Blos v Minister of Police (114/2019) [2023] ZANWHC 126 (20 July 2023)

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: 114/2019

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

KABELO

VICTOR BLOS

Plaintiff

and

MINISTER

OF POLICE

Defendant

Delivered: This judgment was handed down electronically by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be 15h30PM on 20 July 2023.

ORDER

In the result, the following order is made:

(i) The defendant is liable for the assault on the plaintiff perpetrated

on him by Colonel Selogilwe, a member of the South African Police Service (SAPS) when the said member shot and injured the plaintiff on 27 April 2018.

(ii) The defendant shall pay the plaintiff's costs in respect of the merits of the action.

JUDGMENT

PETERSEN J

Introduction

[1] The plaintiff instituted an action against the defendant for general and special damages arising from an assault perpetrated on him by a member of the South African Police Service (SAPS) when the said member shot and injured him on 27 April 2018.

[2] The action which is defended by the defendant proceeded on merits only. The issue of quantum was separated from the merits in terms of Rule 33(4) of the Uniform Rules of Court.

[3] The defendant adduced evidence of a single witness, Lieutenant Colonel Selogilwe ('Selogilwe') in defending the action. The plaintiff himself testified in support of his claim.

Issues of common cause

[4] It is common cause that on 27 April 2018 at approximately 12h00PM at Pudimoe in the North West Province, the plaintiff was assaulted by Selogilwe when he shot him at him with live ammunition which penetrated the right side of his chest causing him bodily injury. The fact that the defendant is vicariously liable for the actions of Selogilwe is further common cause.

Issues in dispute

[5] The lawfulness of the assault (the shooting), the justification for the assault (necessity and/or private defence), assumption of risk and damages is in dispute.

The pleadinqs

[6] To appreciate the evidence adduced by the defendant in particular, it is apposite to have regard to the pleadings and specifically

paragraph 2 of the defendant's plea. The defendant pleaded as follows:

"2.1 The Defendant pleads that on 27 April 2018 there was a riotous protest by a group of people near Uncle Joe's Bar and Lounge in Pudimoe who barricaded the road with burning tyres and rocks.

2.2 The Defendant pleads that on the said date Lieutenant Colonel Selogilwe went to the scene to investigate but came under attack from the said group of people who threw stones at him and the police vehicle that he was driving.

2.3 The Defendant pleads that the life of Lieutenant Colonel Selogilwe was in danger at the time and in an attempt to contain the situation, to protect himself and the state vehicle he was driving and to restore order in the area, he fired several warning shots into the air without any success.

2.4 The Defendant further pleads that as a result Lieutenant Colonel Selogilwe was forced to fire shots towards the direction of the crowd which was in the circumstances reasonable and commensurate with the crowd's aggression.

2.5 The defendant bears no knowledge of how the plaintiff sustained his injuries but pleads that the Defendant was possibly hit and injured by a bullet and will therefore deny that the shooting was unlawful in the circumstances as he was acting in a situation of necessity and or private defence.

2.6 Alternatively to the above.

2.6.1 The Defendant pleads that the Plaintiff had voluntarily assumed the risk of being injured when making common cause with members of the public who unlawfully threatened and/or assaulted Lieutenant Colonel Selogilwe by throwing stones and/or other dangerous objects at him and the motor vehicle he was driving. "

The onus of proof

[7] It is trite that the infringement of bodily integrity of another is prima facie unlawful.[1] l Whilst the burden of proof rests on the plaintiff to prove an infringement of bodily integrity, once such infringement is proven the onus shifts to the wrongdoer to prove some ground of justification. In Mabaso v Felix 1981 (3) SA 865 (A) 873E - 874E, the Appellate Division considered the principles applicable in delictual actions implicating the infringement of bodily integrity of a plaintiff where the defendant raises a ground of justification, such as self-defence, as follows:

"There is another reason why, at any rate in delicts affecting the plaintiff's personality and bodily integrity, the onus of proving excuse or justification, such as self-defence, should be placed on the defendant: usually the circumstances so excusing or justifying his wrongdoing are peculiarly within his own and not the plaintiff's knowledge. True, Wigmore rejects that consideration as a "universal working rule" for determining the incidence of the onus of proof (ibid), but that is no reason for its not being most apposite in the kind of delicts just mentioned. To put it another way, it would for that reason be fair and accord with experience and good common sense that in such delicts the defendant should ordinarily bear the onus of proving the excuse or justification. There is certainly no ground for adopting in such cases the rule prevailing in criminal law.

