IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION, MTHATHA]

CASE NO. 1445/2019

In the matter between:

MAVA MATOMELA PLAINTIFF

and

MINISTER OF POLICE DEFENDANT


JUDGEMENT


MTSHABE AJ

A. INTRODUCTION

[1] Mava Matomela (the Plaintiff) instituted an action for delictual damages
against the Defendant, arising from unlawful and wrongfully assault, without
any cause by shooting the Plaintiff on 10 August 2018.

[2] On 19 February 2025, when the matter appeared before me, the parties made
an application for separation of merits from quantum. The applicati on was
made in terms of rule 33(4) of the Uniform Rules of Court.
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[3] I, accordingly, granted an order that the issue of merits shall be dealt with first
and be separated from quantum, which I postponed it sine die to be
determining in future.

[4] This judgement therefore deals with issue of liability on merits only.

[5] On 1st November 2023 the parties signed a Joint Practice Note. Paragraph 4
thereof, deals with the issues for determination and they are:

“5.1 It is recorded by the parties that both merits and quantum remain
outstanding for determination by the court.

5.1.1 On the merits, the court will be called upon determine;

5.1.2 Whether there was any negligent conduct by the police involving
Plaintiff as specified in the summons;

5.1.3 The cause of the complained, this action whether the Plaintiff
suffered as the result of the negligent conduct of the Defendant
and/or her employees.

5.2 On quantum the court will be called upon to determine;
5.2.1 General damages, what is a fair and equitable award in the
Plaintiff’s circumstances, taking into account the previous
awards, hospitalisation, duration, nature and sequelae of the
injuries sustained and expert medico legal reports filed;

5.2.2 Loss of income and whether the Plaintiff has suffered both
past and future loss of earnings, taking into account the basis for
the claim as constituted in the particulars and expert medico -
legal reports filled in this regard.

5.2.3 Future medical expenses and whether the Plaintiff qualifies to
be compensated taking into account the expert medico -legal
reports filed in this regard.

5.2.4 Cost of suit.”

B. PLEADINGS

[6] The Plaintiff pleaded the followi ng allegations in his Amended Particulars of
Claim:

6.1 “On or about 10 August 2018, on the route between Vela Private
School and Mthatha Dam, the Plaintiff was negligently shot at with live
ammunition by the members of South African Police Services on the
chest.

6.2 The Plaintiff was a passenger in the minibus taxi.

6.3 One of the South African Police Services Member who fired shots
recklessly, negligently and randomly was Mr Mhlalendlini, the police
station attached to the member is unknown and the moment and other
Police members who were on duty on that day attending t he scene are
unknown to the Plaintiff.

6.4 As consequence of the assault by South African Police member, the
Plaintiff sustained the following injuries:

6.4.1 Wound on the chest;

6.4.2 Pain and suffering.”

[7] The Defendant admitted that the Plaintiff was shot, however Defendant
averse that neither the members of the South African Police Services nor

Mhlalendlini shot the Plaintiff. The Defendant averse that the Plaintiff must
have been shot by the suspect.

[8] In paragraph 5 of the Defendant’s Amended Plea, the following appears:

“ Save to admit that on the alleged day and or near Pola Park , Mthatha,
there was car chase and a shootout between the Police driven in a Police
vehicle and a suspect driven in a white Polo vehicle and that the Plaintiff may
have been a passenger in taxi that was in the vicinity of the scene, the
Defendant denies that the Police and/or Mhlalendlini shot at the Plaintiff and
that Mhlalendlini was part of the Police crew that was involved in the case, the
Plaintiff is put to proof thereof. The Defendant averse that Plaintiff must have
been shot by the suspect.”

C. COMMON CAUSE FACTS

[9] In the pleadings and during the trial, the following facts appeared to be
common cause between the parties:

9.1 On 10th August 2018 the members of South African Police were
chasing a white Polo at the time being driven by an unknown person,
who has since passed on.

