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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 1886/2020
Before the Hon. Justice Slingers
Hearing: 12 February 2025
Judgment Delivered: 19 March 2025
In the matter between:
C[...] F[...] G[...] Plaintiff
and
FIDELITY SECURITY SERVICES Defendant
This judgment is handed down electronically by circulation to the parties’ legal
representatives’ email addresses. The date of hand -down is deemed to be 19 March
2025 .
___________ _______ ___________________ _________________________ _____
JUDGMENT
__________ _____ ____________________________________________________
SLINGERS J
INTRODUCTION
[1] On 7 February 2018 and at or near Glasogie street, Avian Park, Worcester
the p laintiff sustained a gunshot wound which caused him to suffer damages.
During January 2020 the plaintiff instituted action proceedings against the
defendant for payment of his damages. By agreement between the parties
and in accordance with Rule 33(4) the merits of the plaintiff’s claim and the
issue of liability was separated from the quantum of the plaintiff’s claim. This
judgment pertains to the merits of the plaintiff’s claim and the issue of liability.
[2] The plaintiff alleges that he was wrongfully sh ot by Sipato Faku (‘Faku’) , who
at all relevant times was acting in the course and scope of his employment
with the defendant.1 In pleading to the plaintiff’s case, the defendant admitted
that Faku fired a shot using the firearm issued to him by the defen dant and
that at all relevant times Faku acted in the course and scope of his
employment with the defendant.2
[3] The defendant denied that the plaintiff was unlawfully shot by Faku.
[4] Below is an excerpt from the plaintiff’s updated pre -trial minute filed in respect
of the merits of the matter dated 1 February 2023 . The updated pre -trial
minute was signed by both the plaintiff’s and defendant’s legal
representatives.
‘10.1 Does the Defendant admit that, on or about 7 February 2018, it and/or
its employee/s sh ot the Plaintiff, at or near Glasogie Street, Avion Park
Worcester. (sic)
10.1.1 Defendant’s reply: This is denied.
10.2 Does the Defendant admit that the Plaintiff was unlawfully shot by the
Defendant and/or its employees.
10.2.1 Defendant’s reply: This is denied. ’
[5] It is clear from the defendant’s plea and the above excerpt that the defendant
denied that the plaintiff was shot and furthermore denied that the plaintiff was
shot by one of its employees.3
1 Paragraphs 3 and 4 of the plaintiff’s particulars of claim
2 Paragraphs 3 and 4 of the defendant’s plea
3 See also paragraphs 5.1 to 5.3 of the defendant’s heads of argument.
[6] The trial in respect of the merits of the plaintiff’ s claim commenced on 21 May
2024 .
THE EVIDENCE
[7] The plaintiff called numerous witnesses to testify on his behalf. Amongst
these witnesses was Erika Stemmet (‘Stemmet’) . She testified that she is a
clinical and neuropsychological psychologist. She testifie d that the plaintiff
presents with symptoms of post -traumatic stress disorder (‘PTSD’) and
depression .
[8] The overwhelming majority of Stemmet’s evidence was irrelevant to the
question of liability and more befitting to the issue of quantum. Stemmet
testif ied how the plaintiff reacts to certain types of gunshots , his social
functioning, his current living circumstances, his experiences of chronic pain,
his qualifications and skill set and how he has adjusted to his current situation.
[9] Stemmet testified that the plaintiff’s PSTD c ould impact on the manner in
which he testifie d about the incident in court in that he could become
emotional and avoidant as he may not want to talk about the incident.
However, when the plaintiff testified , the court was left with the impression
that he was eager to have his day in court and that he displayed no reluctance
to talk about the incident.
[10] The plaintiff also called Hannes Beukman to testify in support of his case. He
testified that he is a sergeant in the South African P olice Services (‘SAPS’)
and that he is stationed at Worcester. He was on duty on the day of the
incident and was called to the scene of the shooting incident where he
encountered the plaintiff. He testified that the plaintiff informed him that he
was sho t by a Fidelity Fund security officer.
[11] He identified the gate shift mechanism (‘pennetjie ’) which the plaintiff had
with him, and which was found at the scene. He testified that no firearm was
found on the scene .
[12] During cross examination Beukman testifie d that Avian Park was not an area
that was plagued by crime and gang activities. However, the area is currently
plagued by gang activity which started to increase in 2020/2022. He also
testified that the cigarette vehicles would be escorted by security.
