apart from the foregoing, Collacott’s stance throughout the trial remained that
since his co -members from the second respondent had fired the shots, if the appellant
was shot by them as the members of t he second respondent, she could only have been
shot while she was part of or in the vicinity of the protesting students, and not inside
Chumani residence as they had no reason to be inside residences and in fact did not go
therein .
[83] A disconcerting fea ture of the appellant’s evidence is that at first, she had stated
that she was aware on the day of her shooting that there was a protest taking place
even though she did not know where about in the campus it was taking place. She later
changed this version and told the court that she last witnessed a protest the previous
days . She persisted with her version that on 08 June 2016 she did not hear any
chanting of protest songs, nor did she become aware of any pandemonium on campus .
When hard p resse d on this issue, being reminded of her earlier testimony on this
aspect, she went as far as disavowing her earlier testimony in this regard .
[84] The record before us speaks for itself. It is difficult, therefore, to fathom how the
appellant could honestly distance herself from having told the trial court that she
became aware of the protest that was taking place on campus on the day of her
shooting . Not only that, but the appellant went as far as avoid ing to make innocuous
concessions such as her awareness of the presence of other students in the residence.
It is understood why, counsel for the second respondent , suggested to her that ‘she
lived in a world of her own totally oblivious to her surroundings. ’
[85] Against this background, this Court must weigh the probabilities as they arise
from the conspectus of all the evidence and the circumstances of the case. As held in
Maitland and Kensington Bus Co (Pty) Ltd v Jennings,14 for judgement to be given for
the appellant , the Court must be satisfied that sufficient reliance can be placed on her
story for there to exist a strong probability that h er version is the true one. And, in Ocean
Accident and Guarantee Corporation Ltd J v Koch,15 it was held that the evidenc e
presented by the burdened party must be such that the court can say that it is more
probable than not for the burden to be discharged. However, if the probabilities are
evenly balanced , then the burden has not been discharged by the party on whom it
rests.
[86] To my mind, the appellant’s avoidance of concessions that would do no harm to
her case and her disavowal of the testimony which the record before us captured, was
indicative of a witness who was determined to conceal the truth in the mistaken belief, if
not ill advice , that her version would be considered alone from the rest of the evidence
and therefore incontrovertible and even credible .
14 1940 CPD 489 at 492.
15 1963 (4) SA 147 (A), at 157D.
[87] A question that ought to follow is why the appellant would have been inclined to
sanitize herself of any facts that would place her anywhere near the group of protesting
students. I can think of only one, and it is that she was indeed part of the protesting
student, or she knowingly placed herself at the risk of being shot by being in the vicinity
of the pandemonium that unfolded in the campus. For t here does not appear, on the
conspectus of the evidence, to have been any logical reason for any of the members of
the first and/or second respondents to have been inside the Chumani residence, let
alone to hav e shot at a student who posed no threat of harm to them. Regard must,
furthermore, be had to the fact that on the record before us , no evidence was adduced
nor issue raised regarding the possibility of someone other than the security guards
shooting the ap pellant at any other point during the mayhem , except for what she told
the court in this regard , that she was shot by a security guard at the Chumani residence.
Therefore, it is this Court’s view that the appellant’s description of how she was shot
tends to defy logic.
[88] I interpose to deal with the submission made on behalf of the first respondent
that an adverse inference must be drawn from the appellant’s failure to call her
roommate and the member o f the SCR as witnesses. A failure to call a witness may,
under certain circumstances, justify an adverse inference being drawn against the party
failing to call such a witness. In Elgin Fireclays Limited v Webb16 the court held:
“[I]t is true that if a pa rty fails to place the evidence of a witness, who is available
and able to elucidate the facts, before the trial court, this failure leads naturally to
the inference that he fears that such evidence will expose facts unfavourable to
him. . . But the infere nce is only a proper one if the evidence is available and if it
would elucidate the facts. . .”