…

We also think that, if the excuse or justification pleaded is self-defence, the onus is generally on the defendant too to plead and prove that the force used by him in defending himself was in the circumstances reasonable and commensurate with the plaintiff's alleged aggression, again unless the pleadings place the onus on the plaintiff. In our opinion, however, this element is such an essential, integral part of the defence of excuse or justification that the defendant should in all fairness and common sense bear this onus too. After all, it would be peculiarly within his knowledge why he employed the degree of force in question. In any. event, as will presently emerge, the pleadings will usually impose this onus on him. '

(my emphasis)

[8] The onus to prove a justification for the assault accordingly falls on the defendant. In considering the plaintiff's claim, if his version is accepted, the enquiry turns to the reasonableness of Selogilwe's conduct and ultimately if the defendant should be held liable for such conduct.[2]

The evidence for the defendant Seloqilwe

[9] The evidence of Selogilwe may be succinctly summarised as follows. Selogilwe, a police officer with 30 years' service, testified that he is the station commander at Pudimoe Police Station. During the week of the incident of 27 April 2018, the community he serves as with most of the North West Province was affected by political protests which was dubbed the "Supra Must Fall" protest in reference to the Premier of the North West at the time. On his version, the protests in the community had died down and his officers were either out patrolling or returning recovered looted goods to the owners.

[10] Selogilwe remained at the station with a person he referred to as a scribe who was responsible for recording all incidents. He received a call about a crowd of protestors who were burning tyres near a place called the Kroll in Pudimoe. According to Selogilwe he had in the past in similar protest situations successfully negotiated with protestors who would disperse peacefully and believed he could do so on his own again. He proceeded to the Kroll to engage the protestors in an attempt to intervene in their dispute without any protective wear or combat clothing as it was referred which his station does not

carry.

[11] He did not find any protestors at the Kroll. He alighted from his state vehicle and walked in the direction where he noticed smoke bellowing. As he reached the source of the smoke, he encountered the protestors who singing. In a gesture of peace he raised his hands and tried to engage the protestors in dialogue. The protestors instead encircled him. He discharged three shots of live ammunition from his firearm in an attempt to disperse the crowd to no avail. The protestors instead continued advancing at him and pelted stones at him. He discharged more shots by firing them into the tarred road. The protestors, however, continued encircling him. At this point he realised he was in danger.

[12] He directed his attention to right side of the crowd, took aim at a protestor closest to him and fired a shot directly at him. On his evidence he intended shooting at the legs of the said person, but later learnt that he had struck the said person on the upper body. He had also fired a shot at another protestor. The protestors dispersed, he got back into the state vehicle and left the scene.

[13] Under cross examination Selogilwe maintained that he had engaged the community successfully during the week of protests and expected that he could achieve the same result on 27 April 2018. As a result he did not wear protective gear when proceeding to engage the crowd and his station did not have such gear in any event. Selogilwe conceded that he was aware of Standing Order 4 of the South African Police Service in respect of maintaining public order in protests and that he was aware of the fact that live ammunition was not to be utilised. He justified the use of live ammunition as having to defend himself.

[14] Selogilwe disputed the version of the plaintiff put to him, that he stated on the day in the presence of the protestors that he was looking for Sinkie and when he saw him in the crowd said that Sinkie would die that day. He readily conceded under cross examination though that he did know the plaintiff, that he had identified the plaintiff amongst the protestors, that he in fact shot the plaintiff and injured him. In examination in chief, Selogilwe however made no reference to the fact that he knew it was the plaintiff who he allegedly saw picking up stones and that it was the plaintiff he shot.

The evidence of the plaintiff

[15] The evidence of the plaintiff, in turn, may be succinctly summarised as follows. He works at the Kroll which operates as a butchery and carwash. His duty is specifically to attend to the preparation of a fire and to braai meat purchased by customers.

[16] On 27 April 2018, he proceeded to work on foot when he encountered a group of protestors burning tyres near the Kroll. His employer to avoid any vandalism at his business premises instructed the plaintiff and his fellow employees not to open the gate to the Kroll, to remain outside the gate and to wait for the protestors to pass by. As he stood outside the gate, Selogilwe whom he knew, arrived in a double cab police vehicle and stopped outside the Kroll. Selogilwe alighted from the vehicle wielding his firearm. The protestors pelted stones at Selogilwe and during this incident Sinkie emerged from the crowd.

