Mdletshe v Minister of Safety and Security

• Judge: Prinsloo J
• Judgment Date: 05 February 2009
• Citation: 2009 JDR 0068 (T)
• Docket Number: 21464/2006
• Hearing Date: 05 February 2009
• Court: Transvaal Provincial Division

Prinsloo J:

[1]

The plaintiff claims damages from the defendant based on alleged unlawful actions by police officers acting within the course and scope of their employment with the defendant.

[2]

In the trial which came before me, Mr Smit appeared for the plaintiff, and Ms Moloisane for the defendant.

Introduction

2009 JDR 0068 p2

Prinsloo J

[3]

Two claims are formulated in the summons:

Claim A flows from an incident on 4 September 2005 when police officers allegedly "unlawfully assaulted the plaintiff by shooting him four times". In the particulars of claim reference is made to two gunshot wounds to the stomach, one gunshot wound to the upper left leg and one gunshot wound to the right foot. The plaintiff claims an amount of R1 395 329,88 as damages occasioned by the sequelae of these injuries. The damages include alleged loss of income.

Claim B is for payment of an amount of R500 000,00 based on the alleged unlawful arrest without a warrant of the plaintiff by police officers following the same incident of 4 September 2005. There is also an allegation that the plaintiff was unlawfully detained in police custody for a period of two weeks.

[4]

It is common cause that the plaintiff complied with the formalities prescribed by section 2 of Act 40 of 2002 by giving proper notice before instituting action.

[5]

At the commencement of the proceedings, both parties, jointly, applied for an order in terms of Rule 33(4) in terms of which the question of quantum was separated for later adjudication.

[6]

As to claim A, the defendant pleads as follows:

2009 JDR 0068 p3

Prinsloo J

"Save to state that the plaintiff sustained gunshot wounds caused by shots discharged from the service firearm of the member of the South African Police Service ('SAPS'), the remainder of the allegations herein contained is denied, and the plaintiff is put to the proof thereof. The defendant further avers the following:

3.1

the plaintiff was one of the persons alleged to have attempted to rob Mr Ngwako Daniel Kgwale of his minibus;

3.2

Captain M Motileng and other members of the SAPS fired warning shots in an attempt to prevent the plaintiff and the persons aforesaid from fleeing from the alleged scene of crime;

3.3

the plaintiff threatened to shoot the members of the SAPS;

3.4

the plaintiff attacked Inspector J J Botha and wrestled with him, causing a shot to be discharged;

3.5

in the premises the force used was reasonable, necessary and justified."

[7]

As to claim B, the defendant, in his plea, admits that the plaintiff was arrested without a warrant on 4 September 2005 by police officers acting within the course and scope of their employment, and further pleads as follows:

2009 JDR 0068 p4

Prinsloo J

"14.1

The plaintiff and other persons were alleged to have committed an offence of robbery of an undisclosed amount of money and attempted robbery of a minibus;

14.2

Inspector J J Botha and other members of the SAPS, being peace- officers as defined in the Criminal Procedure Act, 51 of 1977 ('the CPA'), arrested the plaintiff in terms of section 40(1)(b) of the CPA;

14.3

when Inspector J J Botha and other members of the SAPS acted as aforesaid, they had a bona fide belief on reasonable grounds that the plaintiff and the other persons had committed the crime of robbery and attempted robbery as set out in Schedule 1 of the CPA;

14.4

in the premises, the arrest of the plaintiff was justified in terms of the provisions of section 40(1)(b) of the CPA."

[8]

As to the alleged unlawful detention, the defendant pleads that the plaintiff was admitted to Kalafong hospital for medical treatment, and that he was not detained as alleged.

2009 JDR 0068 p5

Prinsloo J

[9]

It is common cause that the plaintiff was released on bail shortly after he was discharged from hospital. The criminal charges against the plaintiff and his co-accused were later withdrawn.

The evidence

[10]

The only witness who testified on behalf of the plaintiff was himself.

[11]

According to the plaintiff he lives in Alexandra township near Johannesburg with his wife and some children.

[12]

His wife also has other children living with family in the Brits district at a place called Jericho.

[13]

On the evening of 3 September 2005 the plaintiff drove alone in his white Mazda to visit the children in Jericho and give them some money. When he got there it was already fairly late and he did not stay for any length of time.

[14]

What the plaintiff did do, however, was to accept a suggestion by another family member, one May Mpepo, to go to a "stokvel" near Jericho. He said he "wanted to drink a bit".

[15]

The plaintiff and May got to the stokvel at about 22:00 and set about drinking. They left the stokvel rather late, at about 01:00. He wanted to get home in

2009 JDR 0068 p6

Prinsloo J

Alexandra because he, himself, had organised a stokvel for the next day. In Alexandra he runs a restaurant and tavern and, significantly, also a taxi service.

[16]

The plaintiff testified that May would do the driving because he, the plaintiff, was not in a position to drive. At a certain point he directed May to follow a taxi which he thought was heading in the general direction of Pretoria. In the back seat one Kile was another passenger in the car. He was evidently a friend of May.

[17]

The plaintiff dozed off, but at a certain point May woke him up pointing out that the taxi driver was trying to block the road. According to the plaintiff he saw the taxi swerving from left to right preventing May from overtaking. Under cross-examination the plaintiff could not give a satisfactory explanation as to why May wanted to overtake the taxi if the very idea was for May to follow the taxi for guidance as to how to get to Pretoria.

Nevertheless, they managed to overtake the taxi whereafter the plaintiff directed May to stop in front of the taxi so that he could "argue" with the taxi driver. The latter made a U-turn and headed back to Brits.

[18]

Later, on their way to Pretoria, May was directed to stop so that the plaintiff could attend to his biological needs next to the road. While this was in progress, the same taxi came from behind and passed the stationary vehicle of the plaintiff, again heading for Pretoria. 0n the plaintiff's instructions, they followed the taxi

2009 JDR 0068 p7

Prinsloo J

and when the latter turned into a Caltex garage in Van der Hoff Road on the outskirts of Pretoria, the plaintiff directed May to follow the taxi. At the garage premises he found the taxi parked but there was no driver in sight. On the plaintiff's own version he was keen to get hold of the taxi driver to find out why he misbehaved earlier on when they were trying to overtake him. On the plaintiff's own version he was the aggressor and the taxi driver did everything possible to avoid him. On his own version he also shouted abuse on the garage premises. He says he was actively searching for the taxi driver and he started shouting and screaming.

[19]

At a passage way between the garage premises and another building he was shouting words like "shit" and suddenly people shouted back calling for help because they were being hi-jacked. He decided to go back to the car. He heard people running and he heard shooting. He ran to his car and got into the driver's seat after telling May to move over. He says he got shot in the right side, fell into the car, tried to push the car into gear, and fell into the passenger seat...