9.2 The Plaintiff was shot by a bullet as he was inside a taxi near or at
Polla Park, Mthatha.

9.3 Plaintiff because of the shooting by either the members of the Police
or a suspect sustained injuries as reflected J88 which was completed
by medical doctor.

9.4 On the day in question the members of the South African Police
Services were acting within the c ourse and scope of their employment
with the Defendant, and they were furthering the interests of the
Defendant.

D. DISPUTED FACTS

[10] The Defendant disputes the version of the Plaintiff that he was shot by the
members of Mthatha Police Services, in cluding Mhlalendlini. This denial
appears in the Defendant’s Plea.

[11] The Defendant further disputes that Mhlalendlini was part of the members of
South African Police Services who were chasing the suspect on the day in
question.

[12] Accordingly, the D efendant disputes and denies that he is liable for the
shooting of the Plaintiff on the day in question.

E. EVIDENCE OF THE PLAINTIFF

[13] The Plaintiff testified in person, and he did not call any other witness. I must
mention that during cross examinations Mr Bembe, Counsel for the
Defendant, informed the court that if the Plaintiff does not call the Doctor who
completed J88 he will call the doctor.1 Both the Plaintiff and Defendant did not
call the Doctor who completed J88.

[14] The Plaintiff testified that, on 10 August 2018, he was working on a company
called Max Hiltty Enterprises. This is the company that offered him learnership
program after he has done N2, N3, and N4 studies at TVET College Cicira.

[15] He informed the Court that afte r completing his learnership, he got employment
at Welkom as a security guard and that is where is currently working. He
joined the security company in 2019 after the bullet was taken out of his body.


1 Page 51, transcribed record date 19 February 2025, line 1-10

[16] On page 24 of the record dated 19 February 2024, under evidence in chief,
the Plaintiff testified that on Friday, the 10 th August 2018 he was from his
home to work, and he boarded a taxi at about 6H30.

[17] According to him, when the taxi was next to Joe Slovo on the road leading to
Vela, they saw, th at is the passengers in the taxi police. According to him the
police they saw where were standing with their feet and they were waiting for
Polo vehicle which was coming and running down the street.

[18] On page 25 of the record, the Plaintiff informed th e court that the taxi he
reported joined the road that is coming from Mthatha Dam towards the
Mthatha bypass. He informed the court that the Polo passed the taxi and went
to the direction the taxi was coming from. That Polo was chased according to
the Plaintiff by the Police were on foot and whilst they were on foot they fired
the shots as they were chasing the taxi. One of the bullets went through the
window and entered through the window. That bullet hit the Plaintiff on the
chest and then it went through his armpit, and it remained in the arm.

[19] In paragraph 29 of the transcribed record, when the Plaintiff was giving
evidence in chief the following:

“Ms Mantyi: So the Polo was already passed the taxi?
Mr Matomela: It already passed the taxi.
Ms Mantyi: When the bullet hit you?
Mr Matomela: Yes, when the bullet hit me, the Polo had already passed our
taxi M’Lord.
Ms Mantyi: What happened after that?
Mr Matomela: Then the bullet hit the window, and it went through that window,
and it hit me on the chest up to the stage where it went under my armpit and it
landed on my arm and remained there, M’Lord.
Ms Mantyi: Didn’t the taxi stop?
Mr Matomela: Then the taxi driver stopped his vehicle, M’Lord. Other
passengers alighted from the taxi. When I tried to alight from the taxi, I could
not. And the driver went around then assisted me M’Lord. And he took me to

the front seat, M’Lord, in this taxi. Then the two police officers came wanted to
investigate what has happened.
Mr Matomela: The driver then told them that the Police that I happened to be
shot, M’Lord and they suggested that they are going to phone the ambulance
M’Lord”.

[20] The Plaintiff testified that the ambulance could not arrived, his boss/employer Mr
Nyaba arrived at the scene. He took him to the hospital by his motor vehicle.