When Sinkie emerged, Selogilwe shouted that he had been looking for Sinkie and that he would die that day. Selogilwe then shot at Sinkie and instructed the plaintiff to stop the protestors as he Selogilwe came to the Kroll and not for the protestors.

[17] The plaintiff immediately thereafter fell to the ground and the crowd surrounded him. He has no recollection of what transpired thereafter. He disputes participating in any protests and cannot proffer any reason why Selogilwe shot him.

The pleaded case of the defendant

[18] In respect of the defendant's pleaded cases and in particular paragraph 2.5 Adv Ntsamai relies on and referred this Court to Minister of safety and Security v Slabbert (668/2009) [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30 November 2009), as justification why the plea when juxtaposed against Selogilwe's evidence is not fatal to the defendant's case. The following paragraphs are of relevance:

"[11] The purpose of the pleadings is to define the issues for the other party and the court. A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. Footnote 2 (See particularly Moaki v Reckitt & Colman (Africa) Ltd and another 1968 (3) SA 98 (A) at 102A; Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107; Buchner and another v Johannesburg Consolidated Investment Co Ltd 1995 (1) SA 215 (T) at 216H-J; Jowell v Bramwell-Jones and others 1998 (1) SA 836 (W) at 902H.)

It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.

[12] There are, however, circumstances in which a party may be allowed to rely on an issue which was not covered by the pleadings. This occurs where the issue in question has been canvassed fully by both sides at the trial. In South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd 1976 (1) SA 708 (A) at 714G this court said:

'However, the absence of such an averment in the pleadings would not necessarily be fatal if the point was fully canvassed in evidence. This means fully canvassed by both sides in the sense that the Court was expected to pronounce upon it as an issue. '

[19] Adv Maree on the contrary referred this Court to Minister of Agriculture and Land Affairs v De Klerk 2014 (1) SA 212 (SCA) at 223G—H in submitting that the defendant is not allowed to direct the attention of the plaintiff to one issue in the plea and then canvass a different issue during the trial. The paragraph relied on by Adv Maree although extracted from the minority judgment is predicated on previous authority from the Supreme Court of Appeal. It reads as follows:

"[39] It is trite that parties are bound by their pleadings — the object thereof being to delineate the issues to enable the other party to know what case has to be met.8 (Gusha v Road Accident Fund 2012 (2) SA 371 (SCA) para 7.) It is impermissible to plead one particular issue and to then seek to pursue another at the trial.9 (Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107G-H). Agency, either express or implied, should be specifically pleaded and, in accordance with the general rule that he who asserts must prove, the onus of proof rests on the party who alleges such agency. "

[20] It is further apposite to note what was said in Circle Construction (Pty) Ltd v Smithfield Construction 1982 (4) SA 726 (N) that:

"A defence must be pleaded as well as proved for the Court sits to try issues raised by the pleadings. A defendant who misses his true defence or who has learned of it only from facts which appeared during the trial must therefore raise the defence formally and have it placed on roll. "

[21] The issue is clear. In respect of paragraph 2.5 of the defendant's plea, the defendant pleads that it bears no knowledge how the plaintiff sustained his injuries but pleads that he was possibly hit and injured by a bullet. This is in stark contrast to Selogilwe's evidence that he in fact saw and knew that he shot and injured the plaintiff under cross examination for the first time. The plea and evidence of Selogilwe in support of the defendant's defence is diametrically opposed.

[22] The principles enunciated in the authorities referred to above are clear and require no further elucidation save to consider their application to the peculiar circumstances to the present matter. Firstly, a party has a duty to allege in the pleadings the material facts upon which it relies. Secondly, it is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. Thirdly, a defendant who misses his true defence or who has learned of it only from facts which appeared during the trial must therefore raise the defence formally and have it placed on roll, in other words through an amendment of its plea.

[23] From the aforesaid principles extracted from the authorities, first it is clear that the defendant did not plead the material facts on which it relied, second the defendant pleaded a particular case and it was only established under cross examination and not ventilated (canvassed) or testified to in evidence in chief that Selogilwe in fact knew that he shot and injured the plaintiff. The defendant confronted with this anomaly did nothing to raise the defence formally to have it placed on the roll through an amendment of its plea. The contention that the parties ventilated the contradictory version of Selogilwe during the trial and that it is not fatal to the defendant's case, does not avail the defendant. Failing the concessions extracted from Selogilwe under cross examination, this Court was called upon to consider the case on the un-amended plea of the defendant.