[13] He testified that Fak u was arrested and his warning statement was taken by
sergeant Mgidwa.4.
[14] Danny Romario Franco Van Zyl testified (‘Van Zyl’ ) testified that he is
currently 28 years old and that he was 18 years old at the time of the incident .
He resi des in Avian Park, Worcester. The highest grade he passed was
grade 11.
[15] He knows the plaintiff and knows him from Avian Park, where he resides . He
knows the plaintiff as Barbie.
[16] On the day of the incident Van Zyl was on his way to his home to fetch his
work uniform . He met the plaintiff on the corners of Tinktinkie and Glasogie
street s. He testified that the plaintiff told him that the people in the cigarette
van who had passed them think s he has a firearm . During cross examination,
Van Zyl testified that the plaintiff did not give any explanation or reasons why
he believed they thought he a firearm.
[17] While Van Zyl was speaking with the plaintiff a guard dressed in the
defendant’s unifo rm with the defendant’s badge approached them . The guard
spoke Eng lish and instructed Van Z yl to lay down, which he did with his hands
extended out in front of him. It is common cause that the guard was Fak u.
4 I do not deal with the other evidence presented as it was not relevant to the final decision made
herein
After instructing Van Zyl to lie down, Faku pointed his firearm at the plaintiff
and shot him in the stomach. The plaintiff fell down after he was shot.
[18] Van Zyl testified that Faku did not ask the plaintiff any questions before he
discharged a single shot. He saw the plaintiff getting shot in his stomach.
After the plaintiff was shot the Fidelity security van arrived on the scene and
the driver got out. The driver asked Fak u ‘where did you shoot him?’ and
Faku responded by stating ‘I shot him in the stomach.’
[19] Thereafter, both Fako and the driver got into their vehicle and drove away.
[20] Van Zyl testified that he saw the plaintiff play with the “pennetjie” with his
fingers when he met with him before the incident.
[21] During cross examination Van Zyl testified that there w as gang activity in
Avian Park during 2018 and that there were lots of gang related incidents.
[22] The plaintiff still had the “pennetjie” in his hands when Faku approached
them . During cross examination, he testified that the plaintiff had both the
“pennetjie” and a cigarette in his hands. Unlike Van Zyl, the plaintiff did not
lay down on the ground but stood up.
[23] The plaintiff testified that he is currently 23 years old but at the time of the
incident he was 16 years old. At the time of the incident he resided in Avian
Park, Worcester, where he continues to reside. The highest grade he passed
was gr ade 9.
[24] He testified that on 7 February 2018 he was shot by a Fidelity security guard
at the corners of Glasogie and Tinktinkie streets.
[25] The plaintiff who was diagnosed with ADHD took the “pennetjie” with him
when he left his home earlier the day. He played with it while he was walking
as it had a calming effect on him. He put the “pennetjie” in his right -hand side
under his shirt but it hurt him as he walked so he shifted it to the front of his
shirt.
[26] He encountered Van Zyl on the corners of Glasogie and Tinktinkie streets and
they started talking with the plaintiff siting on his hurcles . He noticed that the
cigarette vehicle which was without the Fide lity security vehicle . He found this
strange as the cigarette vehicle is always accompanied by the Fidel ity security
vehicle. He comm ented on this to Van Zyl. The plaintiff testified that during
the time he was speaking with Van Zyl he put the “pennetjie” into his pocket
but it fell out so he put it by his right-hand side under his shirt.
[27] The plaintiff was sitting on his hunches on the corner . While the plaintiff was
speaking with Van Zyl he heard footsteps approach from his left side , from the
direction of Tinktinkie street towards Glasogie street. The plaintiff got off his
hunches and turned around to se e who was approaching.
[28] He saw the Fidelity security guard holding a long firearm. The guard spoke
English to Van Zyl and instructed him to lay on the ground. At this stage Fak u
pointed the firearm at the plaintiff , which was a huge shock for him. Fak u
instructed the plaintiff to lift his hands up but beca use he was in shock he was
unable to comply and reacted by gesturing to Faku to wait and to show him
that they were not gangsters . He wanted to show Faku the “pennetjie” . The
plaintiff demonstrated an action of taking something out of his right-hand side
with his left arm. He lowered his left arm and left his right arm in the air. As
he lowered his left arm, Fak u shot him. The plaintiff does no t know whether
Faku said anything else .
