Levendal v Balakrishma (CA412/2008) [2009] ZAECGHC 50 (7 August 2009)

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

PARTIES:

T. S LEVENDAL APPELLANT

and

A. BALAKRISHMA RESPONDENT

Registrar: CASE NO: CA412/2008

Magistrate:

High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 3/8/09

DATE DELIVERED: 7/8/09

JUDGE(S): Plasket; Kroon and Pillay JJ

LEGAL REPRESENTATIVES –

Appearances:

for the Appellant(s): Mr S.S.W. Louw

for the Respondent(s):

Instructing attorneys:

Appellant(s): Whitesides Attorneys

Respondent(s): No appearance

CASE INFORMATION -

Nature of proceedings : Civil Appeal

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

CASE NO: CA412/2008

DATE HEARD: 3/8/09

NOT REPORTABLE

In the matter between:

A. BALAKRISHMA

RESPONDENT

______________

It was common cause that the respondent had shot the appellant. He had instituted a claim for damages against the respondent, alleging that the shot that struck him had either been fired intentionally or negligently. The trial court had held that it could not find that the appellant’s version was probably true and that, as a consequence, it had granted absolution from the instance. In an appeal, it was held that, on the respondent’s own version, his conduct had been both wrongful and negligent. The appeal succeeded with costs.

JUDGMENT

PLASKET J

[1] It is common cause that, on 20 October 2002 and at Quigney, East London, the respondent shot the appellant, rendering him a paraplegic. The appellant instituted an action against the respondent in which he claimed damages in the amount of R6 238 829.94. The trial was heard by Revelas J sitting in the East London Circuit Local Division. She separated the issue of liability from that of quantum and, after hearing the evidence of the appellant and the respondent, the only witnesses called to testify, she granted absolution from the instance. This is an appeal against that decision.

[2] When the appeal was argued Mr Louw appeared for the appellant. There was no appearance for the respondent as he had decided to abide the court’s decision.

[3] In his particulars of claim, the appellant based his cause of action on an intentional act – an assault – and, in the alternative, on a negligent act on the part of the respondent. That negligence was alleged to have consisted of a failure on the part of the respondent to have kept his firearm under ‘proper care and control’ and a failure to ‘ensure that it was not discharged’ as well as a failure to ‘take any steps to ensure that it did not become discharged’.

[4] In his plea, the respondent admitted having shot the appellant. He pleaded, however, that the appellant was suspected of stealing

newspapers from the respondent’s mother and that he was being aggressive towards her and had assaulted her. The respondent drew his firearm and the appellant ran away. The respondent gave chase with the intention of arresting the appellant. While doing so, he tripped on a curb. When he fell, a shot was discharged from his firearm and it struck the appellant.

[5] The appeal is based on two broad grounds. In the first place, it is argued that Revelas J erred in finding that the appellant’s version was not probable and that he had consequently not discharged the onus on him. In the second place, it was argued that on the respondent’s own version he was negligent and thus liable for the damage suffered by the appellant. In my view, the matter can be disposed of on the basis of the second argument and it is to it that I now turn.

[6] The respondent’s evidence is that on the morning of 20 October 2002 he received a telephone call from his mother to say that she was being harassed by one of two men whom she had caught stealing newspapers that she distributed. He armed himself with two firearms and proceeded to where his mother was.

[7] When he arrived he saw the appellant pushing or hitting or attempting to push or hit his mother. (On this aspect, his evidence, particularly in cross-examination, is not at all clear.) He asked what was happening and his mother said that the appellant stole her newspapers and would not enter her vehicle. The appellant’s friend, one Vino, was already in the vehicle and, it would appear, the respondent’s mother wanted to take both Vino and the appellant to the police station in connection with the theft of her newspapers.

[8] The respondent said that when he asked what was happening, the appellant ‘became violent towards me, throwing his fists at me’. He was, however, not struck by any of these punches. He stepped back and drew one of his firearms, a semi-automatic pistol. The appellant stepped back when he saw the firearm. The respondent told him to get into his mother’s vehicle. He refused and protested his innocence.

[9] The respondent again ordered the appellant to get into vehicle. His purpose in doing so was to arrest the appellant for stealing his mother’s newspapers and for assaulting her. The appellant then ran away. The respondent cocked his firearm and fired a warning shot into the air but the appellant continued to run away despite the respondent’s instruction to him to stop.

[10] The respondent then gave chase. While doing so he tripped on a curb and fell flat onto his stomach. He landed on his hands and, as he did so, a shot was discharged from his firearm. This was the shot that struck the appellant.