[24] The plea as it stands, with no amendment sought, makes no mention of any wrongful conduct on the part of the plaintiff, of any injury caused or harm occasioned to Selogilwe by the plaintiff or the circumstances under which the plaintiff was shot and thereby injured. In the absence of these allegations by the defendant, the plaintiff it is accepted was as he testified on his version, an innocent bystander. For completeness, I turn to the grounds of justification raised by the defendant insofar as it would apply to the plaintiff as an innocent bystander.

The qrounds of iustification relied on by the defendant — self-defence alternatively necessity

[25] The principles applicable to necessity and self-defence as grounds of justification is succinctly dealt with in the analogous matter of Maimela and Another v Makhado Municipality and Another 2011 (6) SA 533 (SCA) where the following was said:

"[16]… I do not propose to embark on an elaborate exposition on the differences between the defences of self-defence and necessity. It suffices to say that necessity, unlike self-defence, does not require the defendant's action to have been directed at the perpetrator of an unlawful attack. It is invoked where the action, or conduct, of the defendant was 'directed against an innocent person for the purpose of protecting an interest of the actor or a third party (including the innocent person) against dangerous situation'. And whether or not the defendant's conduct would be covered by the defence of necessity will depend on all the circumstances of the case.

[17] Professor Jonathan Burchell Principles of Delict (1993) at 75 suggests that for an act to be justified on the ground of necessity

the following requirements must be satisfied:

'(a) A legal interest of the defendant must have been endangered, (b) by a threat which had commenced or was imminent but which was (c) not caused by the defendant's fault, and, in addition, it must have been (d) necessary for the defendant to avert the danger, and (e) the means used for this purpose must have been reasonable in the circumstances. '

[20] Counsel for the appellants submitted, however, that a court should be extremely hesitant to accept, without the most compelling evidence and circumstances, that it is lawful to kill an innocent person. In this regard, counsel contended, due regard must be had to 'the right to life' of the innocent victim as provided for in s 11 of the Constitution. This is so, but, as was stated by the Constitutional Court, '(00 deny the innocent person the right to act in self-defence would be to deny to that individual his or her right to life'. The same is true where an innocent person acts in circumstances of necessity. Thus, where a defendant is able to show that his conduct in causing the death of an innocent person was objectively reasonable in the particular circumstances, he will be exonerated. Of course, in determining whether the conduct of the defendant was reasonable a court will consider questions of proportionality. As was said in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA) para 10 'the greater the harm that was threatened, and the fewer the options available to prevent it, the greater the risk that a reasonable person would be justified in taking, and vice versa'.”

[26] In respect of the defence or ground of justification - self-defence, it is accepted that the test is an objective test. Boberg The Law of Delict, vol 1 (1984) at 788 succinctly encapsulates the legal position as follows:

'The enquiry is factual, and — since the issue is wrongfulness, not fault — the test is objective. Thus the question is not whether the defendant believed his conduct to be justified, but whether the law considers it so. This, in turn, depends on whether it was a reasonable response for the defendant to make to the situation, judged objectively and even with hindsight — although not without regard to the individual defendant's resources, motives and circumstances, for no test can be applied in a vacuum. If the test is satisfied the defendant escapes liability because he acted lawfully in a situation of necessity or defence. If the test is not satisfied the defendant cannot invoke necessity or defence to justify his conduct, which therefore remains wrongful'. "

[27] In Mugwena and Another v Minister of Safety and Security [2006] 2 All SA 126 (SCA) at paragraph [211 the Supreme Court of Appeal says:-

"[21] Self-defence, which is treated in our law as a species of private defence, is recognised by all legal systems. Given the inestimable value that attaches to human life, there are strict limits to the taking of life and the law insists upon these limits being adhered to.

'Self-defence takes place at the time of the threat to the victim's life, at the moment of the emergency which gave rise to the necessity and, traditionally, under circumstances in which no less severe alternative is readily available to the potential victim. '

(Per Chaskalson P in S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC) paragraph 138)."

[28] Having regard to the discussion supra it should be plain that for the defendant avert liability for the conduct of Selogilwe is to prove the existence of reasonable grounds for his belief that the behaviour of the protestors as a crowd was such that there was a danger to himself which required him to have acted in the manner he did and that the shooting with live ammunition was not excessive having regard to the peculiar circumstances of the incident.

