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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:

• Case Number: 1336/2008

• High Court: Port Elizabeth

• DATE HEARD: 7 August 2009

DATE DELIVERED: 21 June 2009

JUDGE(S): D. Chetty

LEGAL REPRESENTATIVES –

Appearances:

• for the Applicant(s): Adv Price

• for the Respondent(s): Adv Gqamana

Instructing attorneys:

• Applicant(s): Clark & Erasmus (G.C Clark)

• Respondent(s): State Attorney: Ref: Y

CASE INFORMATION -

2. Nature of proceedings: Action

3. Topic:

Key Words: Delict – Damages for assault, wrongful arrest and detention – Plaintiff allegedly shot in self defence – Plaintiff thereafter arrested without warrant on charge of having committed offence in presence of arresting officer and for having committed robbery – Evidence established that plaintiff arrested in mistaken belief he was involved in robbery – shooting sought to be justified on the ground that plaintiff was the robber – Evidence contrived to justify shooting - Defendant liable to compensate plaintiff.

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, PORT ELIZABETH)

Case No: 1336/2008

In the matter between

ELROY ERASMUS Plaintiff

And

MINISTER OF SAFETY AND SECURITY Defendant

Coram: Chetty, J

Date Heard: 7 August 2009

Date Delivered: 21 August 2009

Summary: Delict – Damages for assault, wrongful arrest and detention – Plaintiff allegedly shot in self defence – Plaintiff thereafter arrested without warrant on charge of having committed offence in presence of arresting officer and for having committed robbery – Evidence established that plaintiff arrested in mistaken belief he was involved in robbery – shooting sought to be justified on the ground that plaintiff was the robber – Evidence contrived to justify shooting - Defendant liable to compensate plaintiff.

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JUDGMENT

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CHETTY, J

[1] The plaintiff claims damages from the defendant in consequence of bodily injury sustained by him on Friday, 17 August 2007 when he was shot and wounded by Constable Lyle Anthony Pyne (Pyne) in Bethelsdorp, Port Elizabeth. In addition to the aforegoing the plaintiff alleges that he was thereafter wrongfully and unlawfully arrested without a warrant and, wrongfully and unlawfully detained under police guard at the Livingstone hospital in Port Elizabeth until his release at approximately 2 p.m. on Sunday, 19 August 2007. At the inception of the trial and on the application of the parties I ordered a separation of the issues in terms of Rule 33 (4) of the Uniform Rules of Court. This judgment is accordingly confined to determining the issue of the defendant’s liability, the quantum of his claim and its details not being relevant for present purposes.

[2] The defendant has pleaded to plaintiff’s claim alleging that –

1. As regards the shooting – “the plaintiff was shot at once in the leg by Constable Lyle Anthony Pyne when the plaintiff attempted to stab him with a knife during the course of the plaintiff’s arrest” and;

2. As regards the arrest and subsequent detention, that – “the arrest and detention were lawful in that the arresting officer was authorised to arrest the plaintiff in terms of s 40 (1) (a) of the Criminal Procedure Act No 51 of 1977 in that the plaintiff committed an offence in his presence”; and “. . . the arrest and detention were lawful in that the arresting officer was authorised to arrest the plaintiff in terms of s 40 (1) (b) of the Criminal Procedure Act in that there was reasonable suspicion that the plaintiff had committed an offence of armed robbery”.

[3] It will be gleaned from the aforegoing that the defendant has in each instance referred to in the preceding subparagraph contended that the arrest was lawful. Consequently the onus of proving the lawfulness of the arrest and of the detention which followed it is upon the defendant. In Minister of Law and Order and Others v Hurley and Another¹ Rabie, CJ, succinctly summarised the position thus –

“An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law. See generally Weeks and Another v. Amalgamated Agencies, Ltd 1920 AD 218 at 226; Cohen Lazar & Co. v. Gibbs 1922 TPD 142 at 144-145; May v. Union Government 1954(3) SA 120(N) at 124 H; Ingram v. Minister of police 1962(3) SA 225(W) at 227 D, and Areff v. Minister van Polisie 1977(2) SA 900(A) at 914 G.”

