Mabaso v Felix

• Jurisdiction: South Africa
• Judge: Wessels JA, Diemont JA, Trollip AJA
• Judgment Date: 08 May 1981
• Hearing Date: 16 March 1981
• Court: Appellate Division

Wessels JA, Diemont JA and Trollip AJA:

This appeal arises out of a H shooting incident which took place in Johannesburg almost four years ago. The appellant, Daniel Mabaso, was a petrol attendant at a garage in Hillbrow. Across the street from the garage was a business, Parktown Fish and Chips, which was conducted by Manuel da Silva Felix, the respondent on appeal. We shall refer to Mabaso as the plaintiff and to Felix as the defendant.

The plaintiff sued the defendant for damages in the sum of R7 803, 83 in the Witwatersrand Local Division alleging in the particulars of claim that:

Wessels JA et Al

"3.

On 30 June 1977 at approximately 6 pm in Hillbrow, Johannesburg, the defendant assaulted the plaintiff by firing two shots at him with a firearm, both of which shots struck the plaintiff, one in A the plaintiff's right leg, and one in the plaintiff's left leg.

4.

By reason of the aforesaid assault, the plaintiff sustained bodily injuries to both legs."

In answer to a request for further particulars plaintiff stated that the assault took place "on the northern pavement of Caroline Street, B immediately outside the café, Parktown Fish and Chips", and that, in firing both shots, the defendant "acted intentionally, alternatively negligently". Particulars of the alleged negligence were given but are no longer relevant to these proceedings. Plaintiff stated further that:

"Insofar as the plaintiff relies upon an intentional shooting, it is C alleged that the defendant intended one or other or both of the said shots to strike the plaintiff."

Plaintiff was also called on to state what facts gave rise to the firing of the shots, and in particular to state whether it was alleged that defendant

"4. (d) (i)

acted maliciously; or

(ii)

acted in self-defence or defence of property but D exceeded the bounds of such self-defence?"

This request elicited the following reply:

"The particulars sought in para 2 (d) of the request do not arise from any allegation made by the plaintiff and/or are not reasonably required in order to enable the defendant to plead."

E Defendant denied liability.

In the plea filed it was alleged in answer to para 3 of the summons that:

"3 (a)

Defendant admits the date, time and place of the incident.

(b)

Defendant admits that he fired two shots in the direction of F plaintiff's legs, and that the shots struck the plaintiff.

(c)

At the time and place alleged, and immediately prior to the firing of the two shots, the plaintiff, together with several other men who are unknown to the defendant, threatened to kill the defendant and the defendant's family.

(d)

G At the time the defendant fired the two shots the plaintiff was advancing towards the defendant in order to kill the defendant or to cause the defendant grivous bodily harm; alternatively, the plaintiff was acting in such a manner as to induce the defendant to believe that the plaintiff was about to kill the defendant or to cause him grievous bodily harm.

(e)

H In firing the two shots the defendant used such force upon plaintiff as was reasonably necessary to defend himself and to prevent the plaintiff from killing or injuring the defendant or the defendant's family."

In answer to para 4 of the summons it was alleged that:

"4.

Save for admitting that the plaintiff sustained injuries to both legs, the defendant has no knowledge of the further allegations contained in this paragraph and the plaintiff is put to the proof thereof."

Wessels JA et Al

In reply to a request for particulars as to the nature of the threat referred to in the plea defendant stated that:

"1 (a)

A The plaintiff and the said other men, whose identities are to A the defendant unknown, uttered words to the effect that they would kill the defendant and his family.

(b)

At the time of the aforementioned oral threats, the plaintiff and the said other men were attempting unlawfully to enter the premises of the defendant."

It was further stated that:

"2 (a)

B Plaintiff continued advancing towards defendant, and ignored requests to stop. Plaintiff adopted an aggressive attitude towards the defendant."

Defendant was also called on to admit or deny that he fired the shots intentionally and/or negligently. The reply given was:

"3 (a)

C Defendant admits he fired the shots intentionally and states that he acted reasonably and justifiably in so doing.

(b)

Defendant denies that in firing the shots he was negligent in the respects alleged or at all."

Plaintiff did not replicate. So the abovementioned allegations by D defendant must be taken to have been denied and issue joined by plaintiff on those issues (Rule 24 of the Uniform Rules of Court).

The compass of the dispute was thus reduced by the elimination of all considerations of negligence; it was further reduced at a pre-trial conference when the quantum of damages was fixed in the sum of R4 500. Accordingly the sole issue which the Court a quo was called upon to E determine was whether or not defendant had justifiably shot plaintiff self-defence.

Initial consideration must be given to the approach which was adopted by the learned trial Judge. After setting out shortly the conflicting F versions given by the two parties he stated that, as all the witnesses to the incident had given evidence through an interpreter, it was more difficult than usual to make any positive findings with regard to their demeanour. He went on to say:

"In the present case it seems to be far safer and more reliable to determine the facts on the probabilities paying due regard to the onus of proof. That onus, ie of proving that the shooting was wrongful, remained G throughout on the plaintiff: Hiltonian Society v Crofton 1952 (3) SA 130 (A) at 134; Wessels v Pretorius NO en 'n Ander 1974 (3) SA 299 (NC) at 301 - 2. Thus at the end of the evidence the question which has to be answered is whether the plaintiff established, on a balance of probabilities, that the defendant in shooting the plaintiff acted wrongfully."

The question of onus in a civil case in which the defendant relies on self-defence has been the subject of a number of conflicting Court H decisions. (By "onus " here is meant the "overall onus of proof" which, according to substantive or adjective law, rests from the beginning of the proceedings upon the one or the other of the parties to the litigation and never shifts - see South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 547H - 548C.) Among the decisions referred to in argument in which it was held that the onus of negativing self-defence rested on the plaintiff were: Wessels v Pretorius NO en 'n Ander 1974 (3) SA 299 (NC) at 301;

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Brown v Hoffman 1977 (2) SA 556 (NC); and Sizani v Minister of Police and Another 1980 (3) SA 1205 (SE) at 1207. On the other hand in Ntanjana v A Vorster and Minister of Justice 1950 (4) SA 398 (C) at 404, 405; Mordt v Smith 1968 (4) SA 750 (RA) at 751; and Sayed v Potgieter 1979 (3) SA 354 (N) at 355 it was held that in an action for damages for assault the onus of proof with regard to a plea of self-defence lay...