[89] From the above quote d passage, it follows that there are two requirements to the
drawing of an adverse inference from a party’s failure to call a witness. The witness
16 1947 (4) SA 744 at page 749 -750; see also Tshishonga v Minister of Justice and Constitutional
Development and Another 2007 (4) SA 135 (LC) ; Boyce NO v Bloem 1960 (3) SA 855 (T) at 864 .
must be available, and his/her evidence must be such that it would elucidate the facts.
The appellant testified that after the shooting she went back to her room where she
found her roommate and that she was accompani ed to the main gate by member s of
the SRC. Alongside this is her evidence that when she was shot, it was quiet in the
residence with only her and her shooter.
[90] The evidence of the appellant’s roommate and an SRC member among those
who accompanied her to the main gate of the campus would elucidate the facts
regarding the circumstances under which she was shot . Since it emerged during the
appellant’s cross -examination that her roommate was in the room they shared at the
time of the shooting ; and since, on her version , the shooting occurred in side the
residence, it is not farfetched that her roommate would have heard the sound of the
gunshot. Her roommate would elucidate this fact in so far as the shooting i s concerned.
This is against the background that the point where the appellant was shot at was
strenuously contested .
[91] I have already mentioned that there is no indication from the record that the trial
court was told whether the appellant’s roommate and the SRC members were available
to testify o r not. When counsel for the appellant made his opening address at the
commencement of the trial, he did not make specific mention of witness that the
appellant would call in support of her case. He made a gene ral submission that the
evidence he would lead would relate to the appellant ’s assertion that she was not part of
the protesting crowd of students and posed no threat to the security guards at the time
she was shot at.
[92] Regard must be had to the fact that the shooting incident took place in 2016, and
the trial of the case commenced four years later. It was necessary that an indication be
given regarding the availability of the appellant’s roommate to testify. This was not done.
In the absence of an indication from the record whether these witnesses were available
to testify or not as at the time of trial, I am not persuaded that it would be appropriate for
this Court to draw an adverse inference from the appellant’s failur e to call them. That
being so, I must still consider the evidence of the appellant as a single witness.
[93] The contradictory evidence that the appellant gave regarding her awareness of
the protest is not immaterial. It goes to the heart of probabilities . It seems to me that on
the totality of the evidence on the record before us, it is more probable than not that the
appellant was shot at while she was among the protesting crowd or in their vicinity. The
probabilities favour the version that the responde nts put forward. The appellant’s
evidence as a single witness, contrary to what was contended for on her behalf, is far
from being credible.
[94] For these reasons, there is no basis for criticizing the trial court’s finding that the
appellant’s evidence was unreliable, lacking in credibil ity and tailored . I turn to deal with
whether the respondents could be found liable, on their version, for the harm caused to
the appellant as a result of her shooting.
[95] Even though at first, it was contended that the members of the first respondent
were never in possession of paint ball guns and were not involved in the ground control
of the protesting crowd of students, there is, on the other hand, undisputed evidence
that the appellant was shot with a rubber bullet and that the members of the first
respondent were in fact also armed with shotguns from which rubber bullets were fired .
That the members of the second respondent too fired rubber bullets and ceramic balls
at the protesting students is also beyond controversy. But was this shooting justified? In
the discussion that follows I deal with this question.
[96] It is trite that c onduct which is directed against an innocent person for the
purpose of protecting an inter est of the actor or a third party, against a dangerous
situation justifies wrongfulness (unlawfulness) on the basis of necessity.17 The test is
17 Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) para 23, and all authorities referred
to therein.
