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  • Mkhabela v Minister of Police (1744/23) [2026] ZAMPMBHC …

Mkhabela v Minister of Police (1744/23) [2026] ZAMPMBHC 3 (19 January 2026)

60 Reportability
Delict
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Brief Summary

Tort — Police liability — Plaintiff claims damages for injuries sustained from police gunfire during an operation. The court must determine if the shooting was justified and whether the plaintiff was aware he was being approached by police.

Comprehensive Summary

Summary of Judgment


Introduction


This was a civil action for delictual damages instituted in the High Court of South Africa, Mpumalanga Division (Mbombela, Main Seat). The plaintiff, Senzo Gerald Mkhabela, sued the defendant, the Minister of Police, claiming damages in the amount of R3 200 000.00 arising from an incident in which members of the South African Police Service (SAPS) fired shots at him and his motor vehicle.


The matter proceeded to trial after the defendant delivered a plea denying liability and asserting that the SAPS members acted lawfully in self-defence and/or in the course of arresting suspects linked to a planned robbery/ATM bombing. Before the trial commenced, the court granted an application under Uniform Rule 33(4) separating the issues of merits and quantum. The judgment accordingly addressed liability only.


The general subject matter concerned the lawfulness and justification of police use of force involving firearms during an operation aimed at preventing a serious planned crime, and whether the plaintiff had discharged the civil onus to show that the shooting was wrongful and unlawful, thereby rendering the Minister vicariously liable for the conduct of SAPS members acting within the course and scope of their employment.


Material Facts


The claim arose from events on 3 January 2023 at or near a guesthouse in Matsulu Trust (District of Ehlanzeni, Mpumalanga). SAPS members were conducting an operation based on information regarding a planned robbery and/or ATM bombing in the area. The plaintiff arrived at the guesthouse in a yellow Renault Triber (registration number partially redacted as K[...]) accompanied by his friend and his girlfriend.


Certain facts were treated as common cause. It was not disputed that the SAPS members involved were acting within the course and scope of their employment with the defendant at the relevant time. It was also not disputed that the plaintiff’s motor vehicle was shot by SAPS members on the day in question.


The material disputes concerned what occurred at the guesthouse immediately before the shots were fired and whether the SAPS response was justified. The plaintiff’s version, as advanced at trial, was that while his vehicle was stationary at the guesthouse gate, a person wearing a balaclava and dark clothing approached with a rifle and knocked on the window. The plaintiff testified that he panicked, believed a hijacking was underway, and drove off, whereafter shots were fired at the vehicle; he denied firing any shot at SAPS. His girlfriend broadly supported that the vehicle drove off and was shot at, and added that she could not clearly see the individuals because the windows were tinted and because the vehicles present had no blue lights and the individuals were in “normal clothing”.


The defendant’s version was that the plaintiff’s vehicle matched information received about suspicious vehicles connected to the planned crime and had been observed driving repeatedly in the area. According to SAPS witnesses, officers approached the Renault Triber while wearing full police uniform and bulletproof vests marked “POLICE”. The defendant alleged that, as the officers approached and identified themselves, a shot was fired from the driver’s side of the plaintiff’s vehicle. The plaintiff then sped off. SAPS members fired at the vehicle, aiming to immobilise it (including shooting at the tyres), and the vehicle was later found abandoned about 500 metres away with flat tyres.


The IPID investigator testified that his investigation recorded the occupants’ version that SAPS approached wearing balaclavas, causing them to flee, and he stated that no spent cartridges were found at the scene and no dangerous weapons were found in the plaintiff’s possession. He recommended charges, but the National Prosecuting Authority declined to prosecute. The court treated this evidence as part of the factual matrix but did not accept that the absence of recovered cartridges proved that the plaintiff had not fired a shot, particularly because cartridges from SAPS firearms were likewise not recovered despite it being common cause that SAPS did shoot.


Legal Issues


The central legal questions were whether the plaintiff proved, on a balance of probabilities, that the shooting by SAPS members was unlawful and wrongful and therefore delictually actionable, and whether the defendant established a lawful justification for the shooting as pleaded (including retaliation after being fired upon and the use of force to immobilise a fleeing vehicle suspected to be connected to a serious planned crime).


