Minister of Law and Order v Monti

• Jurisdiction: South Africa
• Judge: Joubert JA, Van Heerden JA, E M Grosskopf JA, Vivier JA, Van den Heever JA
• Judgment Date: 29 September 1994
• Docket Number: 595/92
• Court: Appellate Division
• Hearing Date: 25 August 1994
• Citation: 1995 (1) SA 35 (A)

Vivier JA:

The respondent ('the plaintiff') instituted a delictual action for damages against the appellant ('the defendant') in the Eastern Cape Division for alleged wrongful assault, arrest and detention by a member or members of the South African Police, acting within the course and scope of I his or their employment with the defendant. The claim in respect of the wrongful arrest and detention was withdrawn before the close of pleadings and nothing further need be said about it. In support of the claim for wrongful assault the plaintiff alleged in the pleadings that at approximately 10 o'clock on the morning of 10 November 1984, and 'in and J in the vicinity' of a beer hall in Wood Street, Grahamstown, one or more

Vivier JA

A policeman had taken hold of his clothing and forced him into the partially burnt-down beer hall after which he was shot in the back by a policeman firing a shotgun. He was thereafter slapped in the face by another policeman who also poured the contents of a wine bottle over his face.

In his plea the defendant admitted that the plaintiff was shot by a B policeman acting within the course of scope of his employment as such. It was further stated that the shooting took place at approximately 11 o'clock on the morning in question 'in the vicinity' of the said beer hall. The defendant went on to plead that the shooting was justified in the particular circumstances of the case, viz that the plaintiff was among a group of approximately 20 persons who broke into and stole goods from the beer hall and threw stones at policemen guarding the hall who feared C for their lives. The policeman shooting the plaintiff did so in order to maintain law and order, protect life and property and to identify and arrest the culprits who had committed the said offences. The other allegations of assault were denied.

Before the trial commenced before Van Rensburg J it was ordered in terms D of Rule 33(4) that the merits be decided separately from the quantum of damages, and the trial thereafter proceeded on the merits of the plaintiff's claim. In his judgment on this issue Van Rensburg J, relying on the decision of this Court in Mabaso v Felix 1981 (3) SA 865 (A) at 874A-B, held that on the form of the pleadings the onus rested on the E defendant to prove that the shooting was justified. The learned Judge further held that no reliance could be placed on either party's version of the events...