[29] The plaintiff was shot th rough his arm and his left side. He felt warm where
he was shot and fell backwards after he was shot. Afterwards the Fidelity
security vehicle stopped . The driver exited the vehicle and asked Fak u where
he shot the plaintiff.
[30] The plaintiff was tr ansported by ambulance to hosp ital.
[31] It was put to the plaintiff during cross -examination that earlier that day he lifted
his shirt and showed the Fidelity security officers a firearm under his shi rt.
The plaintiff denied that he had a firearm as alleged a nd testified that he does
not possess any firearms.
[32] The plaintiff closed his case after he testified.
[33] The defendant called Ashwin Jack (‘Jack’) to testify on its behalf. Jack
testified that he is employed as a security guard and that he has been
employed as a security guard since 2010 . During 2018 he was employed as
a security officer with Fidelity security in the Worcester area as an armed
escort . Fidelity security was contracted by British American Tobacco to escort
their vehicles and to ensure their s afety as there were plenty of attacks on
them in the form of robbery and high jacking. The British American Tobacco
vehicles would not only deliver good but would also pick up cash by the
vehicles.
[34] Jack was the driver of the security vehicle and was partn ered with Fak u who
had the des ignation of crew member. It was protocol to have two-armed
security personnel on the security vehicle at all times.
[35] Jack testified that on the day in question he observed a young man walk pass
their security vehicle . He sa w something in the shape of a firearm. He knew
that Avian Park was plagued by gan gsterism but they had developed an
understanding with the gangs in that they would not bother the gangs and the
gangs would not bother them.
[36] The young man they saw walked pa ss them and lifted his T shirt . Jack
testified that he saw a black firearm in the front of the young man’s pants, by
his stomach.
[37] Their Fidelity security vehicle together with the British American Tobacco
vehicle moved on to a second location where they s aw the same young man ,
whom he had seen earlier with a firearm , on the street corner . This time he
was with another person. This was suspicious to Jack and his partner .
[38] As a result of their suspicions, Faku and Jack decided to instruct the British
Amer ican Tobacco delivery vehicle to leave the area and not to get out of their
delivery vehicle. Furthermore, Faku proposed that he walk alongside the
Fidelity security vehicle which would proceed at a slow speed until they
passed the two men on the street c orner whereafter, Faku would climb back
into the Fidelity security van . It is common cause that the two men on the
corner were the plaintiff and Van Zyl . Jack proceeded to drive at a very slow
speed with Faku walking on the left back side of the vehicle o n the pavement.
When the y approached the stop street, Jack heard Fak u instruct the two men
to lay on the ground . Shortly thereafter he heard a shot discharged. Jack
stopped the Fidelity security vehicle, got out and walked arou nd the back the
vehicle to the left side thereof.
[39] Jack testified that he asked Fak u if he was shot . Faku responded by saying
that ‘this guy wanted to shoot us.’ He was referring to the plaintiff. Jack went
back to their vehicle and radioed head office to send the police and
ambula nce. While he was on the radi o a crowd of community members
gathered . This crowd was threatening and intimidating them and Faku and
Jack decided to get into their vehicle and drive away.
[40] Jack was permanently assigned to the security vehicle but Fak u move d
between different security vehicles. After the incident, Jack worked
approximately a further 5 times with Fak u, who was still employed with Fidelity
security but worked in other areas.
[41] Jack testified that he no longer has any contact with Fak u. When he was
informed that the date fo r hearing the case was approaching he asked around
but did not have any contact with Fak u. When Jack was asked if he knows
whether Fak u was still employed with Fidelity security, he replied that he does
not have that informat ion.
[42] During cross examination Jack testified that after the shooting incident the
matter was investigated internally which involved taking of statements from
both him self and Fak u. These were in addition to the statements taken by the
police. Jack does not know the outcome of the in vestigation. He gave his
statement to the internal investigators on the same day when the internal
investigators came to Worcester police station.
[43] When the shot went off, Fak u was at the back left side of the vehicle and Jac k
was in front in the driver’s seat. The shooting occurred behind him and he did
not see it happen.
[44] They did not consider Van Zyl a threat but they did consider the plaintiff a
threat as they saw him with a weapon earlier that day.