The dispute was predominantly one of fact, requiring the court to resolve mutually destructive versions concerning (a) whether the plaintiff was aware he was being approached by police, (b) whether the plaintiff fired first, and (c) whether the SAPS members’ use of force was justified in the circumstances. These factual findings in turn determined the application of legal principles relating to onus, credibility assessment, and justification for conduct that would otherwise be wrongful.


A further issue of legal relevance concerned the plaintiff’s ability to advance at trial a version that differed materially from the case pleaded, implicating the principle that a party must plead the material facts on which it relies and is generally bound by its pleadings.


Court’s Reasoning


The court approached the matter on the basis that it was faced with two mutually destructive versions. It applied the established technique for resolving such disputes, focusing on credibility, reliability, and the probabilities, as articulated in the authorities it cited. The court emphasised that the plaintiff bore the onus to prove wrongful and unlawful conduct on the part of SAPS on a balance of probabilities, while the defendant bore the burden of justifying the shooting if the conduct was otherwise prima facie wrongful.


In evaluating the plaintiff’s case, the court placed significant weight on what it considered to be material contradictions between the plaintiff’s pleaded version and the version advanced in oral evidence. The particulars of claim alleged that SAPS fired several shots at the plaintiff while he was seated in his parked vehicle. At trial, however, the plaintiff testified that he drove off and that shots were fired as he was driving away. The court regarded this divergence as material and noted that it was not clarified. It further observed that the plaintiff’s girlfriend’s testimony aligned with the trial version (shots fired while driving away) rather than the pleaded version, which the court treated as compounding the difficulty with the plaintiff’s case.


Relying on authority concerning pleadings, the court reasoned that it was impermissible to plead one case and attempt to establish another at trial. The court considered the plaintiff to be bound by his pleadings and treated the inconsistency as undermining the reliability of the plaintiff’s narrative. The court also identified an additional inconsistency between the plaintiff and his girlfriend regarding why the plaintiff drove off—whether because he panicked at an apparent hijacking or because he was instructed to drive off due to being followed—again treating this as bearing on reliability.


By contrast, the court found the defendant’s witnesses (particularly the SAPS members involved in the shooting) to be mutually corroborative regarding the immediate events surrounding the shooting. The court accepted their evidence that the officers were in full police uniform, that they identified themselves, that a shot was fired from the plaintiff’s vehicle first, and that the officers responded by firing at the vehicle to immobilise it after it fled. While acknowledging minor imperfections in the broader background about how the vehicle became identified as suspicious, the court considered the defendant’s version credible on the core issue of the shooting.


The court also evaluated the IPID investigator’s evidence about the absence of recovered cartridges and concluded that this did not establish that the plaintiff did not fire a shot, particularly because the investigation also did not recover cartridges from SAPS firearms despite it being undisputed that SAPS fired shots. The court questioned, in that context, whether the investigation had been thorough, but treated that as not determinative of the core factual question in the civil trial.


Finally, the court relied on the pattern of damage to the plaintiff’s vehicle, including evidence that the tyres and petrol tank were shot, as consistent with the defendant’s version that the shots were aimed at immobilising the vehicle rather than targeting the occupants. This factor was treated as supporting the probabilities in favour of the SAPS version. In light of the credibility and probability findings, the court held that the plaintiff had not discharged the onus of proving wrongful and unlawful conduct, and that the defendant had successfully justified the shooting.


Outcome and Relief


The court dismissed the plaintiff’s claim on the merits, finding that the plaintiff failed to prove wrongful or unlawful conduct by SAPS and that the defendant’s justification for the shooting was accepted on the probabilities.


The court ordered that costs follow the result. The plaintiff was directed to pay the defendant’s costs of the action on the party-and-party scale.


Cases Cited


National Employer’s General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E).


Stellenbosch Farmers’ Winery Group Pty Ltd and Another v Martell Et CIE and Others 2003 (1) SA 11 (SCA).


Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA).


Legislation Cited


No legislation was expressly cited in the judgment.


Rules of Court Cited


Uniform Rules of Court, Rule 33(4).


Held


The court held that, on the evidence, the plaintiff’s version was materially contradictory and improbable, particularly when measured against the pleaded case and the corroborated evidence of the SAPS witnesses. The court accepted that SAPS members approached the plaintiff’s vehicle while identifiable as police, that a shot was fired from the plaintiff’s vehicle first, and that SAPS fired at the vehicle to immobilise it in response to a perceived threat and a suspect vehicle fleeing.


