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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NUMBER: A735/11

Date: 25 November 2013

NOT REPORTABLE

Not of interest to other judges

Revised

In the matter between:

MINISTER OF SAFETY AND SECURITY..................APPELLANT

and

MKHANISILE JAJILE................................................RESPONDENT

JUDGMENT

TLHAPI J

[1] This is an appeal against the judgment of Goodey AJ sitting as court of first instance. The appeal is with leave of the trial court. The plaintiff sued for damages in the amount of R510, 000 for injuries sustained when, during a shooting incident robbers were fleeing a crime scene. It was agreed in terms of rule 33(4) that the issues be separated and the court proceeded to deal only with the issue of liability. The parties further agreed that in the event that the court determined that shots were fired by the defendants, the matter be postponed sine die for the determination of negligence.

For convenience the parties shall be referred to as they were in the trial court

BACKGROUND

[2] In his amended particulars of claim the plaintiff alleged that:

3.

The plaintiff was standing on the pavement next to the Randburg Inn at the corner of Republic and Main Avenue, ...on the 4th August 2006 when he was shot with a firearm by a member of the South African Police who had acted at all material times within the ordinary course and scope and duties of his employment with the defendant

5.

The said Policeman. ..had indiscriminately and/or recklessly and or Negligently and without due regard for the safety of the plaintiff fired a Shot with a firearm which hit the Plaintiff in his left lower leg...the Plaintiff had sustained serious bodily injuries...”

[3] In their amended plea the defendant pleaded as follows:

“3.2 After the bank robbery at the First National Bank at the corner of Main And Republic Road, Randburg on 4 August 2006, several shots were fired by the police tov\/ards the robbers at the corner of Cross and Malibongwe Drive and at the Randburg Hoerskool only and here the robbers shot several shots towards the police. The robbers shot several shots at the police at the scene of the bank robbery too.

3.3 As a result of the police action, certain of the robbers were arrested and detained and some of them were also injured due to the police action. ”

[4] It was common cause that on 4 August 2006 while in Randburg and during a shooting incident, while some robbers were fleeing from the vicinity of the bank, the plaintiff sustained a gunshot wound to his left leg, below the knee. At the time of the shooting he was standing on the sidewalk, near the intersection of Main and Republic roads. He was facing north in the direction of First National Bank reading his newspaper. On his side of the road was the Randburg Inn which was situated diagonally across the parking lot entrance/exit of the Bank. Main road has four lanes, with two lanes proceeding in a northerly and two lanes in a southerly direction.

[5] The plaintiff testified that he saw an unmarked police vehicle stop on Main road opposite the entrance to the Inn and the bank. Although he could not recall how the police were clad, the police vehicle was unmarked. He concluded that they were police because the said vehicle had its siren on as it approached the bank. The vehicle took a turn to face south. He demonstrated the position of the police vehicle by making a mark ‘SAP’ on exhibit 1, on the inner lane of the road with the vehicle facing south in the direction of Republic road. The plaintiff testified that he stood up to look at the police vehicle. The two police officers came out of the vehicle, proceeded towards the left side of their vehicle (the side of the Inn) and were facing towards the bank. They fired several shots at the robber’s vehicle that was exiting the bank’s parking lot in a southerly direction.

[6] The police were the only ones who were shooting. The windscreen of the robbers vehicle was riddled with bullets and destroyed in the process. The plaintiff did not observe any shots being fired from the robbers vehicles as they drove past him. He testified that the police stopped shooting when the robbers vehicle entered the Main and Republic road intersection. The police followed them and he heard gun shots being fired in the distance. He could not dispute the version of the defendants that the robbers were found in possession of an R5 rifle, an AK47 and two 9mm pistols and that there were spent cartridges in their vehicle when they were eventually apprehended.

[7] Warrant officer Swart (‘Swart’) and Warrant Officer Shai (‘Shai’) were colleagues stationed at the Randburg Police Station. Swart testified that they proceeded to Main road after receiving a report that two suspicious vehicles, a white Maxima and a grey BMW had entered the premises of the bank. They travelled in an unmarked Toyota Corolla and although the vehicle had a siren he decided not to switch it on lest the robbers were made aware of their presence. Only the ‘strobe’ lights (flickering lights) were on.

[8] At the intersection of Main and Republic road a report came through on radio that there was indeed a bank robbery in progress. They decided to stop on the road outside the bank in order to block the way out and, from where they stopped they were able to see many robbers run out of the bank in possession of firearms and into their vehicles. The white Maxima was parked in front of the BMW. He established afterwards that twelve robbers were involved.

