Ndhlovu v Minister of Police and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Roelofse AJ
• Judgment Date: 22 February 2023
• Citation: 2023 JDR 0530 (MN)
• Docket Number: 3389/2019
• Hearing Date: 28 November 2022
• Court: Mpumalanga Division (Main Seat)

Roelofse AJ:

INTRODUCTION:

[1]

The plaintiff has instituted an action against the defendant for damages arising from an alleged unlawful arrest and assault by the police. The plaintiff's case is that the police unlawfully shot and unlawfully detained him thereafter. The claim for the unlawful arrest was settled. I only have to decide on the claim founded upon the assault but not the damages if proven. The parties agreed to separate "merits" from "quantum".

[2]

By the time the trial reached this court, I had to decide only one question. The question I had to answer is whether members of the South African Police Services had shot the plaintiff. The defendant denied that the police had shot the plaintiff. As will fully appear in this judgment, I have to choose between two opposing versions on who, most probably, the shooter was that shot the plaintiff.

THE EVIDENCE:

2023 JDR 0530 p3

Roelofse AJ

[3]

The plaintiff and his former girlfriend, Me. Nombiso Sibuyi (Me. Sibuyi) testified in the plaintiff's case. The defendant led the evidence of three police offocers.

Evidence for the plaintiff

The plaintiff

[4]

The plaintiff testified that he visited Me. Sibuyi on 6 April 2018. He went to her residence in the afternoon because he wanted to pay his child that he had with her a visit. After the plaintiff saw his child, he remained at Me. Sibuyi's residence. Around 17:00 a friend, Mr. Khoza (who has since passed) arrived at Me. Sibuyi's residence. The plaintiff, Me. Sibuyi and Mr. Khoza were seated on a cement slab to the left side of her dwelling. Opposite them there was a small out building that was previously used as a shop.

[5]

The cement slab was situated close the to the kitchen of the dwelling. At approximately 19h00, two people dressed in civilian clothes approached them from behind. The plaintive heard the persons'footsteps behind him on the cement slab. He looked behind him and saw the people pulling out their firearms and loading them. The persons shouted "hey" as both of them pulled out their fire-arms. The plaintiff thought that the people were there to mug them. The plaintiff did not identify the two people as police officers. The plaintiff and Mr. Khoza started running away. The plaintiff ran for approximately 5 metres before he fell down because he was shot.

2023 JDR 0530 p4

Roelofse AJ

[6]

The plaintiff testified that he had heard a number of shots besides the initial shot that came from behind him as he ran away. Shots were also fired from the front of the plaintiff. The plaintiff testified that he was shot from the front. He was shot in his elbow. The plaintiff testified that Mr. Khoza also fell down. Mr. Khoza was bleeding from his head. Me. Sibuyi did not run away. She remained seated on the cement slab.

[7]

The plaintiff testified that he had no firearm in his possession on the day and that he also did not own a firearm. Mr. Khoza also did not have a firearm with him so also not Ms. Sibuyi.

[8]

The plaintiff testified that after he was shot, police officers in uniforms appeared on the scene. Some of the police officers came from the side of a tree. It seemed to the plaintiff that the entire property was surrounded. The two persons in civilian clothes searched the plaintiff for a firearm.

[9]

The plaintiff was taken to the Tonga hospital for treatment. He was transported to the hospital on the back of a bakkie. The plaintiff remained in hospital for 10 to 15 days. While in hospital, the plaintiff was cuffed to his bed from the Friday to the Monday and then the cuffs were removed.

[10]

According to the plaintiff, the police did not approach him or discuss anything with him after the incident. He was also not interviewed on what happened on the scene. He was never required to appear in court for any offences allegedly committed.

2023 JDR 0530 p5

Roelofse AJ

[11]

During cross examination, the plaintiff testified that he does not know which one of the two persons in plain clothes had shot him. Also under cross examination, when asked how he knew that he was shot from behind, the plaintiff testified it was because the people who appeared with the firearms from behind him. He only saw the people clearly when they searched him after he was shot. On a question about how he knew that they discharged firearms he testified it was because the sound came from behind as he was running away. However, the plaintiff conceded that he heard shots coming from the front and from behind.

[12]

Further during cross examination, it was put to the plaintiff that more than three people were seated on the cement slab. The plaintiff denied this statement. The plaintiff testified under cross examination that Sergeant Khoza identified themselves as police officers. It was put to the plaintiff under cross examination that the police took cover when the shots were fired. This the plaintiff denied. The plaintiff testified that the police did not take cover – they only came to search him. It was put to the plaintiff that the people who fired the shots ran all over and escaped. The plaintiff denied this and said it was only the three of them who were present.

[13]

It was put to the plaintiff that Sergeant Khoza will testify that he fired one shot to the side of the...