On that basis, the court held that the plaintiff failed to prove that the shooting was wrongful or unlawful, and that the defendant had successfully justified the use of force. The Minister of Police was therefore not liable for the plaintiff’s alleged injuries and vehicle damage arising from the shooting incident.


LEGAL PRINCIPLES


The judgment applied the principle that, in civil proceedings, the standard of proof is the balance of probabilities, and the party bearing the onus must present evidence that is sufficiently credible and probable to discharge that onus.


Where there are mutually destructive versions, the court must assess credibility, reliability, and probabilities in an integrated manner. The party with the onus can succeed only if the court is satisfied that its version is probably true and that the opposing version is probably false or mistaken; if probabilities are evenly balanced, the party with the onus must nonetheless persuade the court of the truth of its evidence.


The judgment further applied the pleading principle that a litigant must set out the material facts relied upon in the pleadings and may not plead one case and seek to prove a different case at trial. A party is generally bound by its pleadings, and material divergence between pleaded and proven versions may undermine the party’s case and credibility.


In the context of delictual claims arising from police conduct, the judgment proceeded on the basis that the plaintiff must prove wrongful and unlawful conduct causing damage, while the defendant may avoid liability by establishing a lawful justification for conduct such as the use of force in response to an immediate threat and to immobilise a fleeing suspect vehicle, on the facts accepted by the court.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA, MAIN SEAT)

Case No: 1744/23
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
Date 19/01/2026
Signature

In the matter between:

SENZO GERALD MKHABELA PLAINTIFF

And

MINISTER OF POLICE DEFENDANT

JUDGMENT

NYAMBI AJ
INTRODUCTION
[1] The Plaintiff instituted this action against the defendant for damages in the
amount of R3 200 000.00, representing general damages, past and future medical

expenses and cost of repairs to his motor vehicle, emanating from an incident
wherein members of the defendant fired shots at him.

[2] Before the commencement of the trial, an application in terms of Rule 33(4), for
separation of issues was brought, and after consideration thereof, court granted the
application, thereby separating the issues of merit s and quantum . This judgment,
therefore, is in respect of the merits of the case.

BACKGROUND
[3] The claim arises from an incident that occurred on the 3 rd of J anuary 2023,
wherein members of the South African Police Services, who were conducting an
operation, where there were allegations of a planned robbery or bombing of ATM ,
fired shots at the Plaintiff’s motor vehicle.

PLAINTIFF’S CASE
[4] In the version of the Plaintiff, in his particulars of claim, he stated that
“On or about the 3 rd day of January 2023 and at or near Matsulu Trust, District of
Ehlanzeni, Mpumalanga Province, the Plaintiff was shot by members of the South
African Police Services whose full particulars are unknown to him.
The members of the police aforesaid actually fired several gunshots towards the
Plaintiff who was seated inside his parked motor vehicle resulting in the Plaintiff
sustaining gunshot wounds and the said gunshots also caused damage to his motor
vehicle, a Renault Triber with Registration numbers and letters K[...]”.

[5] In support of the Plaintiff’s case, evidence of three witnesses was led under oath.
The 1st witness, Abel Khoza, testified that he is employed by the IPID as an Assistant
Director, and that he was tasked with investigating the case and thereafter compiled
an investigative statement.

[6] He told the court, that as per his statement, the information he received had
revealed that members of the police had an operation, following on information
regarding ATM bombing that was supposed to take place at Matsulu Complex and
that the suspects had booked at a Guesthouse next to the complex, and that whilst

that the suspects had booked at a Guesthouse next to the complex, and that whilst
patrolling, a yellow Renault Triber , stopped at the gate of the Guesthouse, with 3

occupants. Further that according to the occupants, whilst the car engine was still
running, two members of the SAPS approached and knocked on the window,
demanding that they open the window, and since the police were wearing
balaclavas, the victim got frightened and drove off, alleging that he was under the
impression that he was being hijacked and that is when shots were fired towards the
direction of motor vehicle, which stopped about 500 meters, from the scene and all
the passengers fled on foot.

[7] He further told the court that according to his investigations, no exhibits of spent
cartridges were found at the crime scene and that no dangerous weapons we found
in the victim’s possession. He thus recommended to the NPA that the members of
the police be charged, he however confirmed that the NPA declined to prosecute.