[9] Swart testified further that although he and Shai were each in possession of 9mm pistols with 15 rounds, he decided to arm himself with the R5 automatic rifle which was in the boot. While inside the vehicle he opened the boot by pulling a lever next to the drivers seat in order to retrieve the rifle. He got out of his vehicle and, rushed towards the boot. A man in the Maxima who was in possession of an AK47 fired several shots towards their vehicle which struck the right side and back window. Shots were fired in a circular movement which sounded like an automatic weapon was being fired. He immediately closed the boot without retrieving his rifle and, in a crawling hunching position, sought cover at the left back wheel.

[10] Shai who was seated in the front passenger seat also left the vehicle to position himself behind the left front wheel. According to Swart, the bank was situated at a lower elevation with a steep hill towards the exit and from there he could see the robbers vehicles by peeping underneath his vehicle. The occupants of the fleeing vehicles continued firing shots at them through the back window of their vehicle. When the robbers were ahead of them and about to enter the intersection of Main and Republic roads, he stood up and ran towards the front to occupy the driver’s seat while Shai occupied the passenger seat. He radioed for help. They gave chase and he fired his service pistol at the corner of Malibongwe and Cross roads, and ultimately arrested five robbers.

[11] Swart denied that they had shot at the robbers in the vicinity of the bank because their 9mm pistols could not match the heavy calibre of ammunition used by the robbers. It was only after the arrest when he was informed of a person who had been shot in the vicinity of the bank. Shai corroborated Swart’s evidence in material respects.

[12] The issue to be determined by the trial court was whether the plaintiff had on a balance of probabilities established that the police fired shots at the scene of the robbery. The trial court concentrated on particular aspects of the evidence in arriving at a conclusion that the police fired shots at the robbery scene, that is, in the vicinity of the bank.

1. First, judicial notice was taken of the common occurrence of bank robberies in our country, ‘that small wars’ break out and that shoot-outs between the police and robbers were a common occurrence. While it is true that the crime of robbery was prevalent in the country there was no evidence adduced that bank robberies in particular topped the scale and, were of prevalent occurrence. In my view this finding was tantamount to the court rejecting in its entirety, the evidence of the defendants and this constituted a misdirection. In the same breadth the court in its judgment indicated that the evidence had to be evaluated on the basis that there were two mutually destructive versions.

2.Secondly the trial court commented on the following:

1.AD: BOOT

Swart was criticized for wasting time in closing the boot instead of taking the R5 rifle “this is a reaction unit, it is like an old Texan with a revolver in his holster ready to fire”

Swart testified that as soon as he alighted from the vehicle and before he could reach the boot he was fired on. He hunched towards the back of the vehicle, managed to close the boot and took cover behind the left rear wheel. At that time his vehicle was riddled with bullets and the back windscreen was shuttered. The bank was situated at a lower elevation and he observed the movement of the robbers vehicle by peeping beneath his vehicle. Although the court suggested that Swart should have taken his rifle and gone into action that was not his version. He testified that they did not shoot because their 9mm pistols were not a match to the heavy calibre AK47 rifles used by the robbers.

2. AD: Statements from the docket: that Swart and Shai’s statements from the docket unlike the other statements, were undated and not deposed to under oath.

It is my view that the court had to evaluate the evidence given under oath before it, together with those exhibits referred to during evidence and, not draw an adverse inference especially where the witnesses were not even cross examined or asked to explain the anomaly now raised in the judgment.

3.AD: The Shell casings

Swart and Shai were not the investigating officers in the robbery case and they testified that they were not present when investigators attended the crime scene to collect evidence. The criminal case was investigated by a separate unit ‘Sox’ and not by any members of the Randburg SAPS branch. Swart testified that statements were taken from them and he gave account on the use of his firearm to his senior whose duty it was to prepare a report on the same day. They did not have access to the docket.

While I agree that more information regarding the spent cartridges at the crime scene, in the robbers’ vehicle and other relevant evidence from such scene (damage to the Randburg Inn building) was required for the plaintiff to discharge his onus, the defence witnesses could not be blamed for any sloppiness in the investigation of the incident. Swart who was not the investigating officer was cross examined at length on the content of the docket and the investigation diary.

