Ndhlovu v Minister of Police and Others (3389/2019) [2023] ZAMPMBHC 10 (22 February 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION (MAIN SEAT)

Case Number: 3389/2019

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

22 February 2023

In the matter between:

THEMBA MOOSA NDHLOVU

Plaintiff

and

THE MINISTER OF POLICE

First Defendant

NATIONAL COMMISSIONER OF THE SOUTH

AFRICAN POLICE SERVICES

Second Defendant

PROVINCIAL COMMISSIONER OF

MPUMALANGA POLICE

Third Defendant

This judgment was handed down electronically by circulation to the parties’ representatives by email and by its release to SAFLII. The date and time for hand-down is deemed to be 09h45 on 22 February 2023.

JUDGMENT

Roelofse AJ:

INTRODUCTION

[1] The plaintiff has instituted an action against the defendant for damages arising from an alleged unlawful arrest and assault by the police. The plaintiff’s case is that the police unlawfully shot and unlawfully detained him thereafter. The claim for the unlawful arrest was settled. I only have to decide on the claim founded upon the assault but not the damages if proven. The parties agreed to separate “merits” from “quantum”.

[2] By the time the trial reached this court, I had to decide only one question. The question I had to answer is whether members of the

South African Police Services had shot the plaintiff. The defendant denied that the police had shot the plaintiff. As will fully appear in this judgment, I have to choose between two opposing versions on who, most probably, the shooter was that shot the plaintiff.

THE EVIDENCE

[3] The plaintiff and his former girlfriend, Me. Nombiso Sibuyi (Me. Sibuyi) testified in the plaintiff’s case. The defendant led the evidence of three police offocers.

Evidence for the plaintiff

The plaintiff

[4] The plaintiff testified that he visited Me. Sibuyi on 6 April 2018. He went to her residence in the afternoon because he wanted to pay his child that he had with her a visit. After the plaintiff saw his child, he remained at Me. Sibuyi’s residence. Around 17:00 a friend, Mr. Khoza (who has since passed) arrived at Me. Sibuyi’s residence. The plaintiff, Me. Sibuyi and Mr. Khoza were seated on a cement slab to the left side of her dwelling. Opposite them there was a small out building that was previously used as a shop.

[5] The cement slab was situated close the to the kitchen of the dwelling. At approximately 19h00, two people dressed in civilian clothes approached them from behind. The plaintive heard the persons’footsteps behind him on the cement slab. He looked behind him and saw the people pulling out their firearms and loading them. The persons shouted “hey” as both of them pulled out their fire-arms. The plaintiff thought that the people were there to mug them. The plaintiff did not identify the two people as police officers. The plaintiff and Mr. Khoza started running away. The plaintiff ran for approximately 5 metres before he fell down because he was shot.

[6] The plaintiff testified that he had heard a number of shots besides the initial shot that came from behind him as he ran away. Shots were also fired from the front of the plaintiff. The plaintiff testified that he was shot from the front. He was shot in his elbow.

The plaintiff testified that Mr. Khoza also fell down. Mr. Khoza was bleeding from his head. Me. Sibuyi did not run away. She remained

seated on the cement slab.

[7] The plaintiff testified that he had no firearm in his possession on the day and that he also did not own a firearm. Mr. Khoza also did not have a firearm with him so also not Ms. Sibuyi.

[8] The plaintiff testified that after he was shot, police officers in uniforms appeared on the scene. Some of the police officers came from the side of a tree. It seemed to the plaintiff that the entire property was surrounded. The two persons in civilian clothes searched the plaintiff for a firearm.

[9] The plaintiff was taken to the Tonga hospital for treatment. He was transported to the hospital on the back of a bakkie. The plaintiff remained in hospital for 10 to 15 days. While in hospital, the plaintiff was cuffed to his bed from the Friday to the Monday and

then the cuffs were removed.

[10] According to the plaintiff, the police did not approach him or discuss anything with him after the incident. He was also not interviewed on what happened on the scene. He was never required to appear in court for any offences allegedly committed.

[11] During cross examination, the plaintiff testified that he does not know which one of the two persons in plain clothes had shot him.

Also under cross examination, when asked how he knew that he was shot from behind, the plaintiff testified it was because the people who appeared with the firearms from behind him. He only saw the people clearly when they searched him after he was shot. On a question about how he knew that they discharged firearms he testified it was because the sound came from behind as he was running away. However, the plaintiff conceded that he heard shots coming from the front and from behind.