[21] Important, is what appears on page 33 of the record when the Plaintiff was
giving evidence in chief:

“Ms Mantyi: What happened to the Polo driver?
Mr Matomela: I had after I had already been shot that they shot him, M’Lord
that is the driver of the polo.
Ms Mantyi: The police denies that Mr Mhlalendlini was part of the crew that
was involved in the chase. And yet there is name of the police called
Mhlalendlini and the phone numbers.
Mr Matomela: That is correct, M’Lord. M r Nyaba took his particulars from
them, all their particulars and they gave him permission to take me to the
hospital, M’Lord.
Ms Mantyi: Did he take the particulars of one police or all of them?
Mr Matomela: He took only one name of the police, M’Lord not all of them.
Ms Mantyi: Is there anything that you can say Mava of what happened that
day?
Mr Matomela: No, that is all M’Lord.
Ms Mantyi: That is all M-Lord”.

[22] Under cross examination, the Plaintiff is insisted that the bullet that hit the
window and entered the chest and it protruded to the armpit until it went on
his arm was fired by the police not the suspect as he was shot after the Polo
has passed the taxi.

[23] He agreed with Mr Bembe that on the day in question the police were chasing
the suspect driving a motor vehicle, polo. Under cross examination the
Plaintiff informed the court that the person who was the driving the polo, was
not having firearm or rather was not caring a firearm, he was only driving2.

[24] On page 5 of the record dated 20 February 2025 the following appears form
line 15:

“Mr Bembe: They will also tell the court that much as the polo shooting at
them, they also returned fire.
Mr Matomela: The driver of the polo, in fact the one who was driving the polo
was driving this vehicle, his vehicle, he was not shooting. It was the police
who were behind him the ones that they were firing at this polo and the polo
turned to the direction where they were coming from.
Mr Bembe: You were already shot at that time?
Mr Matomela: No, not yet shot, M’Lord.
Mr Bembe: So what happened to the Golf, did you see the Polo? You say he
turned, and he drove away, what happened to it? Did you see?
Mr Matomela: It turned with a high speed and the Polo; and the police just
shot me and the bullet entered by my chest M’Lord. Then they just passed,
and they continue chasing it and I had been already shot at that stag e. And
they chase it, and I heard been shot at that stage, M’Lord”.

[25] On page 9 of the transcribe record dated 20 February 2025 the following
appears form line 20:

“Mr Bembe: Ok, thank you. So if you say they were all caring firearms what
would your papers say Mhlalendlini was actual person that you identified? I
know you did not draft those papers; I’m not blaming you.
Mr Matomela: It is because my boss actually requesting him, infact ask him to
give permission for me to be taken to the hospital.
Mr Bembe: Was that Mhlalednlini?

2 Transcribed record, dated 20 February 2025, page 3 thereof

Mr Matomela: Yes, he spoke to Hlalendlini, M’Lord
Mr Bembe: Before the incident did you know Hlalendlini?
Mr Matmela: No, M’Lord, I did not know him.
Mr Bembe: I’m not asking the question, Matomela, because the police are
going to say, all rather are going to say Hlalendlini was never part of that
operation before you were shot and after you were shot.
Mr Matomela: He was present. My boss tal ked, he talked to him and he gave
him his cellphone numbers and he was given and my boss cell phone
numbers. Thank you”.

[26] The Plaintiff under cross examination also informed the court that it is the
police who fired shot at him because the polo had al ready passed the spot
where he was and when he was shot, according to him by the police insisted
that Mr Mhlalendlini was part of the crew at the scene of the incident.

F. DEFENDANT’S EVIDENCE

[27] The Defendant called Warrant Officer Spengane. He is one of the persons who
were present on the day of the incident.

[28] The testified that on the day in question, when he and his colleagues were
going to work, near Embassy they met the Polo in question which was
travelling from Mthatha to the direction of Engcobo.

[29] The driver of their vehicle tried to stop the vehicle, by flickering lights but the
vehicle did not stop, hence their (police) motor vehicle made a U -turn and
chased the motor vehicle on the R61 towards Engcobo.

