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1994
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[1994] ZASCA 139
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Minister of Law and Order v Monti (595/92) [1994] ZASCA 139; 1995 (1) SA 35 (AD); [1995] 1 All SA 464 (A) (29 September 1994)
Case No 595/92
/mc
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between
THE MINISTER OF LAW AND ORDER Appellant
and
JACK NONTINGANA MONTI Respondent
CORAM: JOUBERT, VAN HEERDEN, E M GROSSKOPF,
VIVIER et VAN DEN HEEVER JJA.
HEARD: 25 AUGUST 1994
DELIVERED: 29 SEPTEMBER 1994
JUDGMENT
VIVIER JA/
2
VIVIER JA:
The respondent ("the plaintiff") instituted a delictual action for damages
against the appellant ("the defendant") in the Eastern
Cape Division for alleged
wrongful assault, arrest and detention by a member or members of the South
African Police, acting within
the course and scope of his or their employment
with the defendant. The claim in respect of the wrongful arrest and detention
was
withdrawn before the close of pleadings and nothing further need be said
about it. In support of the claim for wrongful assault the
plaintiff alleged in
the pleadings that at approximately 10 o'clock on the morning of 10 November
1984, and "in and in the vicinity"
of a beer hall in Wood Street, Grahamstown,
one or more policeman had taken hold of his clothing and forced him into the
partially
burnt down beer hall after which he was shot in the back by a
policeman firing a shotgun. He
3
was thereafter slapped in the face by another policeman who also poured the
contents of a wine bottle over his face.
In his plea the defendant admitted
that the plaintiff was shot by a policeman acting within the course or scope of
his employment
as such. It was further stated that the shooting took place at
approximately 11 o'clock on the morning in question "in the vicinity"
of the
said beer hall. The defendant went on to plead that the shooting was justified
in the particular circumstances of the case
viz, that the plaintiff was among a
group of approximately 20 persons who broke into and stole goods from the beer
hall and threw
stones at policemen guarding the hall who feared for their lives.
The policeman shooting the plaintiff did so in order to maintain
law and order,
protect life and property and to identify and arrest the culprits who had
committed the said offences. The other allegations
of
4
assault were denied.
Before the trial commenced before Van Rensburg J it
was ordered in terms of Rule 33(4) that the merits be decided separately from
the quantum of damages, and the trial thereafter proceeded on the merits of the
plaintiff's claim. In his judgment on this issue
Van Rensburg J, relying on the
decision of this Court in Mabaso v Felix
1981 (3) SA 865
(A) at 874A-B, held
that on the form of the pleadings the onus rested on the defendant to prove that
the shooting was justified.
The learned Judge further held that no reliance
could be placed on either party's version of the events in question. He
accordingly
granted an order declaring that the plaintiff had been unlawfully
assaulted on 10 November 1984 by being shot in the back and that
he was entitled
to recover from the defendant such damages as he was able to prove. The learned
Judge also held that the
5
plaintiff had failed to prove the further allegations of assault and that his
claim in respect thereof should be dismissed. Costs
were reserved for decision
at the conclusion of the trial. Van Rensburg J subsequently granted leave to the
defendant to appeal to
this Court solely on the question of whether he was
correct in holding that on the form of the pleadings the onus rested on the
defendant
to justify the shooting.
Mr Eksteen, who appeared for the defendant at the hearing of the appeal, did
not challenge the correctness of the decision in Mabaso
v Felix. It was there
held that in an action for damages in respect of a delict affecting a plaintiffs
personality and bodily integrity,
such as assault, the defendant ordinarily
bears the onus of proving the excuse or justification which he raises, such as
self-defence.
(See also Ramsay v Minister van Polisie en Andere
6
1981 (4) SA 802
(A) at 807E-F and Ferreira v Ntshingila
1990 (4) SA 271
(A)
at 273A-B.) The form of the pleadings, however, may sometimes be such that the
onus is placed on the plaintiff to negative the
excuse or justification.
Mr Eksteen submitted that in the present case the defendant in his plea not
only denied the unlawfulness of the shooting but also
the factual allegations on
which the plaintiff relied for his cause of action. He submitted that the
present was therefore not a
true case of confession and avoidance so that the
overall onus remained on the plaintiff to prove the facts upon which he relied.
(Cf Mabaso's case at 875F-H). 1 do not agree with counsel's submission. The
allegation that the shooting took place at 11 instead
of 10 o'clock on the
morning in question and that it happened in the vicinity of the beer hall as
opposed to inside the beer hall,
does not traverse the plaintiffs
7
cause of action. This was that on the morning in question the defendant's
servant had shot him in the back and had done so intentionally.
That was not
denied in the plea. There is no basis for the contention that the plea related
to a shooting incident completely different
from that pleaded by the plaintiff.
Had that been the case, both the admission of the shooting and the justification
pleaded would
have been irrelevant. In my view the defendant clearly admitted
this assault and pleaded the special defence of justification, namely
that the
policeman's fear and the necessity to maintain law and order and arrest the
wrongdoers caused him to shoot. This is a true
case of confession and avoidance,
in which the onus of proving the avoidance ordinarily rests on the defendant.
The Court a quo therefore
correctly held that the onus of proving that the
shooting was justified rested on the defendant.
8
The appeal is dismissed with costs.
W. VIVIER JA.
JOUBERT JA)
VAN HEERDEN JA)
E M
GROSSKOPF JA)
VAN DEN HEEVER JA) Concur.