[8] The Plaintiff, Senzo Mkhabela, testified that on the day in question he had booked
accommodation at a Guesthouse. Upon arrival at the Guesthouse with his friend and
girlfriend and whilst waiting for the gate to be opened, he heard a knock on his
window and he saw a person wearing a balaclava and dressed in dark clothing, with
a rifle, his friend then said they wanted to hijack them, so he panicked and drove off.

[9] It was his testimony that as he drove off, he heard gunshots being fired at the car
he was driving, and thereafter window glasses were shattered and the car could not
drive properly as he noticed that one of the tyres was flat, so he told the passengers
that he would stop and that they must flee on foot and when he did finally stop the
car, he took the keys from the ignition and they all fled in different directions.
10] The Plaintiff told court that he ran to a friend’s house where he asked to use a
phone and he phoned Tracker telling them that his car had been shot at and that he
also called his friends to ask where they were and his friends told him that they were

also called his friends to ask where they were and his friends told him that they were
at the scene, so they collected him after telling him that there was no hijacking,
informing him that it was police that had approached them.

[11] It was his testimony that his friends and girlfriend took him to the clinic in an
Avanza motor vehicle and thereafter taken to Rob Ferreira Hospital by ambulance
and that after his discharge from hospital in the morning, he went to the police
station as he wanted to open a case, he was however informed by the police that he

was also sought by the police who were involved in the incident and that after his
interview with the said police, he was merely told that he was at the wrong place at
the wrong time. He then opened a case and afterwards reported the matter to IPID
and also involved lawyers.

[12] He told court that after several requests, his car was released from police
custody, and since his insurance refused to pay his claim, he personally paid the
panel beater who fixed his car from his own savings. The Plaintiff denied that he fired
the first shot at the police and that had there been an indication that the person
knocking on his window was a police, he would not have driven off.

[13] Felicia Ayanda Maphosa, testified that she is the Plaintiff’s girlfriend and that she
was present on the day of the incident. She told court that they went to a guesthouse
and whist there, a certain guy knocked on the window and the Plaintiff’s friend told
the Plaintiff to drive off because the car had been following them, and so the Plaintiff
drove off and that is when their car was shot at. After a while they stopped and they
all got off the car and ran to hide close by.

[14] The witness further told court that their car windows were tinted and dimmed
and that she could not see how the guy who was knocking looked like, and that
everything was just black, and that there was a white bakkie and Audi without any
blue lights, as such they could not tell that they were police as they were also in their
normal clothing.

[15] The witness confirmed that she made a statement to the police after the incident
and she read the statement into record, confirming that she wrote it herself in English
and that she signed the statement confirmed that the statement captured correctly
what transpired on the day in question. She then told court that the car was shot at
the wheels and the petrol tank and car could then no longer move.

DEFENDANT’S CASE

DEFENDANT’S CASE
[16] In their plea, the defendant denied liability and stated that
“Members of the defendant were posted around the vicinity of Matsulu plaza to patrol
in order to prevent the planned business robbery.

While the police were on their way they spotted the Plaintiff’s vehicle, a yellow sedan
with registration number K[...].
The Yellow Sedan was seen patrolling the street, as soon as the police arrived
behind Matsulu Spar shop, the yellow vehicle passed them again.
The police approached the Plaintiff’s vehicle, and as soon as the Plaintiff saw that it
was police, he started firing shots at them. The gunshots came from the driver’s side
of the motor vehicle.
The members of the defendant retaliated by shooting back into the vehicle in order to
safeguard their safety and to immobilize the car in order to apprehend the suspects”.

[17] Evidence of three witnesses was led, under oath, in support of the defendant’s
defence. Joel Mafere Mashilo testified that on the day in question, under the NIU
responsible for cash heists, business robbery and organised crime, assisted in an
operation, acting upon information of a planned robbery by an armed group, of
SASSA monies which were already loaded into ATM.

[18] He testified that a yellow motor vehicle with registration number K[...] was
reported as one of the vehicles parked around the mall and also said to have been
seen earlier driving around the area. Further that as he then entered Matsulu and
went to park behind Spar and the said yellow motor vehicle came again and as he
alighted to approach the car in order to enquire what their interest was as it was
midnight, the car drove off. After, a while, he heard gunshots and they drove towards
the direction where the yellow motor vehicle went and he found that his members
had intercepted a grey Avanza that was spotted earlier, and upon asking where the
gunshots came from, he was showed the direction thereof.