[30] According to Warrant Officer Spengane, the motor vehicle they were chasing,
instead of driving towards the Ngcobo, it took a turn, taking the road heading
from Mthatha Dam. They followed him and according to Spengane he was
firing at them, however the bullets from the driver o f the motor vehicle neither
struck any of the members of the South African Police Services, nor did they
strike their motor vehicle.

[31] Warrant officer Spengane denied that Mhlalelndlini was in the crew on the day
in question. His evidence as captured o n page 32 of the record dated 20
February 2025 is that Mr Mhlalendlini was in the office and was not part of the
crew. He informed the Court that he does not remember that there were
police who going on foot except those were in the motor vehicle.

[32] He did see a taxi that was station on the road near where the incident
occurred, however, their motor vehicle and himself did not go to the taxi to
investigate what was going on inside the taxi. He informed the court that the
suspect was shot by the police and unfortunately he passed on.

[33] On page 37 of the transcribe record dated 20 February 2025 the following
under evidence in chief appears:

“Mr Bembe: So during your presence were there any exhibits that were
collected in the area?
Mr Spengane: The firearm that person was using was recovered.
Mr Bembe: “Any empty cartridges?
Mr Spengane: I do not have any knowledge about cartridges.
Mr Bembe: Warrant, we have actually come to the end of our exami nation in
chief that I was conducted for the court, but now is there anything in this
regard that you would like the court to know which I did not address on you?
Mr Sipengane: That is all M’Lord.”

G. ANALYSIS OF THE EVIDENCE AND LEGAL PRINCIPLE

[34] I must mention that during the evidence in chief of Warrant Officer Spengane,
I did not hear him informing the Court that the police deny that they shot the
Plaintiff who was inside the taxi.

[35] The only issue, which in my view I could under the um brella of two mutually
destructive version, is that of the shooting by the driver of the Polo which was
being chase by the police. The Plaintiff’s version is that the driver of the polo

did not shoot at all as he was driving the motor vehicle at a fast spe ed, on the
other hand, the version of the Defendant is that the driver of the motor vehicle
was shooting at them, however, no bullets hit the motor vehicle of police.

[36] In this regard can only refer to case of National Employers General
Insurance Co Ltd v Jagers3 where the court stated the following:

“It seems to me with respect that in any civil case, as in any criminal case, the
onus can ordinarily only be discharged by adducing credible evidence to
support the case of the Party on whom the onus res ts. In a civil case the onus
is obviously not as heavy as it is in a criminal case, but never the less where
the onus rests in the Plaintiff as in the present case and where the two
mutually destructive stories, he can only succeed if he satisfies the cour t on a
preponderance of probabilities that his version is true and accurate and
therefore acceptable, that the version advanced by the Defendant is therefore
false or that other version is true and accurate and therefore acceptable, and
that the other ver sion advanced by the Defendant is therefore falls or
mistaken and falls to be a rejected. In deciding whether that evidence is true
or not the court will weigh up and test the Plaintiff’s allegations against the
general probabilities. The estimate of the c redibility of a witness will therefore
be in inextricably bound up with a consideration of the probabilities of the case
and, if the balance of probabilities favours the Plaintiff, then the court will
accept his version as being probable true. If however, the probabilities are
evenly balanced in the sense that they do not favour the Plaintiff’s case
anymore than they do the Defendant’s, the Plaintiff can only succeed if the
court nevertheless believes him and satisfied that his version is true and that
the Defendant’s version is false. This view seems to me to in general
accordance with the views expressed by Coetzee J in Koster Ko -Opervatiewe

accordance with the views expressed by Coetzee J in Koster Ko -Opervatiewe
Landboumaatskappy Bpk v Suid -Afrikaanse Sporwee en Haven 4 and African
Eagle Assurance Company Ltd v Cainer 5. I would merely stress however that
when in such circumstances one talks about a Plaintiff having discharge the

