Ntsomi v Minister of Law and Order

• Jurisdiction: South Africa
• Citation: 1990 (1) SA 512 (C)

Ntsomi v Minister of Law and Order
1990 (1) SA 512 (C)

1990 (1) SA p512

Citation	1990 (1) SA 512 (C)
Court	Cape Provincial Division
Judge	Van Deventer AJ
Heard	August 1, 1989; August 2, 1989; August 3, 1989; August 4, 1989; August 8, 1989; August 9, 1989; August 10, 1989
Judgment	August 15, 1989

Flynote : Sleutelwoorde

Evidence — Onus of proof — When discharged — Failure to call a G witness — Unfavourable inference should not be drawn where probability appears that such witness' evidence would merely serve to corroborate other evidence on record — Party who leads evidence first the sole judge of sufficiency of evidence to be adduced in order to require H rebuttal of his case — Cannot be faulted for not calling all available witnesses for the purposes of corroboration.

Delict — Assault — Defences — Self-defence — Requirements of restated — As to means of defence being commensurate with danger threatened, court to apply an objective test ex post facto — Where I policeman attacked during the performance of his duty, the criterion of a reasonable policeman compelled to act in the same circumstances should be applied — Policeman attempting to effect a lawful arrest not obliged to flee from an unlawful assault — Victim of unlawful assault entitled to defend himself with whatever weapon he has at hand if he has no J reasonable alternative.

1990 (1) SA p513

Headnote : Kopnota

It is generally A true that if a party fails to place the evidence of a witness who is available and able to elucidate the facts before a trial court, such failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. The effect to be given to the failure of that party to call an available witness depends on the particular circumstances of each case. An unfavourable inference should not be drawn from the party's failure to call a witness in a civil case where the probability appears from the witness' statements, transcripts of evidence given in other proceedings or any other B evidentiary material properly before the court that such witness' evidence if adduced would have served merely to corroborate other evidence on record. The party who leads evidence first is the sole judge of the sufficiency of evidence to be adduced in order to require rebuttal of his case and he cannot be faulted for not calling all available witnesses for the purposes of corroboration.

In terms of the authorities the requirements to be satisfied before a C plea of self-defence to a delictual claim for damages for assault will be upheld may be summarised as follows:

(1)

There must have been an unlawful attack or threatened attack and the victim must have had reasonable grounds for believing that he was in physical danger.

(2)

The means of defence must have been commensurate with the danger D and dangerous means of defence must not have been adopted when the threatened injury could have been avoided in some other reasonable way.

In regard to the second requirement above the following conclusions can be drawn:

(a)

In judging the equilibrium of force between counterattack in self-defence and assault, the court should apply an objective test ex post facto but avoid an armchair perspective. In a case where a policeman was attacked during the performance of his duty, the criterion of a reasonable policeman compelled E to act in the same circumstances should be applied.

(b)

Our law does not ever oblige a policeman who attempts or intends to effect a lawful arrest to flee from an unlawful assault (committed by the person he seeks to arrest), for flight in such circumstances would amount to dereliction of duty.

(c)

The victim of an unlawful assault is entitled to defend himself with whatever weapon he happens to have at hand if he F has no reasonable alternative. Thus, if an offender attacks a policeman who has a dangerous weapon such as a shotgun in his hands, he has only himself to blame if the gun is used in self-defence.

Case Information

Civil trial in an action for damages. The facts appear from the G reasons for judgment.

J G Dickerson for the plaintiff.

J L U van der Hoven for the defendant.

Cur adv vult. H

Postea (August 15).

Judgment

Van Deventer AJ:

In this action the plaintiff claims damages from the defendant in consequence of bodily injury suffered by the plaintiff on 12 October 1985 when he was shot and wounded in the right knee by a I policeman, Sergeant G D van der Merwe, in Zweletemba Township, Worcester, Cape. As a result of the injury the plaintiff had to undergo an amputation of his right leg above the knee. In consequence of the loss of his leg he wears an above-knee prosthesis.