[11] When he was cross-examined, the respondent gave more detail about the incident. He confirmed that his intention was to arrest the appellant and to take him to a police station ‘so that we could sort this out’; that the firearm, being a semi-automatic pistol, was cocked and able to fire a round when he gave chase to the appellant; that when he gave chase he was holding the firearm by the butt with his finger on the trigger; and that, as he ran, the firearm was pointing at the ground.

[12] He stated that the curb on which he tripped was not obscured from his view. His cross examination then proceeded as follows:

‘And did you realise that if you should lose your footing you might fall? – I did not think at that time that I would lose my footing.

But if one were to fall holding a firearm in the manner that you have described by the butt, cocked, finger around the trigger if you were to have some kind of fall did you realise the firearm can be discharged? – I realise it now. At the time of the incident it happened very quickly. It gave me no time to think about that.

Should you have realised that? – I should have.’

[13] Later, similar territory was traversed. His cross examination reads as follows:

‘Surely then it was in your mind too that if you were to run and you would then fall the shot can then also go off? Isn’t that so? - Yes.

Yes and you should have taken a precaution to prevent that. Isn’t that so? – The incident happened so quickly that I did not have time to think, you know it, like I said with me running with the firearm down it was pure instinct, maybe it was because of the training or things that I’ve learned about the firearm, but I did not think that far as to run with a loaded firearm and the consequences thereafter. I did not think at that time, like I said I ran, I took off chasing Mr Levendal and I had fallen it wasn’t something that was planned. Unfortunately I fell.’

[14] It was argued by Mr Louw that, on these facts, the conduct of the respondent was both wrongful and negligent, that he was therefore

liable in damages to the appellant, and that the trial court should have so found.

[15] Van der Walt and Midgley1 define conduct as wrongful if it ‘either infringes a legally-recognised right of the plaintiff or constitutes the breach of a legal duty owed by the defendant to the plaintiff’, that the enquiry is an objective one that focuses on ‘whether the infringement of the plaintiff’s interest was in the particular circumstances objectively justifiable or unjustifiable’ and that wrongfulness is determined ‘according to the general criterion of reasonableness’.

[16] I am satisfied that on the evidence that I have outlined above the wrongfulness of the respondent’s conduct has been established: the wrongfulness of his conduct lies in the use of deadly force against the appellant in circumstances where he was fleeing from being arrested for two relatively minor offences. The use of force in those circumstances is unreasonable and the law does not recognise the right of a person to shoot a fleeing suspect where there is such an extreme disproportion between the offences committed and the force used.2

[17] I turn now to the issue of negligence. The test to determine whether a particular act was negligent or not has been formulated by Van Der Walt and Midgley as follows:3

‘Traditionally, the foreseeability test is applied to determine whether or not conduct was negligent. The test basically comprises three elements: reasonable foreseeability of harm; reasonable precautions to prevent the occurrence of such foreseeable harm; and failure to take the reasonable precautions. Conduct is therefore negligent if a reasonable person in the same position as the defendant would have foreseen the possibility of harm and would have taken steps to avoid the harm, and the defendant failed to take such steps.’

[18] In my view the reasonable person in the position of the respondent would have foreseen that while running after a fleeing suspect in an urban area he or she may trip on a curb; that, when holding a cocked firearm with his or her finger on the trigger while running, the firearm is likely to discharge a round if he or she were to fall; and that, in the event of a round being discharged in this way, it could strike either the fleeing suspect or any other person in the street or in nearby buildings or vehicles. Secondly, a reasonable person in the position of the respondent wound not have run after a fleeing suspect with his or her finger on the trigger of a cocked firearm and so a reasonable precaution was available to the respondent to prevent the occurrence of the foreseeable harm: all he had to do was to remove his finger from the trigger when he ran after the appellant. If that precaution had been taken, a shot would not have been discharged when he fell. He consequently failed to take that simple step to avoid the harm to the appellant. In the result, the evidence establishes the negligence of the respondent.

[19] I am consequently of the view that the appeal must succeed. I make the following order.

The order of the court below is set aside.

That order is substituted with the following order;

The defendant is liable to the plaintiff for such damages as the plaintiff my prove in due course in consequence of him having been shot by the defendant on 20 October 2002.

The defendant is directed to pay the plaintiff’s costs.

The respondent is directed to pay the appellant’s costs of this appeal.

______

C. PLASKET

JUDGE OF THE HIGH COURT

I agree.

____

F. KROON

R. PILLAY

APPEARANCES:

For the appellant: Mr S.S.W. Louw instructed by Whitesides Attorneys, Grahamstown

For the respondent: No appearance.

1 Principles of Delict (3 ed) Durban, LexisNexis Butterworths: 2005, para 60.

2 See, for example, Ex Parte Minister of Safety and Security and others; In Re S v Walters and another [2002] ZACC 6; 2002 (4) SA 613 (CC); 2002 (7) BCLR 663 (CC).

3 Note 1, para 117.