3 1984 (4) SA 437 (E) at 440D-441A
4 1974 (4) SA 420 (W) at 427
5 1980 (2) SA 234 (W)

onus which rested upon him on a balance of probabilities one can really
means that the Court is satisfied on a balance of probabilities that he was
telling the truth and that his version was therefore acceptable. It does not
seem to me to be desirable for a Court first to consider the question of the
credibility of the witnesses as the trial judg e did in the present case, and then,
having concluded that enquiry to consider the probabilities of the case, as
though the two aspects constitutes separate fields. In fact, as I have pointed
out, it is only where a consideration of the probabilities fails to indicate where
the truth probable lies, that recourse is heard to an estimate of relative
credibility apart from probabilities.”

[37] In assessing a witness’s credibility, a variety of factors must be taken into
account by the Court. This aspect was discussed in Heese v Nel 6 : “Included
in the factors which the court would look at in examining credibility or veracity
of any witness, are matters such as the general quality of his testimony (which
is often the relative condition to be compared with the quality of the evidence
of conflicting witnesses), he consistency with the content structure of his
evidence and the objective facts, his integrity and candour, his age where this
is relevant, his capacity and opportunities to be able to depose to the eve nts
he claim to have knowledge of, his personal interest in the outcome of the
litigation, his temperament and personality, his intellect, his objectivity, his
ability effectively to communicate what intends to say, and the weight to be
attached to the rel evance of his versions, against background of the
pleading.”

[38] The principles in Jagers case (supra) 7 were also applied in case of City of
Johannesburg Metropolitan Council v Ngobeni8 .

[39] In the Stellenbosch Farmers Winery Group Ltd and another v Martel and
Others9 the Court stated the following:


6 1994 1PHF 11 (T) 32
7 Jagers Supra

Others9 the Court stated the following:


6 1994 1PHF 11 (T) 32
7 Jagers Supra
8 (2012) JOL 29134 (SCA) at para 51
9 2003 (1) SA 11 (SCA) para 5

“On the central issue as to what the parties actually decided, there are two
irreconcilable versions. So, too on a number of preferable arears of dis pute
which may have a bearing on the probabilities. The technique generally
employed by the Courts in resolving the factual disputes of this nature may
conveniently be summarized as follows. To conclude on the disputed issues a
court must make finding on ( a) on 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 tur n will depend on a variety of
subsidiary factors, not necessarily in order of importance, such as (i) the
witness’s candour and demeanour in the witness box, (ii) his bias, talent and
blatant (iii) internal contradictions in his evidence, (iv) external con tradictions
with what was pleaded or put on his behalf, or with established facts or with
his own extra curial statements or actions, (v) the probability or improbability
of particular aspects of his versions; (vi) the calibre and cogency of his
performance compared to that of other witnesses testifying about the same
incident or events. As to (b), a witness’s reliability will depend, apart from the
factors that have been mentioned under (a) (ii), (iv) and (v) above. On (i) the
opportunities he had to expe rience or observe the event in question and (ii)
the quality, integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or improbability of
each party’s version on each of disputed issues. In the light of its assessment
of (a), (b), and (c) the Court will then the final step determine whether the
party burden with the onus of proof has succeeded in discharging it. In the
hard case which will in darkness be the rare one, occurs when a Court’s

hard case which will in darkness be the rare one, occurs when a Court’s
credibility findings compel it in one direction and its evaluation of general
probabilities in another. The more convincing the former, the less convincing
will be the latter. But when all factors done equipoised probabilities prevail.

[40] The merits, demerits and the probabilities of the evidence of each of the
witnesses, Plaintiff and the Defendant should be examined in the light of the
totality of it, if that is done, it comes clear that the evidence of the Defendant,
in my view is not credible, is unreliable and highly improbable. It is my view
that the evidence of the Plaintiff on probabilities is true and correct. I accept it.

[41] Further, having regard to the totality of the evidence which served before this
court, it is clear that the witness of the Defendant in so far as the issue of the
shooting by the driver of the Polo is not honest, credible and reliable. It is
rejected.