[19] He testified further that he then went there and was told that two people alighted
from the Avanza and went into the Lodge shouting “Police”, however he found the
gate locked and was only opened at around 05:00 am by the receptionist who said

gate locked and was only opened at around 05:00 am by the receptionist who said
she was informed by a neighbour that there were police outside. Upon inspection of
the property, they found the fence was cut and further upon breaking into the rooms
which were booked, they found equipment used to break into ATMs and there were
also cars in the yard which the receptionist said were brought in by the people who
booked the rooms and had fled.

[20] He told court that he then went to the scene of the shot motor vehicle and found
that it was being processed by others, as the shot car had been abandoned. The
witness however commented that as they are an a special operations unit, they can
use force when they arrest and only when arrest is being resisted or when suspects
shoot at them first.

[21] Warrant Officer Mwandleni Kenneth Twala testified that on the day in question
they spotted the Plaintiff’s car which fitted the description of one of the cars they
briefed about, and as they approached the car which had stopped at a guesthouse,
another person came out of the guesthouse and shouted “police” and ran back into
the yard. As he was few steps away from the car’s door handle, and in full police
uniform and a bullet proof vest marked “POLICE”, and having identified himself by
saying “Police” he heard a gunshot, so he took cover and warned his colleagues.

[22] It was his evidence that the Renault Triber motor vehicle, then screeched its
tyres and sped off. He then shot at its tyres to bring it to a halt and his colleague also
shot at the wheels. They then gave chase but found the car abandoned with flat
tyres, about 500m away. They then secured the scene and also searched nearby
houses, and none of the passengers found. Once other police came, they returned
to the guesthouse. He confirmed that they only activated their blue lights when they
were giving chase to the Plaintiff’s motor vehicle, after the shooting.

[23] Phillemon Leboho Mashilo testified that on the day question he assisted in
shooting at the Plaintiff’s moving car in order to bring it to a standstill and that the
shooting was justified because a shot was fired from the Triber first and they
retaliated and that there were signs that they were police as they were in full police
uniform and with bullet proof vests marked “POLICE”, and thus not true that Plaintiff
was of the belief that they were being hijacked.

was of the belief that they were being hijacked.

[24] He told court that that W/O Twala identified themselves by shouting the words
“POLICE’, lastly that, even the people who ran back to the guest house had shouted
the words “POLICE”. Lastly, that the force that they used was equivalent to the

actions of the Plaintiff and that there were people’s lives in danger, including that of
his colleague.

ISSUES NOT IN DISPUTE
[25] It is not in dispute that the members of the South African Police Services, on the
day in question, were acting within the course and scope of their employment with
the Defendant.

[26] It is further not in dispute that the Plaintiff’s motor vehicle was shot by members
of the South African Police Services on the day in question.

ISSUES IN DISPUTE
[27] It is in dispute that the shooting by the members of the south African police
services was justified.

[28] It is also in dispute that the Plaintiff was aware that he was approached by police
at the time he drove off and at the time of the shooting.
[29] It is further in dispute that the Plaintiff fired any shot at the members of the police
first or at all.

[30] Lastly, it is in dispute that the Defendant bears liability for the Plaintiff’s injuries
and damages to his motor vehicle.

ONUS AND STANDARD OF PROOF
[31] It is well established that the standard of proof in a civil case is the “balance of
probabilities” and in order for a party to succeed in his claim, it is required that he
satisfies the court that he is entitled to the relief sought. The burden on this case,
falls upon the Plaintiff to prove that he was unlawfully and wrongfully shot by the
defendant and the defendant has to justify the shooting.

LEGAL PRINCIPLES AND ANALYSIS
[32] Before court, are mutually destructive versions. On the one hand, the Plaintiff
stating that he drove off when approached by the police because of a belief that he
was being hijacked. On the other hand, the defendant submitting that they identified

themselves as police, and that they were in full police uniform including a marked
bullet proof vest.

[33] The other issue, relates to the contrasting versions, with the Defendant stating
that the Plaintiff fired shots or a shot at the police first and the Plaintiff stating that he
never fired any shot/s at the police.