[4] As regards the actual shooting, which is admitted on the pleadings, the defendant likewise has the burden of proving it to be lawful on a balance of probabilities. See Mabaso v Felix² where the court, after an exhaustive analysis of earlier case law and academic writing concluded³ -

“Turning now to the pleadings in the present case we think that their essence and effect are as set out above. Consequently, according to substantive and adjective law the onus was on the defendant to prove that in shooting and injuring the plaintiff he acted in self-defence and that such shooting was reasonably and legitimately required for defending himself.”

Counsel for the defendant correctly conceded that the defendant was saddled with the onus and the duty to begin. With that prelude therefor I turn to the evidence adduced to determine whether the defendant has discharged the onus resting upon it. The defendant opened its case calling, as its first witness, Constable Pyne.

[5] Pyne was off duty and resting at home when he received a telephone call from his mother-in-law who informed him that her minor son, Brett Johnson (Brett), had been accosted and robbed. Pyne sprang into action. He proceeded to his mother-in-law’s home, some 14 kilometres from his own and interviewed Brett on his arrival there. The latter stated that whilst walking with friends, a person robbed him of his cell phone at gunpoint. Being acquainted with the area, Pyne telephoned a colleague of his, one Inspector Calvert (Calvert) and elicited information concerning the recognised spots where known miscreants were wont to assemble. Calvert told Pyne that he would accompany him and accompanied by a colleague, Inspector De Souza (De Souza), arrived in their police vehicle and met up with him. Brett gave Pyne a description of his assailant describing him as short in build, a scar on his face, dressed in an overall of sorts and wearing a beanie on his head. Although Brett did not specifically mention his assailant’s race, Pyne assumed, given the location where the incident occurred, that he was a coloured male.

[6] Calvert and De Souza explained the intended modus operandi. Pyne and Brett would follow them as they cruised past known gangster hangouts with the aim that Brett would be able to see and identify his assailant. The exercise proved uneventful and yielded no results. Eventually Pyne and Brett parted company with Calvert and De Souza and proceeded in the direction of the Bethelsdorp police station to enable Brett to lay a formal charge of robbery. En route thereto and as they passed an open field near a school, a person emerged from the field whereupon Brett immediately identified him as the robber. Pyne asked if he was certain and when Brett replied in the affirmative, Pyne made a u-turn and followed the person, whom, it is now common cause was the plaintiff. Pyne shouted out to him saying that he wanted to talk to him but the plaintiff continued walking making gestures which Pyne construed as fobbing him off. Pyne hooted at him but to no avail and then stopped his vehicle, alighted and proceeded on foot behind the plaintiff calling upon him to stop. The plaintiff however swore at him and continued on his way. At this stage Pyne was about 5 paces behind the plaintiff.

[7] As Pyne came closer, about 2 to 3 paces from him. He observed the latter removing what he described as an Okapi knife from his right pocket, turned and executed a stabbing motion in his direction. Pyne removed his firearm from his waist and fired one shot aiming at the plaintiff’s legs, causing him to fall to the ground. He grabbed hold of the plaintiff’s hand, disarmed him of the knife and dragged him out of the street. He instructed Brett to go to nearby houses and summon the police. After Brett departed he closed the knife and kept it on his person. Shortly thereafter Brett returned followed after an interval, by members of the Bethelsdorp police station including one Inspector McCarthy to whom Pyne handed the knife. A civilian person then arrived on the scene but Pyne told him to move away saying that it was a crime scene. He identified this person as Henry Arends, about whom, more later. At the conclusion of his evidence in chief Pyne volunteered the information that when Brett returned to the scene he once more asked him whether the plaintiff was the person who had robbed him and Brett once more replied in the affirmative.

[8] As corroboration for Pyne’s evidence that the plaintiff was the person who had been positively identified by Brett as his assailant, the latter was called as a witness. Brett is a young boy, a grade 10 scholar at the Sanctor secondary school. After school, he was walking in the company of some school friends and noticed a person emerging from what he described as a plot towards Stanford road. The person asked him what time the taxi’s stopped but he became suspicious and walked on. He noticed that the person wore a black top, overall pants and a beanie on his head. As he walked he felt his arm being grabbed and when he looked back, saw that this person had a gun and felt it pressing into his abdomen. The person ordered him to hand over his cell phone. His reply was that he had none. The person searched him, found his cell phone and said that he could go and fetch anyone he wished before running away in the direction of Bethelsdorp.