objective, the question in each case being whether the conduct that caused the harm
was a reasonable response to the situation that presented itself.18
[97] In Chetty v Minister of Police19 , it was held that for the police to escape liability
for the harm caused by them on the ground of necessity, there must have been
reasonable grounds for thinking that because o f the situation they were faced with,
there was imminent danger or it had commenced, such as danger of injury to persons or
damage to or destruction of property as to require police action. The means used in an
endeavour to restore order and avert such dan ger, and resulting in the harm or injury
must not be excessive, having regard to all the circumstances, such as, inter alia , the
nature and the extent of the danger, the likelihood of serious injury to persons, the value
of the property threatened.20
[98] The dictum of Van Winsen AJ in Ntanjana v Vorster and Minister of Justice21 is
instructive, with respect, when he cautioned that in deciding whether there was a
necessity to act in self -defence the court must place itself in the position of the person
claiming to have acted in self -defence and consider all the surrounding factors operating
on his mind at the time he acted. The court must be careful to avoid the role of the
armchair critic, wise after the event, weighing up the matter in the secluded secur ity of
the courtroom.22
[99] The enquiry in this regard , in the instant appeal , begins with whether the first and
second defendants have established that there were reasonable grounds for thinking
that their lives and those of others, and the University property were in danger of harm
and destruction.
[100] It has not been disputed t hat the protesting students attacked the security guards
with rocks and bottles, and some were armed with spades, picks and machetes. The
18 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA) at para 10.
19 1976 (2) SA 450 (N).
20 Ibid at 452F – 453C.
21 1950 (4) SA 398 (C)
22 Ibid at 406A.
intensity of the violence and how rapidly it escalated has also not been disputed.
Similarly, it was not disputed th at the protesting students also threw rocks and bottles at
the windows of the buildings, and that they were threatening to disrupt examination and
harm those students who were writing examinations and not participating in the protest.
The less harmful ways of dispersing the crowd of protesting students, namely, the
negotiations that Collacott engaged in had failed.
[101] I have no difficulty finding that the respondents were faced with a threat of harm
to their lives and limb , and there was palpably a threat of damage to the property of the
University . Furthermore, the lives of the innocent parties who were not participating in
the protest were equally at risk of injury . The respondents were justified in their resort to
the use of the force that they ap plied in averting the harm that had ensued and was
ongoing. T he next question is whether the amount of force they applied was excessive.
[102] It is equally undisputed that the protesting students were armed and in a large
number of about 500 as against a small group of a total of 10 security officers. The
unchallenged evidence of the first and second respondents is that the students had
outnumbered the contingent of security guards. The trial court was told by Stemel a and
Collacott that rubber bullets and ceramic ball s from shot guns and paint ball guns are
fired on the lower body. Logically this is to prevent injury to the fatal parts of a person’s
body.
[103] How did it come about then, that the appellant was shot in her eye , one might
ask? This question would best have been answered by the appellant had she given
honest and reliable evidence in the court a quo regarding her location at the time of her
shooting. Were this Court to attempt to find an answer to this question in circu mstances
where the appellant ’s chosen scene of the shooting was inside the residence, that
would amount to treading on the realm of conjecture. Apart from th at, this would amount
to this Court making up a case which the appellant did not put forward and wh ich the
respondents had no opportunity to traverse in defence.
[104] That being said, i t cannot be said that the respondents applied excessive force in
dispersing the protesting crowd of students in the circumstances portrayed in the record
before us. I deal next with the alternative defence of the appellant’s voluntary
assumption of injury.
[105] A restatement of the law regarding voluntary assumption of injury is necessary. In
instances where it is alleged that a person, by his own conduct brought unto him or
herself the harm he suffered (voluntary assumption of risk of injury), volenti non fit
inuiria is a maxim in our law which is to the effect that he who consents to injury cannot
complain, for n o one should recover damages for the injury to which he brought unto
himself.23 The onus rests on the respondents to establish the defence of voluntary
assumption of risk of injury.24 For the present purposes, t he respondents had to allege
and prove that the appellant had knowledge of the risk; appreciated the ambit of the
risk; and consented to the risk (expressly or impliedly).25
[106] The law further states that where it is shown that the plaintiff foresaw the risk of
injury and had knowledge and an appreciation of the danger, consent will be implied.26
For the defence of consent or voluntary assumption of risk to operate against the
plaintiff, the injuries and harm caused must be caused by the materialization of a risk
which was subjectively foreseen, appreciated and assumed by the plaintiff.