In my view even if the original docket went missing there was a possibility of reconstruction of the scene from the records in possession of the other police who collected evidence at the crime scene. The issue for determination was whether the police had fired shots in the vicinity of the bank and this had to be determined from the evidence presented to the trial court.

Again, Swart did not testify that no empty cartridges were collected from the scene, as concluded in the judgement. Evidence was led regarding the cartridges found on the premises of the bank as seen from a photograph forming part of the record. In my view the presence of the cartridges at the bank gave credence to the version of the police officers that shots were fired by the robbers from the bank. The trial court found that there was a discrepancy in the evidence of the plaintiff regarding the spent cartridges he alleged to have seen on the tarmac. When the version of the spent cartridges found on the premises of the bank was put to the plaintiff during cross examination, he for the first time testified that he had seen spent cartridges on the tarmac, when he turned around and, as he was being lifted into the ambulance. This to me sounded like a made up account on the spur of the moment. Swart denied that they had fired shots and expressed doubt that the plaintiff could have been in a position to observe a spent cartridge on the tarmac at a distance of 70 meters from where he was after they gave chase to the robbers and, where the crime scene on a busy road had not been secured immediately after they had left the scene.

4.AD: The impression of the witnesses and conclusion

The following was stated in the judgment:

“the question arises whether it is more probable that the plaintiff would have turned around, while as Swart testified shots were flying from the robbers, in the direction of the police. Is that more probable than the police shooting, while the robbers are driving away from the scene? I cannot but find that the turnaround (turnabout of the plaintiff) is to improbable or much less probable than having been shot. I stress again I do not find that the police shot him, as all that I was asked to find, is whether the police fired shots or not. I was not asked to find whether a police bullet hit the plaintiff or not”

In my view, this conclusion was clearly influenced by the trial court’s taking judicial notice of shoot-outs between the police and the robbers during bank robberies. Such judicial notice should not have been taken.

Again, a question was put to Swart in cross examination to opine on how the plaintiff could have sustained his injury. His response was that with the robbers shooting at random, it was improbable that the plaintiff would have remained stationary as an onlooker. The plaintiff could have turned in the direction of Republic road and was struck by a bullet from the fleeing vehicle of the robbers. This explanation cannot be taken to mean that it was Swart’s version on how plaintiff sustained the injury.

The court found that the evidence of Shai was rehearsed and had to be treated with caution. Shai was not cross examined on this aspect to test whether this conclusion was justified. He corroborated Swart’s version.

[13] Mrs Kriel for the defendant submitted that where there were two mutually exclusive versions, the evidence of the plaintiff had to be tested against the general probabilities to decide whether such evidence was true, accurate and acceptable.

[14] Mr Rontgen for the plaintiff submitted that the defendant never sought to amend their pleadings prior to commencement of the trial and before close of pleadings. The defendant had initially admitted that the police and robbers fired several shots at each other at the comer of Main and Republic roads. They could not be seen to argue differently.

[15]I deal first with the submission by Mr Rontgen, which I differ with. It is clear from the judgment that the defendant’s application to amend its pleadings was

properly argued during the trial.

Section 15 of the Civil Proceedings Evidence Act 25 of 1965 provides:

“It shall not be necessary for any party in any civil proceedings to prove nor shall it be competent for any such party to disprove any fact admitted on the record of such proceedings”

In Sliom v Couzyn 1927 TPD 438 at 441 Tindall J stated:

“The said affidavits accordingly amounted to an admission that the cession was by way of security. If a similar admission had occurred in a pleading in a trial case, it is clear that leave would not have been given to withdraw the admission, in the absence of evidence explaining the circumstances under which the admission was made (see authorities cited in Young v Land Values Ltd 1924 WLD 216) It seems to me, therefore that in the absence of an affidavit stating that the admission that the cession was by way of security was made in error and explaining how that admission came to be made, the learned judge was not entitled to allow oral evidence to be heard”

[16] Annexed to the bundle of documents was a notice by the defendant to amend its plea as at paragraph 3.2. This was accompanied by an affidavit deposed to by Mr J J Le Roux attorney for the defendant, giving a full explanation why the application was filed at that late stage in the trial and, the reasons for retracting the admission made in the first plea. The Rule 33(4) also does not mention the admission as formulated in paragraph 3.2 on page 23 of the record. It does not appear that the plaintiff filed papers opposing the application but it seems the matter was argued. In his judgement stated:

“2.6. Fact of the matter is that the whole matter was conducted on the basis that whether or not the SAPS fired shots at the FNB, and it was in dispute throughout the trial;

2.7 Having conducted the matter in this manner the plaintiff clearly did so knowing that the firing of shots at FNB by the SAPS was in dispute;

2.8 This is further enhanced by the agreement in terms of Rule 33(4) as per paragraph 1.2 above (that shots were fired on the said date, following an armed robbery at the FNB branch at or near where the plaintiff was standing)(my emphasis)

2.9 I cannot but agree with the argument of Ms Kriel that any other interpretation would render the whole trial over days senseless.

