Tshabalala v Lekoa City Council

• Jurisdiction: South Africa
• Judge: Hoexter JA, E M Grosskopf JA, Smalberger JA, F H Grosskopf JA, Goldstone JA
• Judgment Date: 30 March 1992
• Citation: 1992 (3) SA 21 (A)
• Hearing Date: 17 March 1992
• Court: Appellate Division

E M Grosskopf JA:

The appellant sued the respondent, a local authority, G for damages in the sum of R1 518 032,80 arising from personal injuries suffered in a shooting incident. In his particulars of claim the appellant alleged that, on or about 20 December 1986, and at or near a shebeen in the township of Residensia, he had been unlawfully shot in the back by one Leonard Oupa Kgabane. It was further alleged that Kgabane had acted H intentionally or, alternatively, negligently in shooting the appellant, and that Kgabane had at the time been acting in the course and scope of his employment as an employee of the respondent.

It is not necessary to refer to the respondent's plea, since prior to trial the matters in dispute were narrowed down substantially. In a pre-trial conference the respondent admitted that Kgabane was a constable I in its employ at the relevant date. Later, but still prior to trial, the respondent admitted that it was Kgabane who had shot the appellant, that he had done so with his service weapon which had been issued to him by, or on behalf of, the respondent, and that he had acted unlawfully in doing so. By implication it was also common cause that he had acted either intentionally or negligently, because the parties agreed that the only J issue remaining,

E M Grosskopf JA

A save for the determination of the quantum of damages, was whether the respondent was liable for the delict committed by Kgabane. The parties also agreed that this issue should be tried first, and the Court (Flemming J) ordered accordingly in terms of Rule of Court 33(4).

After hearing evidence and argument, the Court a quo found that the B appellant had not proved that Kgabane had acted in the course or scope of his employment when he shot the appellant, and ordered absolution from the instance. Against this order the appellant now appeals with leave of the Court a quo.

The evidence as to what happened on the night in question is very confused. Two witnesses testified in this regard: the appellant himself C and one Mokhele, both called on behalf of the appellant. No evidence on this aspect was adduced by the respondent. Kgabane had died before the trial. For reasons of chronology I deal first with Mokhele's evidence. It may be summarised as follows.

Mokhele is a 31-year-old man. On the night in question he went to Ma D Tshabalala's shebeen in Residensia at about 7.30 pm. After spending some time there he became, apparently, somewhat boisterous, and was told to leave the shebeen. He went to the outside toilet, intending afterwards to fetch his friends and leave. When turning around, however, he saw Kgabane and a friend. This friend accused Mokhele of bad behaviour against him, E and slapped his face. Mokhele slapped him in return, and decided to leave immediately. However, Kgabane and his friend followed him. Kgabane was saying that he was going to arrest Mokhele. While they were walking, Kgabane's friend pushed Mokhele from behind. Mokhele turned round, and a fist-fight ensued. As Mokhele was gaining the upper hand, Kgabane fired a F shot in the air, and again threatened to arrest Mokhele. Mokhele ran away. After running about 70 metres he heard a second shot.

Under cross-examination Mokhele said that Kgabane was in civilian dress. Mokhele saw the appellant at the shebeen that night, but did not go there with him.

I turn now to the appellant's version. He is a 30-year-old man who was G unemployed at the time. On the night in question he went to the shebeen with Mokhele. They stayed there from 10 pm until 4 am, when he told Mokhele they should leave. However, Mokhele went out on his own, and after a while the appellant decided to go home. As he went outside, he saw three people next to the toilet. They seemed to be fighting. One of them ran H away through the trees, and the other two followed the appellant. The appellant slowed down, and one of the men reached him. The man took out an axe, and the appellant started running away. However, the man tripped him, and he fell. His assailant also fell down, and the appellant managed to wrest the axe from him. The appellant ran away, but after a short distance I was shot in the back. He fell down. The person who had shot him (it is common cause that this was Kgabane) came to him with a firearm in his hand. Kgabane said that he would kill the appellant, and that he was going to detain him. The appellant asked what he had done, and Kgabane told him to keep quiet.

Later two uniformed municipal policemen arrived on the scene in a van. J They asked Kgabane what had happened. He replied that the appellant

E M Grosskopf JA

A was making himself 'as a person who is clever'. He also said that the appellant was armed with an axe and wanted to rob some people. The uniformed municipal policemen took the appellant to hospital. He laid no charges against Kgabane, and no charge was preferred against him.

The appellant was cross-examined at some length, mainly in regard to conflicts between his evidence and an affidavit made by him previously. He B did, however, also add one further fact to his evidence-in-chief - he said that, after he had seen the people fighting next to the toilet, he walked away and then heard a shot. He turned around and saw that two of the men were in the same street as he was while the third was running away through the trees.

C On behalf of the appellant a third witness was called, one Nienaber, who had been employed by the respondent in its municipal police force at the time. He identified the occurrence book of the Residensia municipal police station, where Kgabane was employed at the time. The occurrence book contains the following entry under the date 21 December 1986 and time 04:40:

D 'Skiet voorval: Konstabel L Khabane 1096/2226 rapporteer 'n skietvoorval. Hy kla dat hy het die persoon doodgeskiet. Daar was klomp manne wat 'n swart man met 'n byl aangerand. Toe konstabel Khabane by die hoek kom, het hy dit gesien en twee (2) skoot was getref en een van die manne het geval.'

E A further entry concerning this incident appears under the same date against the time 06:00. It reads as follows:

'Besoek: Luitenant Slabbert het die stasie besoek en hy het by die toneel waar die skiet voorval van Kst Leonard Khabane plaasgevind het ook gegaan. Die swart man wat Kst Khabane geskiet was kla (sic) by die hospitaal geneem. Die besonderheid van daardie swart man is Abel Tshabalala, 26 jaar oud, woonagtig te 2180 Residensia. Die pistool se nommer is L...