[9] He confirmed that Pyne arrived at his home where he related what had transpired and narrated their abortive attempt to find his assailant when accompanied by Calvert and De Souza. He further testified that whilst they were driving towards the police station a person came running out from a bushy area adjacent to the road whereupon Pyne immediately asked if this was his assailant. When he replied in the affirmative Pyne shouted that he is a policeman and that the person should stop. The person however proceeded undeterred. Pyne stopped the vehicle, pursued him and when he was a short distance away the person looked at Pyne twice before the latter shot him.

[10] Inspector McCarthy confirmed that Pyne handed an Okapi knife to him, the only difference in their evidence being that according to McCarthy the knife was open.

[11] The plaintiff’s evidence stands in stark contradiction to that tendered by the defendant’s witnesses. He denied having robbed Brett maintaining that he was at work during the course of the day whereafter he and a friend, Henry Arends, were dropped off at a service station by their employer. The two of them made their way to a local tavern where they purchased wine before repairing to Henry’s house where they consumed some of the liquor. After a while he decided to go to his employer’s house to ascertain whether he could work the next day and whilst en route thereto observed an unmarked vehicle on the side of the road.

[12] Whilst running towards his employer’s home he heard a gunshot, fell to the ground and realised that he had been shot. He denied being in possession of a knife. After the arrival of the police and the ambulance he was eventually taken to the Livingstone hospital where he was kept under police guard until Sunday afternoon.

[13] It is common cause that after the shooting, Brett laid a charge of robbery against the plaintiff at the Bethelsdorp police station. Barely a day and a half later and whilst recuperating in hospital, the plaintiff was informed that the charge had been dropped. It is common cause that the charge was never persisted with. What instead transpired is that Pyne was charged with attempting to murder the plaintiff. At his subsequent trial however he was discharged from prosecution at the conclusion of the state case after the adduction of evidence by the plaintiff and Henry Arends. The transcript of those criminal proceedings formed part of a bundle of documents at the trial in casu and were referred to during the trial. In his judgment discharging Pyne from prosecution in terms of s 174 of the Criminal Procedure Act the magistrate applied the incorrect test, holding, rather tersely, that the version of Pyne, as put to the plaintiff and Arends could “reasonably possibly (be) true”. Be that as it may, nothing really turns on the fact that Pyne was discharged as aforesaid.

[14] In analysing Pyne’s evidence relating to the actual shooting of the plaintiff I am mindful of the fact that he appeared extremely nervous when called to testify. He ascribed his unease to the fact that he had never before appeared in a High Court. Notwithstanding, his evidence is not a model of clarity. He is, on his own version, an experienced policeman and his narrative of the events should have presented no difficulties. Central to his version was the fact that the plaintiff was armed with a knife. Yet Brett, who witnessed the events as they unfolded, was constrained to admit that he did not see any knife in the plaintiff’s possession. Although Brett sought to dilute this evidence during cross-examination by stating that he could not be entirely sure if the plaintiff was armed because he was some distance away, the clear import of his evidence in chief however was that the plaintiff was unarmed when he was shot.

[15] The plaintiff is an ordinary simple individual. He made a good impression on me and I accept his evidence that he was not armed with a knife. During his cross-examination he was challenged to explain the anomaly between the averments in his particulars of claim that he had been shot twice and his evidence that he was shot once. His answer was simple and straightforward. After being shot he fell to the ground and experienced excruciating pain which endured until his hospitalisation and treatment. According to him clinical examination revealed the presence of a bullet fragment in the right leg. In addition an entrance bullet wound on the rear left side of the left knee with a corresponding exit wound on the right side of the left knee presented. I interpolate to say that it is common cause that the bullet passed through the left knee before becoming lodged in the plaintiff’s right leg. In such circumstances the plaintiff’s erroneous conclusion that he had been shot twice is understandable. During his cross-examination the plaintiff was asked to pinpoint the entrance wound. What he pointed to accords with what is recorded earlier herein and serves as corroboration for his evidence that he was shot at from behind. In contradistinction thereto Pyne’s evidence that he shot the plaintiff when the latter was barely two paces from him seems highly improbable and does not accord with the objectively established facts viz. position of the entrance wound and the bullet tract.