[29] In Ntanjana v Vorster and Minister of Justice 1950 (4) SA 398 (C) at 406A-D and 410C-E, the Court stated in respect of the objective approach that:

"The very objectivity of the test, however, demands that when the Court comes to decide whether there was a necessity to act in self-defence it must place itself in the position of the person claiming to have acted in selfdefence and consider all the surrounding factors operating on his mind at the time he acted. The Court must be careful to avoid the role of the armchair critic wise after the event, weighing the matter in the secluded security of the Courtroom... Furthermore, in ludging the matter it must be ever present to the mind of the iudge that, at any rate in the particular circumstances of this case, the person claiming to act in self-defence does so in an emergencyt the creation of which is the work of the person unlawfully attackinq. The selfdefender is accordingly entitled to have extended to him that degree of indulgence usually_ accorded by the law when iudging the conduct of a person acting in a situation of imminent peril. 'Men faced in moments of crisis with a choice of alternatives are not to be judged as if they had had both time and opportunity to weigh the pros and cons…

[30] In Ntanjana v Vorster and Minister of Justice supra in reference to police standing orders, the court in respect of standing orders said:

"l have been referred to the police Standing Orders and it was contended that they place a higher standard of duty on the police in the circumstances of this case. After a perusal of these Standing Orders. I cannot agree that this contention is well founded. Even if it were, that cannot affect the common law liability of the police which is what the Court is here called upon to consider. While it may well be that a man imbued with a higher than normal sense of responsibility in the execution of his duty as a policeman might very well have been prepared to take the personal risk of grappling with the deceased and thereby saved the deceased's life, Constable Vorster cannot in law be held responsible for failing to disclose such a sense of responsibility The law requires of the police no higher and no less a standard of duty than is required of any member of the public placed in a similar situation, viz. that standard to which the ordinary and reasonable man in the street is required to conform. "

[31] A strong dissenting view was held in Ntamo and others v Minister of Safety and Security[3], which judgment was upheld on appeal in the Supreme Court of Appeal, where the following was said:

[26] Manana's failure to explain sensibly why he approached the deceased in the manner in which he did and his lack of a tangible plan on how to follow through that manner of approach suggest that he (and, therefore, his subordinates as well) approached the very serious situation they were facing blindly. In m view such conduct does not accord with what the communit expects of trained police officers. Under such circumstances as were prevailing at the time, the community expects of them such professionalism as will guarantee the safety of members of the public whilst at the same time taking care not unnecessarily to take the life of the aggressor. The boni mores of society or the legal convictions of the community ('regsoortuiging van die gemeenskap') dictate that this should be the position (cf Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597,4 - B). Conduct found wanting is wrongful. As the conduct of the police was manifestly wanting, it was wrongful. In conclusion on this aspect, I wish to express strong disagreement with the view expressed by Van Winsen AJ in the Ntanjana case supra at 410E. That view is to the following effect:

'The law requires of the police no higher and no less a standard of dut than is required of any member of the public placed in a similar situation, viz that standard to which the ordinary and reasonable man in the street is required to conform. '

Unlike ordinary members of the public, police receive special traininq in order to equip them with the necessary skills for the proper and effective performance of their duties. BV its verv nature. their lob exposes them to a milliard of danqers and life-threateninq

situations. Surely, their traininq takes this reality into account and, as far as is reasonably possible, prepares them for all

conceivable eventualities. Part of the danger the police face presents itself in the form of unlawful attacks by persons resisting arrest (as was the case in Ntanjana). Obviously, this must be one of the dangers their training addresses. The police are inter alia also trained in the use of firearms which are virtuall an indispensable tool to them. If this training does not make the police experts in their field of work, it certainly makes them by far better equipped than ordinary members of the public to deal with situations that threaten life or limb. In my view. this is a factor that must be taken into account in considering whether the police acted wrongfully (cf Indac Electronics (Pty) Ltd v Volkskas Bank Ltd [1991] ZASCA 190; 1992 (1) SA 783 (A) at 799C: Jowell v BramwellJones and Others 1998 (1) SA 836 (W) at 878G).. Therefore, the question should be: how would a police officer, with the necessary training and acting reasonably, have handled the situation?"

Discussion

[32] Adv Maree submitted that there is no evidence from Selogilwe that he acted in a state of necessity. As set out supra necessity does not require the defendant's action to have been directed at the perpetrator of an unlawful attack. Necessity can be invoked if the action or conduct of Setlogilwe was directed against an innocent person for the purpose of protecting an interest of the actor (that is his life against a dangerous situation).

[33] The peculiar facts of this matter on the version of Setlogilwe does not portray the plaintiff as being an innocent person. On his version in evidence contrary to the defendant's plea, the plaintiff was part of the crowd of protestors and himself pelted stones at him. Necessity therefore finds no application in this matter.