[34]. When dealing with two mutually destructive versions, the approach that the
court will adopt is the one which was set out in the matter of National Employer’s
General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E), where the court stated;
“It seems 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 rests. 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 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 credibility
of a witness will therefore be inextricably bound up with 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 probably true. If however, the probabilities
are evenly balanced in the sense that they do not favour the Plaintiff’s case and
more than they do 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.”

defendant’s version is false.”

[35] In Stellenbosch Farmers’ Winery Group Pty Ltd and Another v Martell Et
CIE and Others 2003 (1) SA 11 (SCA), the Supreme Court of appeal gave guidance
as to the technique to be used by courts when dealing with mutually destructive
versions, where the following is stated;
“The technique generally employed by courts in resolving factual disputes of this
nature may conveniently be summarised as follows. To come to a conclusion on the

disputed issues a court must make findings on (a) the credibility of the factual
witnesses; (b) their reliability; and (c) the probabilities. As to (a) [credibility], the
court’s finding on the credibility of a particular witness will depend on its impression
about the veracity of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the witness[s] candour and
demeanour in the witness box; (ii) his bias, latent and blatant; (iii) internal
contradictions in his evidence; (iv) external contradictions with what was pleaded or
put on his behalf, or with the established fact or with his own extra curial statements
or actions; (vi) the calibre or cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to the (b), a witness’ [reliability] will depend, apart from the factors mentioned
under (a)(ii), (iv) and (vi) above, on (i) the opportunities he had to experience of
observe the event in question and (ii) the quality and integrity and independence of
his recall thereof. As to (c) [probabilities], this necessitates an analysis and
evaluation of the probability or improbability of each party’s version on each of the
disputed issues. In light of the assessment of (a), (b) and (c) the court will then, as
the final step, determine whether the party burdened with the onus of proof has
succeeded in discharging it. The hard case, which will doubtless be the one, occurs
when a court’s credibility findings compel it on one direction and its evaluation of the
general probabilities in another. The more convincing the former, the less convincing
will be the latter. But when all factors are equipoised probabilities prevail.”

[36] I wish to start with the two notable contradictions in the version of the Plaintiff. In
his particulars of claim, he stated that the members of the police aforesaid actually
fired several gunshots towards him whilst was seated inside his ‘parked’ motor

fired several gunshots towards him whilst was seated inside his ‘parked’ motor
vehicle, however, in his evidence in chief, he stated under oath that he panicked and
‘drove off’ and ‘as he drove off’, ‘he heard gunshots firing at the car he was driving’.

[37] The version therefore pleaded by the Plaintiff, in respect of the shooting is
materially different from the version he gave in court. And court is now sitting with
two versions by the Plaintiff, that he was shot at whilst sitting in his parked car and
the shots having been fired whilst he drove off. This starts putting into question the
reliability of the Plaintiff’s version of events as these contradictions were not even
clarified in court.

[38] In Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2
All SA 474 (SCA) at para 11, the court held that; “ a party has a duty to allege in the
pleadings the material facts upon which it relies. It is impermissible for a plaintiff to
plead a particular case and seek to establish a different case at the trial.

[39] The Plaintiff’s witness, his girlfriend, Felicia Maphosa, also gave the version that
is contrary to the pleaded case, stating that the Plaintiff drove off after he was told by
his friend to drive off and as they drove off their car was shot at. In line with
sentiments of the SCA in the Slabbert case, it is impermissible for the Plaintiff to
plead a particular case and summersault and tell a different version to court. In this
instance, the Plaintiff’s witness tells a version which does not corroborate the
Plaintiff’s pleaded version.

[40] The credibility of the Plaintiff is thus put into question as the court then has to
ask itself, which of the two versions by the Plaintiff must the court accept to be true?
And the principle, is that a litigant is bound by his or pleadings.

[41] The versions of the Plaintiff and her girlfriend, also differ in as far as they ralate
to the point at which the Plaintiff drove off. The Plaintiff’s girlfriend told court that The
Plaintiff’s friend Mavivi told Senzo to drive off because the car had been following
them. Whereas the Plaintiff told court that his friend said they wanted to hijack them
so he panicked and drove off. The Plaintiff did not state that he was instructed by his
friend to drive off, but that he drove off because he panicked.

[42] The version of the Plaintiff is riddled with material contradictions such that it is
difficult to accept it as reliable and rendering it improbable that the Plaintiff was not
aware that he was being approached by the police when he decided to drive off.