[16] It is furthermore not in issue that the plaintiff was, to an appreciable extent inebriated on the day in question. His evidence concerning the events which preceded the shooting and to which I adverted to hereinbefore was never challenged save to suggest that after he was dropped off by his employer in the same vicinity where Brett was robbed he had the opportunity to rob and perpetrated the robbery. Although neither Pyne nor Brett could give specific times when they reconnoitred the area, it is inconceivable that the plaintiff could, in the time period in question, have robbed Brett and thereafter have divested himself of the firearm and cell phone and effect a change of clothing by donning a black jacket. The presence of Henry Arends on the scene immediately after the shooting in fact supports the plaintiff’s version that he was in the latter’s company immediately prior to the shooting.

[17] The reason advanced by Pyne for following the plaintiff initially in the vehicle and thereafter on foot was that Brett had identified the plaintiff as his assailant when the latter emerged from the field on the side of the road. If that evidence is correct then there would have been no reason why Pyne would ask Brett to confirm that that was so after he had been sent to telephone the police. In this context Brett’s evidence is in direct conflict with that of Pyne. According to Brett, it was Pyne who asked him whether the person who emerged from the field was his assailant. It was when he replied in the affirmative that Pyne went in hot pursuit of the plaintiff. These inconsistencies in their evidence ineluctably compels the conclusion that on order to justify the shooting of the plaintiff. Pyne and Brett conspired with each other to falsely implicate the plaintiff as the robber. That Brett was robbed admits of no doubt. His evidence identifying the plaintiff as his assailant is however clearly contrived to afford justification for Pyne’s conduct.

[18] It is of importance to note that when Brett was questioned by the police that very evening he was unable to provide a description of his assailant. Under cross-examination he was confronted with an entry made by Inspector Andrews in the investigation diary which read “He is not sure of the description.” He responded by saying that he in fact gave Inspector Andrews a description. That evidence is patently untrue. It is inconceivable that the entry would read as it does if Brett in fact gave a description of his assailant. It was obvious when the plaintiff testified that he has no discernable scar on his face. Counsel for the defendant however, in order to lend credence to Brett’s evidence that the plaintiff had a scar, drew attention to the fact that there were lines under the plaintiff’s eyes which he contended resembled scars. The plaintiff explained that these lines were caused by sleep deprivation as a result of the pain and insomnia caused by the shooting and I accept the plaintiff’s evidence in this regard. Visually they certainly do not appear to resemble scars and would most certainly not have been present on his face prior to the shooting. The discrepancy in the evidence of Pyne and McCarthy concerning the knife assumes importance when considered against the backdrop that the plaintiff was wrongfully shot. The mere fact that it was entered into the SAP13 later that day is entirely irrelevant. Having wrongfully shot the plaintiff, the knife was proffered by Pyne as evidence justifying the shooting.

[19] Upon an appraisal of the evidence I am satisfied that Pyne’s version as to the circumstances in which he shot the plaintiff is false. It is obvious that after the shooting he conspired with Brett by cajoling the latter to identify the plaintiff as the person who had robbed him. I accept the plaintiff’s version that he was shot at from a distance whilst he was en route to his employer’s home and am driven to the conclusion that he was shot in the mistaken belief that he had robbed Brett of his cell phone. That he was thereafter wrongfully arrested and detained admits of no doubt - it was a necessary corollary to justify the shooting. I accordingly hold that the defendant is liable to the plaintiff for such damages as he may in due course prove and in the result the following order will issue –

1. The defendant is liable to compensate the plaintiff for such damages as he may in due course prove.

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D. CHETTY

JUDGE OF THE HIGH COURT

Obo the Plaintiff: Adv Price

Instructed by Clark and Erasmus

14 Trafalgar Square

North End

Port Elizabeth

(Ref: G.C Clark)

Obo the Defendant: Adv Gqamana

Instructed by the State Attorney

29 Western Road

Central

Port Elizabeth

(Ref: 726/2008/Y)

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