The quantum of the plaintiff's claim and the details thereof and of his injuries are not relevant for the purposes of this judgment as the J Court was

1990 (1) SA p514

Van Deventer AJ

A requested by both parties' counsel at the commencement of the trial in terms of Rule 33(4) to separate the issues of liability and the quantum of damages and to hear the merits and determine the issue of defendant's liability first.

As good and sufficient grounds were in my view advanced by counsel for this application, I made an order in terms of Rule 33(4) to the effect B that this Court would try and determine the issue of the defendant's liability only, and that all other proceedings would be stayed until this issue would have been disposed of.

By agreement between the parties certain exhibits were handed in, which I need not set out here. Some photographs were also handed in by C both parties of the corrugated iron building at the back of the house on stand 396 and of the actual locality of the shooting incident. These photographs were referred to frequently during the trial and were of great assistance to the Court. A plan marked RSC 4 is a scale plan of the buildings on stand No 396 Theoha Avenue and must be read with para 6 D of the pre-trial minute.

A transcript of all the evidence led in February 1986 in the magistrate's court trial of the plaintiff, on two charges of public violence, alternatively damage to property and assault with intent, was also handed in. The basis on which this transcript was handed in is set out in para 8.1 of the pre-trial minute, ie that the truth and factual E correctness of evidence adduced in that trial was not being admitted. In reply to a query from the Bench I was informed by counsel for both parties that the transcript was being handed in as a correct transcript of all the evidence given in the magistrate's court and for no other purpose. In other words, any witness in this trial could be cross-examined with reference to any evidence that he might have given F in the magistrate's court.

The unfortunate shooting incident referred to above occurred in Zweletemba, a Black residential township in Worcester, Cape Province, on 12 October 1985, ie within a few months after civil disorder and unrest had broken out in various Black residential areas and a state of G emergency had been proclaimed by the State President on 21 July 1985 within a number of magisterial districts in all four provinces which, however, did not include Worcester.

Early on the evening of 12 October 1985 the residence of a Black family in Zweletemba was petrol-bombed and set alight. A Kombi vehicle H which was standing near the house was also set on fire. Unrest and stone-throwing by a group or groups of Black males also occurred before the police arrived in the township later the same evening. These incidents preceded the wounding of the plaintiff later that evening. The burning house and Kombi were in the vicinity of erf 406, Theoha Avenue, which is shown on exh RSC 3.

I The following facts were common cause ab initio or became common cause during the trial:

(a)

The plaintiff was a standard 9 pupil in the local Black school at the time and he was 21 years old.

(b)

The plaintiff resided in a house in Sneli Avenue, approximately J in the middle of the block marked on RSC 2 as 'Sneli'.

1990 (1) SA p515

Van Deventer AJ

(c)

A Shortly after Captain Van Huyssteen and Sergeant Van der Merwe in one vehicle and other policemen in other vehicles had arrived on the scene of the unrest, Sergeant Van der Merwe, Constable Luff and Sergeant Brink were ordered by Captain Van Huyssteen to patrol the stands bordering Theoha Avenue on foot, with orders to arrest stone-throwers if possible.

(d)

B When the foot-patrol left, Sergeant Van der Merwe was armed only with a 9 mm pistol (presumably carried in a holster around his middle) and a shotgun (fitted with a cylindrical magazine like a second barrel underneath the main barrel) which he carried in his hands. Sergeant Van der Merwe was issued with both birdshot C and SSG ammunition but he, on his own initiative, loaded his shotgun only with SSG cartridges when he went on this patrol.

(e)

SSG shot would generally be more dangerous when fired at people than birdshot, as the pellets of SSG cartridges are heavier and bigger than the pellet load of birdshot cartridges.

(f)

D The shooting incident occurred at approximately 22h00 to 23h00 in the backyard of No 396, Theoha Avenue.

(g)

The exact place where it occurred is in dispute. The alley in which it took place, according to Sergeant Van der Merwe's evidence, was behind house No 396 Theoha Avenue and was between the back wall of a corrugated iron building and a fence. It was only 60 centimetres wide. This alley was between the fence with E a creeper on it and the foundation which can be seen on RSC 6(3). The wall that existed when the incident occurred was demolished before the photograph was taken.

(h)

There was no moonlight that evening. It was not clear whether there were any street lights burning in the vicinity of...