[42] Further, during this trial the Defendant informed the court that is going to call
the Doctor who completed the J 88. That was not done. No explanation was
offered by Counsel for the Defendant. Furthermore, and most important is the
fact that the Defendant did not call police officer Mhlalendlini, who is alleged
to have been present in the scene. It must also be mentioned that inspector or
police officer Mhlalendlini is still alive. This came from the evidence of warrant
officer Spengane. The Counsel for the Defendant did not give any reasons
why he is not going to call Mhlalendlini. If it is correct that Mhlalendlini was not
at the scene the important question is how the boss of the Plaintiff could have
known about Mhlalendlini and his details, if he was not there.

H. ONUS OF PROOF

[43] It is trite law that the onus to prove the elements of a claim for delictual
damages in this case falls upon the Plaintiff. Further, it is trite law that the
standard of in civil cases is on the preponderance of probabilities.

[44] Dealing with the issue of onus the then Appellant Division aptly enunciated
the principle as follows:

“….. The only correct use of the word ONUS is that which I believe its true
and original sense it means…. the duty, which is cast on a particular litigant,
in order to be successful, of finally satisfying the Court, that he is entitled to
succeed on his claim, or defence as the case maybe, and not in the sense
merely of his duty to adduce evidence to combat the prima facie case made
by his opponent10.

10Pillay vs Krishna 1947 AD 946 at 952

I. FAILURE TO CALL WITNESSES

[45] According to the evidence of the Plaintiff and from the records, it appears that
one of the police officers who was present at the scene was Mhlalendlini.
Although this is disputed by Warrant Officer Spengane.

[46] Furthermore the boss of the Plaintiff, who took him to the hospital wrote a
note that he spoke to Mhlalendli ni and took his details. During the trial
Counsel for the Defendant informed the court that he is not going to call
Mhlalendlini. He offered no explanation as to why Mhlalendlini, who is alive or
from whom there is no explanation why he was not going to be called by the
Defendant. This gentlemen in my view should have been called to dispute his
presence at the scene.

[47] It is settled law that a party’s failure to call available witnesses in exceptional
circumstances may lead to an adverse inference being drawn from such
failure against the party concerned. In the circumstances the Defendant’s
failure to call police offic er Mhlalendlini as a witness to testify on such
important issues justifies the drawing of an inference that the Defendant knew
that police officer MHlalendlini was present at the scene 11. The question
whether an adverse inference is to be drawn from failur e tom call a witness is
a question of fact. In this matter I conclude that an adverse inference is
justified.

J. TEST FOR NEGLEGENCE

[48] It needs to be pointed out at the outset that for success of the Plaintiff in this
matter the Plaintiff needs to e stablish that the Defendant acted negligently
towards him. The test for negligence was addressed in Kruger v Coetzee 12,

11 Sishongana v Minister of Justice & Constitutional Development & Another 2007 (4) SA 135 (LC) at
para 112, Elgi n Fireclays Limited v Webb 1947 (4) SA 744 (A) @749 to 750, Munster Estates (Pty)
Ltd v Killarney Hills (Pty) 1979 (1) SA 621 (A), Olifant v Shield Insurance Co 1980 (1) SA 903 (C) and
Hal obo MML v MEC for Health, Free State 2022 (3) SA 571 (SCA)

Hal obo MML v MEC for Health, Free State 2022 (3) SA 571 (SCA)
12 1966 (2) SA 428 (A) at 430E-F

where the proper approach for establishing the existence or otherwise of
negligence was formulated by Holmes JA as he then was as follows:

“For the purposes of liability culpa arises if-

(a) A diligent paterfamilias in the position of the Defendant-

(i) Would foresee the reasonable possibili ty of his conduct injuring another
in his person or property and causing him patrimonial loss-

(ii) Would take reasonable steps to guard against such occurrence and-

(b) The Defendant failed to take such steps.