[43] The version of the defendant, with its minor imperfections, mainly in respect of

[43] The version of the defendant, with its minor imperfections, mainly in respect of
what happened prior to the Plaintiff’s motor vehicle being identified as suspicious,
and whether it was correctly and or fully identified during the briefing prior to the
operation, is found to be believable, in as far as it relates to the actual shooting.

[44] The evidence of the two witnesses, who are police officers, Twala and Leboho
Mashile, corroborated each other in as far the shooting is concerned and that is that
the Plaintiff fired the first shot at them and sped off, thereby prompting them to shoot
back and specifically aiming at the vehicle . There were no contradictions in their
evidence and no exaggeration found and court finds that their version probably
reasonably true.

[45] I must pause to point out that the witness for the Plaintiff, Mr Abel Khoza ’s
testimony, that no cartridges were found on the scene or in the Plaintiff’s motor
vehicle, does not in any way prove that no shots were fired by the Plaintiff . Mr
Khoza, in his evidence stated that even the used cartridges from the shots fired by
the police were not recovered, and before court there is evidence that shots were
indeed fired by the police. Therefore, the question, which the court was not
necessarily called to answer, is whether the investigations were thorough or not?
Because if the investigations were thorough, there would have been recovery of at
least the police’s used cartridges , to then persuade court that there is proof w here
shots were fired and none where no shots were fired.

[46] The court accept s as the most probable version, the corroborated evidence of
the two defendant witnesses, that they were in full police uniform when they
approached the suspicious car which had been identified as one of the cars which
were to form part of the planned robbery , that the police retaliated after a shot was
fired by the Plaintiff who then drove off . Further that the intention was to immobilise
the vehicle of the plaintiff which the Plaintiff drove off at the sight of the police.

[47] It is difficult to believe that Plaintiff’s witness, Felicia, when she stated that the
police officers were wearing their own clothes and not in uniform. This the court
notes, as the witness’ evidence was that their car had windows tinded and dimmed

notes, as the witness’ evidence was that their car had windows tinded and dimmed
and could not see the person knocking properly. Yet on the other hand, she wants
the court to believe that she saw them wearing their own clothes. Her contradictions
points to a narrative that was fabricated to say that they were not aware that they
were approached by police.

[48] The evidence before court, that the petrol tank of the Plaintiff’s motor vehicle
was shot as well as the tyres, corroborates the version of the defendant that the
shots were aimed at immobilising the Plaintiff’s motor vehicle, and not aimed at the
Plaintiff or the other passengers. This adds weight also to the credibility of the
defendant’s witnesses, as the Plaintiff’s witness, Felicia also confirmed that the
motor vehicle was shot at the petrol tank and tyres.

[49] There is thus no other justified way that the defendant would have acted under
the circumstances of this case, other than how Twala and Mashilo acted on that day
in question as their lives were threatened by the shot fired by the Plaintiff and the
Plaintiff, who was suspected of being part people who were planning to commit a
crime, drove off fleeing police who had identified themselves and who were in police
uniform.
RULING
[50] In light of the contradictions and improbability in the Plaintiff’s version, court
finds that the Plaintiff did not tell the truth and his version accordingly rejected as
false. And court has no reservations in accepting the version of the defendant as true
and thus accepting it. The Plaintiff has failed to prove any wrongful or unlawful
conduct on the part of the defendant and the defendant has on the other hand
successfully justified the shooting on the day in question. Accordingly, defendant is
not liable for the damages suffered by the Plaintiff on the day in question and thus
Plaintiff’s claim stands to fail.

[50] There is no reason why costs should not follow the result.

ORDER
In the result, I make the following order:

1. The Plaintiff’s claim is dismissed.
2. Plaintiff is ordered to pay the costs of the action on party and party scale.

_________________________
TLL NYAMBI
ACTING JUDGE OF THE HIGH COURT

Appearances:
For the Plaintiff : Mr K Khoza
: Mpho Mashiloane Attorneys

For the Defendant : Adv MS Ngomane
: NP Ngubane Attorneys
c/o The State Attorney, Nelspruit

Date of hearing :11 November 2025
Date of Judgment :19 January 2026

This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date of hand down is deemed to be the 19th of January
2026 at 15:00

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