[107] A two-pronged test applies in determining the knowledge of risk by the plaintiff.
There must first be an objective assessment of the facts establishing the nature of the
inherent risk that existed. Secondly, it must be determined whether the plaintiff foresaw
the actua l risk that later ensued and caused his injuries.27
23 Maartens v Pope 1992 (4) SA 883 (N) at 886 G -H.
24 Santam Insurance Co Ltd v Vorster [1973] 4 All SA 558 (A), 1973 (4) SA 764 (A).
25 Alberts v Engelbrecht [1961] 2 All SA 611 (T), 1961 (2) SA 644 (T), Durban City Cou ncil v SA Board
Mills Ltd [1961] 3 All SA 344 (A), 1961 (3) SA 397 (A) 406 –407.
26 Vorster at 779.
27 Vorster supra.
[108] A finding has already been made that on the totality of the evidence the
appellant’s version of how she got injured is improbable and out of kilter with logic. On
the other hand, t he uncontroverted version of the respondents , viewed alongside that of
the appellant, establishes , on a balance of probabilities that :
(a) At no stage did t he contingent of security guards on campus go inside
Chumani residence in the course of their control of th e protesting crowd. The
appellant would have been among the protestors or would have placed
herself in the vicinity of the aggressive protesting students and the already
described reaction of the security guards .
(b) With her conjured -up version , she wanted to conceal the fact that she was
there .
(c) The surrounding circumstances clearly indicate that there was indeed risk of
harm.
(d) Therefore, she subjectively foresaw the risk of harm ; and
(e) She i mplicitly consented to the injury by placing herself in harm’s way.
[109] I have come to the conclusion that the whole edifice of the appellant’s case must
collapse , the appeal must ther efore be dismissed, as its very foundation is shaky, to put
it mildly . The alternative defence of voluntary assumption of injury that the first and
second respondents put forward must succeed for, inter alia , the reason that the
appellant could n ot and did not put up any version about how else the situation could
have been handl ed as she chose to distance herself from the protests . This has left the
respondent s’ version in that regard uncontested .
[110] With all that having been said , it would be insensitive of this Court not to
acknowledge the pain and horror of what the appellant experienced when she lost sight
of her eye. While there ought indeed to be sympathy for the appellant ’s plight, the fact
that she elected not to be candid and presented a false version of events regarding the
circumstances under which she was shot militates against her succeeding with the
result that the version of the respondents prevails. The appeal must accordingly fail.
Costs
[111] Concerning costs , it is necessary to mention that this appeal first served before
this Court on 05 February 2024. On th at day it appeared that the record of the appeal
was not in order as it was not properly collated by the appellant. As a result, it was
postponed to a date that would be determined by the Registrar . It has been determined
that the costs occasioned by the postponement of the appeal on that day would be in
the cause. The general principle is that costs follow the result. I see no reason why this
Court should deviate from this principle in this appeal.
[112] In the result, I would make the following order:
1. The appeal is dismissed with costs on scale A referred to Uniform Rule 67A and
such costs include the costs of 05 February 2024.
__________________
L. RUSI
JUDGE OF THE HIGH COURT
I agree and it is so ordered :
________________________
G. N. Z. MJALI
JUDGE OF THE HIGH COURT
I agree:
______________________
M. S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the appellant : Adv PV Msiwa SC.
Instructed by MJULELWA INC ATTORNEYS
Unit 2 Glencombe
45 Leeds Road
MTHATHA
Counsel for the first respondent : Adv. S Sintwa
CHRIS BODLANI ATTORNEYS
28 Madeira Street
MTHATHA
Counsel for the second respondent: Adv. DC Botma
MELLO OWS & De SWART INC.
C/o 34 Stanford Terrace
MTHATHA
Date heard : 04 November 2024
Date delivered : 11 February 2025