[49] In the case Tshabalala v Metro Rail13 court held that:

“It is now well -established that a negligent omission, unless wrongful will not
give rise to delictual liability. The failure to take a reasonable step to prevent
foreseeable harm to another will result in liability only if the failure is wrong. It
is the reasonableness or otherwise imposing liability for such a negligent
failure that will determine whether it is to be regarded as wrongful. See
Trustees, Two Oceans Aquarium Trust v Kantey and Tempo (Pty) Ltd 2006
(3) SA 138 (SCA) at para 11. If it is reasonable to do so, the defendant will be
said to have owed the injured party a legal duty to act without negligence that
is to say to take such steps as may have been reasonable to advert the
harm”.

[50] In the context of delictual damages, the test for determining wrongfulness or
otherwise of an omission to act is re -stated in Van Eeden v Minister of Safety
and Security14 as follows:


13 2008 (3) SA 142 (SCA) at para 7
14 2004 (3) SA 305 (SCA)

“Our common law employs the element of wrongfulness (in addition to the
requirements of fault, causation and harm to determine liability for delictual
damages caused by an omission). The appropriate test for determining
wrongfulness has been settled in lon g line of decisions of this court. An
omission is wrongful if the Defendant is under legal duty to act positively to
prevent the harm suffered at the Plaintiff. The test is one of reasonableness. A
Defendant is under a legal duty to act positively to prevent harm to the Plaintiff
if it is reasonable to expect the Defendant to have taken positive measurers to
prevent the harm. The court determines whether it is reasonable to have
expected the Defendant to have done so by making a value judgement based,
inter alia on, upon its perception of legal convictions of the community and in
considerations of policy. The question whether a legal duty exists in particular
case is thus a conclusion of law depending on consideration of all the
circumstances of the case and on the interplay of the many factors which
have to be considered. “

[51] Having regard to the circumstances which the events are unfolded on that
particular day at near Vela School, it appears that the police officers fired the
shots at the taxi and hi t the Plaintiff negligently. Furthermore, I could not find
from the record anywhere were captain Spengana denied in his evidence in
chief that the police did not hit the taxi with bullet.

[52] Accordingly, on a balance of probabilities I find that versio n of the Plaintiff is
true and must be accepted. I am satisfied that the evidence of the Plaintiff is
true and that of the Defendant is false. As I have indicated above, civil cases
are decided on probabilities.

[53] Applying the test formulated in the c ase of Kruger v Coetzee (supra) to the
facts, I find that the police officers saw the reasonable possibility of their
conduct causing injury and patrimonial loss to the Plaintiff and failed to take

conduct causing injury and patrimonial loss to the Plaintiff and failed to take
reasonable steps to prevent the harm to the Plaintiff. Fur ther, I am of the view
that the police officers could have guarded against the injury suffered by the
Plaintiff, and they failed. The actions of the police caused the injury to the
Plaintiff.

[54] It follows that the Defendant should held liable to the P laintiff for such
damages as he in due course may prove or agreed by the parties.

[55] In conclusion, I want to thank Counsel for their thorough research and
submissions that I have found to be great assistance in this matter. May I
apologize for the del ay in delivering this judgement, as such was cause inter
alia, by the fact that I received transcribed record in August 2025

[56] Accordingly, the following order is made

1. The Defendant is held liable to the Plaintiff for his agreed or proven damages
consequent upon his shooting by the members of the Defendant on 10
August 2018.

2. The Defendant is liable to pay the Plaintiff’s costs in terms of Rule 67A read
with Rule 69(7) of the Uniform Rules of Court, on Scale C.


__________________________
N.R MTSHABE
ACTING JUDGE OF THE HIGH COURT


APPEARANCES:

For the Plaintiff: Adv P. Mantyi-Mfino
Instructed by: SZ Jojo Incorporated
MTHATHA

For the Defendant: Adv. J. Bembe
Instructed by: The State Attorney
MTHATHA

Heard on: 31 March 2025
Delivered on: 26 August 2025