2.10......the amendment sought by the defendant is allowed”

[17] At paragraph 7.3 of the judgment the following is stated:

“ AD: the amendment

Although the amendment was allowed, it still remains a question why it was never attended to by the defendant”

This is clearly inconsistent with the trial court’s conclusion in granting the amendment, as fully set out above.

[18] Where there are mutually destructive versions, in order to discharge his onus, the plaintiff must satisfy the court that his version, when tested against the inherent probabilities and indisputable facts and the credibility of all the witnesses, was more credible and probable as opposed to the version of the defendants, which must be proved to be false or stand to be rejected. If the probabilities were evenly balanced he would succeed only if the court was satisfied that his version was true and that of the defendant’s false; National Employers’ General Insurance v Jagers 1984 (4) 437 at 440 D-G.

[19] When the police officers received the first message of the two suspicious looking vehicles entering the premises of the bank they had no idea as to what was taking place. Before their vehicle stopped on Main road, information had already filtered through via radio that a bank robbery was in progress at FNB. Swart testified that he had the strobe lights on and did not switch on the siren because this may have alerted the robbers of the presence of the police and at the time they had

no back up. Shai could not tell if the strobe lights were on because he was not the driver of the vehicle but he corroborated Swart regarding the siren. It is probable that the Maxima and BMW were parked with occupants inside to facilitate a quick get-away. Swart witnessed heavily armed men exiting the bank as soon as he alighted from the vehicle. From where the plaintiff was sitting or standing on the side walk of the Inn, he could not have been in a position to see how the vehicles of the robbers were parked or how the heavily armed men exited the bank. He did not dispute this aspect of Swart’s evidence.

[20] It is probable that the shooting by the robbers was prompted when they saw a vehicle parked almost blocking their exit from the bank’s premises. The plaintiff testified that both police officers went to the left of the vehicle which was on the side of the Inn, confirming the testimony of the police officers. The only difference being that the plaintiff did not state where exactly they were positioned, save to deny that it was behind the front left or back left wheel. Swart testified that they did not fire on the robbers because they were out- numbered and, that their 9mm could not match the heavy calibre automatic rifles used by the robbers.

[21] In my view what impacted on the credibility of the plaintiff was that he was evasive when crucial questions were put to him. The observation by the court that plaintiff was evasive was correctly made. The plaintiff was questioned on his statement to the police made a few days after the incident, where he mentioned that three vehicles were shooting at one another and his response was that he did not know how that version got into his statement. He was asked to give a description of the clothing the police were wearing and their nationality. He could not recall anything because as he stated, he was in shock and had sustained an injury. He testified that when he saw the police vehicle stop he stood up and went towards them in order to have a better view of what was happening. In this instance he should have at least been able to remember whether they were dressed in police uniform or not and their nationality. He should have been in a better position to testify about what he saw inside the premises of the bank. If he could not recall these aspects at all, the probability is there that he did not properly witness the events as they unfolded.

[22] Finally, in my view, the court should have exercised caution in accepting the uncorroborated evidence of the plaintiff. The trial court’s conclusions that there were discrepancies in the evidence of the plaintiff regarding (a) the presence of spent cartridges on the tarmac (b) whether the siren was on and (c) the moment when shots were fired, were correct and should have led to the inescapable conclusion that the plaintiff had failed to prove his case on a balance of probabilities. The appeal has to succeed in the circumstances.

[24] In the circumstances the following order is given.

1. The appeal is upheld. The order of the trial court is set aside and the following is substituted for it:

(a) The plaintiff’s claim is dismissed with costs.

TLHAPI V V

(JUDGE OF THE HIGH COURT)

MATTER HEARD ON 05 JUNE 2013

JUDGMENT RESERVED ON 05 JUNE 2013

ATTORNEYS FOR THE APPELLANT THE STATE ATTORNEYS

ATTORNEYS FOR THE RESPONDENT RoNTGEN & RoNTGEN

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