[34] Could Selogilwe's conduct be justified as self-defence/private defence. Before turning to this question, one needs to take a step back. At the time this incident occurred, the North West Province as a whole was in a state of turmoil with calls for the them Premier of the Province to step down. In fact, the North West Province was literally on fire. Selogilwe as the Station Commander, save a person referred to as a scribe were at the police station alone, with his entire force out in the field to attend to the protests. Selogilwe received a report of protests in the vicinity where the incident would ultimately occur.

[35] Through self-praise for having quelled protests through negotiation, he embarked on a journey armed with his service pistol with live ammunition to engage the unknown protestors. He had no riot or combat protective gear. He was aware that the police standing orders prohibited the use of live ammunition for crowd control. As a police officer he had to anticipate resistance and hostility from unknown protestors in a climate of ongoing protests in the North West Province. He, on his version testified that as he sat in his official motor vehicle, he could see the protestors were aggressive and yet he disembarked from the safety of his motor vehicle rather than fleeing. The aggression of the protestors persisted causing him to fire a warning shot in the air and a further shot into the tarred road. Selogilwe took the drastic step of shooting live ammunition at a crowd with innocent bystanders in the vicinity. These preliminary facts demonstrate that Selogilwe was the author of his own misfortune

who created a state of emergency through his own doing.

[36] When all else failed Selogilwe resorted first to shooting directly at one of the protestors with live ammunition and when that failed he identified the plaintiff and shot him in the chest. The conduct of Selogilwe is as was described in Ntamo and others v Minister of Safety and Security, in analogous circumstances, that:

"[25] The manner in which the police approached the crisis was characterised by a lack of professionalism, absence of proper

planning and general bungling... Manana could not sensibly explain why he, the only one in the group of police dressed in civilian

clothes, was the one who approached the deceased. His attempt at explaining this was that his civilian clothes gave him a better

chance to get quite close to the deceased. Once close he was to show the deceased his appointment certificate. His belief was that, once the deceased realised that he was a policeman, he would 'calm down' and surrender. This, according to him. was how most people causing trouble responded once they became aware that they were in the presence of police … Later in his testimony (under cross-examination) he said that he opted for closing in stealthily on the deceased in his civilian clothes because the deceased would have shot the uniformed police from a distance. He could not explain what would become of the respect for police which normally causes people to calm down. Manana also did not think his manner of approach through. He had no contingency plan in the event that the deceased was not willinq to co-operate…”

[37] The defendant failed to prove that the drastic action taken on its own version in the its plea with Selogilwe shooting at the protestors was necessary and therefore failed to prove the absence of wrongfulness. The entire approach adopted by Selogilwe from the time he left what appears to be the safety of the police station, to being confronted by an aggressive crowd of protestors whom he elected to confront by himself with no backup, was simply not justified.

[38] Even in respect of the attack on Selogilwe, it could have been averted by simply getting back into his vehicle and leaving the scene. The means used to avert the attack by firing live ammunition was not commensurate with the threat.

Conclusion

[39] On the merits of the matter, I accordingly find that the defendant is liable for the bodily injury sustained by the plaintiff and for compensating the plaintiff as may be agreed upon or at trial.

Costs

[40] Costs follow suit. I can find no basis to order otherwise.

Order

[41] In the result, the following order is made:

(ii) The defendant shall pay the plaintiff's costs in respect of the

merits of the action.

A

H PETERSEN

JUDGE OF THE HIGH COURT,

APPEARANCES

FOR THE PLAINTIFF: ADV. G Maree Instructed by: Nienaber & Wissing Attorneys 4202 Palmer Crescent Leopard Park

MAHIKENG FOR THE DEFENDANT: ADV.

O NTSAMAI Instructed by:

THE

STATE ATTORNEY 1 ST Floor, East Gallery

MEGA

CITY Matter heard: 03 March 2023 Heads of Argument filed: 06 April 2023 & 11 April 2023 Date of judgment: 20 July 2023

[1] Benson & Simpson v Robinson 1917 WLD 126.

[2] Minister of Safety and Security v Mohofe [2007] 4 All SA 697 (SCA); Minister of Safety and Security v Mamo 2003 (1) SA 547 (SCA); Petersen v Minister of Safety and Security [2007] 2 All SA 177 cele v Minister of safety and Security [2007] 3 All SA 365 (D); Kgaleng v Minister of Safety and Security 2001 (4) SA 854 (W).

[3] 2001 (1) SA 830 (TkH); 2003 (1) SA 547 (SCA).