Hart and Others v Masakhane Security (Pty) Ltd (317/08, 318/08) [2009] ZAECPEHC 38 (20 August 2009)

Hart and Others v Masakhane Security (Pty) Ltd (317/08, 318/08) [2009] ZAECPEHC 38 (20 August 2009)

The court found, on a balance of probabilities, that the plaintiffs in case 318/08 were each struck by bullets discharged by firearms held by employees of the defendant, and that the deceased in case 317/08 was fatally shot by an employee of the defendant. The evidence of the plaintiffs and independent witness Savahl was accepted as credible and reliable, while the defendant's witness Sidlova was found unconvincing and his evidence largely immaterial. The defendant failed to call the relevant security officers to justify the shooting, and thus did not discharge the onus of proving justification. The shootings were found to be wrongful and unlawful, and the defendant was held vicariously...

Citation
[2009] ZAECPEHC 38
Parties
Plaintiff: Ronald Christopher Hart; Plaintiff: Jan Stalmeester; Plaintiff: Thembelane Ashely Moss; Plaintiff: Pumplani Blouw; Defendant: Masakhane Security (Pty) Limited
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
20 August 2009
Case Number
317/08, 318/08
Procedural Posture
Civil Liability / Merits Separated From Quantum; Trial Judgment
Outcome
Judgment for the plaintiffs. Defendant held liable for damages and costs.
Judges
Eksteen
Legal Topics
Vicarious Liability, Negligence, Wrongful Shooting, Burden of Proof, Assessment of Evidence
Delict Civil Procedure Vicarious Liability Negligence Wrongful Shooting Burden of Proof Assessment of Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Ronald Christopher Hart

Plaintiff

Jan Stalmeester

Plaintiff

Thembelane Ashely Moss

Plaintiff

Pumplani Blouw

Plaintiff

Masakhane Security (Pty) Limited

Defendant

Procedural Posture

Civil Liability / Merits Separated From Quantum; Trial Judgment

Legal Issues

  1. 1 Whether the plaintiffs and the deceased were shot by bullets discharged by employees of the defendant.
  2. 2 Whether the defendant's employees acted negligently or unlawfully in discharging their firearms.
  3. 3 Whether the defendant is vicariously liable for the conduct of its employees.

Ratio Decidendi

The court found, on a balance of probabilities, that the plaintiffs in case 318/08 were each struck by bullets discharged by firearms held by employees of the defendant, and that the deceased in case 317/08 was fatally shot by an employee of the defendant. The evidence of the plaintiffs and independent witness Savahl was accepted as credible and reliable, while the defendant's witness Sidlova was found unconvincing and his evidence largely immaterial. The defendant failed to call the relevant security officers to justify the shooting, and thus did not discharge the onus of proving justification. The shootings were found to be wrongful and unlawful, and the defendant was held vicariously...

Court Disposition

Judgment for the plaintiffs. Defendant held liable for damages and costs.

Orders

  • In case no. 317/08: The defendant is liable to pay the plaintiff such damages as she may prove in her representative capacity as mother and natural guardian of Shanick Mellissa Tarentaal, arising from the wrongful and unlawful shooting of Cornelius Selwyn Dietlov on 31 May 2006.
  • The defendant is ordered to pay the plaintiff's costs of proceedings, with interest on taxed costs at the legal rate from fourteen days after taxation to the date of payment.