DISCUSSION
[45] It is trit e that an infringement of bodi ly integrity is prima facie unlawful and
once is established , the onus shifts to the defendant to establish a ground of
justification for the infringment .5 Thus, it is for the plaintiff to allege and prove
the bodily infringe ment and for the defendant to justify it.6
[46] It is clear from the evidence presented by both the plaintiff and the defendant
that the plaintiff was shot by Faku. It is clear from the cross examination of
the plaintiff’s witnesses as well as the evidence pre sented in the defendant’s
case that the defendant did not dispute that the plaintiff was shot by Faku.7 In
light hereof it is not clear why the defendant’s plea denied that Faku had shot
the plaintiff.
[47] As the plaintiff established the bodily infringement t he onus shifted to the
defendant to show that the shooting was justified and that it was not unlawful.
5 Moghamat v Centre Guards CC [2004] 1 All SA 221 (C); Mabaso v Felix 1981 (3) SA 865 (A)
6 Bennet v Minister of Police 1980 (3) SA 24 (C)
7 It was never put to Van Zyl nor to the plaintiff that he was not shot by Faku.
[48] The defendant did not call Faku to testify in support of its defence. The court
is told, via the evidence of Jack that Jack asked around but had no cont act
with Faku and that he did not know if Faku was still employed by the
defendant. The court is not told who, when or where Jack asked around.
[49] In Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd8 it was held that:
‘where a party fails to call as his witness as one who is available and able to
elucidate the facts, whether the i nferences that the party failed to call such a
witness because he feared that such evidence would expose facts
unfavourable to him should be drawn would depend on the facts pecu liar to
the case where the que stion arises.’
[50] In Just Names Properties II CC & Another v Fourie & Others 2007 (3) SA. 1
(W) the court held that:
‘In the present matter I am no persuaded that an inference against the
Defendant should not be drawn from the fa ct that they did not call Oosthuizen
as a witness. There were many issues that called out for her testimony. This
was not forthcoming. I was not informed as to what the reasons for her non -
appearance was. Strictly speaking, I am not entitled to an expla nation,
however, at the end of the day, I must draw certain reasonable inferences
from such a decision...’
[51] Similarly, in this case there were issues which called out for Faku to testify.
Afterall it appears common cause from the from the vive voce evidenc e that
Faku is the person who shot the plaintiff. It follows that he is the person to
explain why he did so and who could furnish an exculpatory explanation, if
any, therefore. The court was also not satisfactorily informed why Faku was
not called as a w itness. No evidence was prese nted in respect of what steps,
if any were taken by the defendant to call Faku as a witness. It may even be
that he remains employed with the defendant.
81979 (1 ) SA 621 (A)
[52] It is clear from Jack’s evidence that he did not witness Faku shooting the
plaintiff. Jack’s evidence that Faku told him that the plaintiff wanted to shoot
them is hearsay evidence. There was no application to have that hearsay
admitted in terms of section 3(1)(c) of the Law of Evidence Amendment Act.
Therefore, the court cannot have any regard thereto .
[53] In the absence of Faku testifying, the court is left with questions in respect of
his mindset when he shot the plaintiff and whether or not he intended to shoot
the plaintiff . The court does not know whether Faku shared Jac k’s suspicion
of the plaintiff whether he also saw a black firearm and whether he echoed his
sentiments concerning the gang activity in Avian Park at the time of the
incident.
[54] After evaluating Jack’s evidence together with the defendant’s failure to call
Faku as a witness and the failu re to explain why Faku was not called as a
witness it cannot be said that the defendant discharged its onus to show that
its infringement of the plaintiff’s bodily integrity by shooting him was justified.
[55] As indicated above, I am of the view that it was unnecessary to call Stemmet
as a witness at this stage. Therefore, I am not inclined to allow the costs
incurred in respect of her preparation for and attendance at court.
[56] Shortly before the commencement of the trial the plain tiff served a notice in
terms of Rule 35(3), requesting further and better discovery from the
defendant . The defendant was unable to comply with the request for further
and better discovery as a result of the late service thereof.
[57] In the circumstances, I make the following order:
(i) the defendant is held liable for the plaintiff’s damages, the quantum
whereof is yet to be established, arising from his shooting on 7
February 2018;
(ii) the costs of Stemmet in respect of her preparation for and attendance
at court w ill be for the plaintiff’s acc ount;
(iii) the costs incurred in respect of preparing and presenting Dr Plasket’s
report at trial which was received as exhibit shall be borne by the
defendant;
(iv) the costs incurred in respect of the late filing of the Rule 35(3) not ice
shall be borne by the plaintiff;
(v) save for the costs set out in paragraph (ii) and (iv) above, the costs
shall be borne by the defendant on Scale B.
_____________________
SLINGERS J