[12] Further during cross examination, it was put to the plaintiff that more than three people were seated on the cement slab. The plaintiff denied this statement. The plaintiff testified under cross examination that Sergeant Khoza identified themselves as police officers. It was put to the plaintiff under cross examination that the police took cover when the shots were fired. This the plaintiff denied. The plaintiff testified that the police did not take cover – they only came to search him. It was put to the plaintiff that the people who fired the shots ran all over and escaped. The plaintiff denied this and said it was only the three of them who were present.

[13] It was put to the plaintiff that Sergeant Khoza will testify that he fired one shot to the side of the people who were running away. The plaintiff testified that many shots were fired. It was also put to the plaintiff that Sergeant Khoza would testify that he could

still hear shots being fired about 100 metres away. Further under cross examination, the plaintiff conceded that he was shot from the front. The plaintiff testified that he did not know who the people were who shot him from the front - he only saw them after he fell to the ground and when he was searched. The plaintiff conceded that he did not know who shot him.

Me. Nombiso Sibuyi

[14] Me. Sibuyi testified that she was the plaintiff’s former girlfriend. She confirmed in her testimony that she was at home on 6 April 2018 and that the plaintiff arrived at her home because he wanted to see his child. Mr. Khoza also arrived at about 20h30 in the evening. They were sitting on the cement slab. That is, the plaintiff, Me. Sibuyi and Mr. Khoza. Me. Sibuyi testified that while they were sitting on the cement slab, people approached them from behind. When the people walked on the cement, she heard a person pulling out something and loading it. One of the persons started shooting at the plaintiff. She remained seated because she was frightened.

[15] Me. Sibuyi testified that the people behind them has said nothing before the shot was fired. Ms. Sibuyi saw that the plaintiff fell next to a tree not far from where they were seated. Me. Sibuyi testified that neither she nor the plaintiff nor Mr. Khoza had a

firearm with them that evening. She testified that there were no other persons on the scene except for the three of them. The people

that came from behind did not identify themselves as police officers. They were not in uniform. After the plaintiff was shot, the police took both the plaintiff and Mr. Khoza and left with them.

[16] Me. Sibuyi testified that the police came back at about 22h00. They searched on the ground around her dwelling. She saw them picking

up something. She does not know what it was. Ms. Sibuyi testified that it was the same people who had fired the shots earlier. The people that attended her dwelling did not tell her why they were there. She was inside the house peeping through the window.

[17] Me. Sibuyi testified that she saw the plaintiff being shot and that he fell to the ground. Me. Sibuyi testified that she does not

know who shot the plaintiff because she did not look at the persons who approached from behind. She only speculates on how the plaintiff was shot. Me. Sibuyi testified that she heard the sounds from behind her and then shots were coming from everywhere on the scene.

[18] Under cross examination Me. Sibuyi testified that members of the South African police services came from all sides. It was put to

Ms. Sibuyi that the police members will testify that unidentified persons jumped up and started shooting at them. It was put to the witness that Sergeant Khoza would testify that he identified himself and then the other people who were amongst the plaintiff, her and Mr. Knoza jumped up and started running away. The witness answered that she did not hear anyone identifying themselves as police officers. It was also put to the witness that Sergeant Khoza will testify that he fired a warning shot because the people decided to run away. Ms. Sibuyi answered that it was when the people appeared from behind that the people ran away. Ms. Sibuyi testified under cross examination that the plaintiff and his friend run away before shots were fired.

Evidence for the defendant

Grenick James Khoza

[19] The witness is employed by the South African police services and stationed at Tonga. He holds the rank of Sergeant. The witness testified that he went to the scene because he received the message that boys were in possession of a firearm. This information was received from a police officer in the police’s intelligence department. Constable Mahori from the intelligence department pointed out Ms. Sibuyi’s premises. The witness testified that between eight to nine officers accompanied him to the scene. The witness testified that he was not in police uniform when he attended the scene with other police officers. The witness testified that he heard a gunshot coming from amongst the group of men setting at Ms. Sibuyi’s premises. Despite being dark, the witness noticed five young men seated under a tree in Ms. Sibuyi’s yard. The witness shouted that they are police and requested the people not to move. Some of the people ran away. The witness told them not to run. The witness fired a warning shot to into the ground. The persons that were fleeing continued shooting. The police officers took cover to in a safe area. After a while, the shots stopped. The police officers went back where the people were seated and found the plaintiff lying on the ground. The witness noticed that the plaintiff was bleeding. The plaintiff identified himself. Except for the plaintiff’s arm there was no other visible injuries. The witness confirmed that the police were also able to arrest Mr. Khoza who only had a knife in his possession. The witness testified that he only fired one warning shot.

[20] Under cross examination, the witness testified that the people were not sitting on the cement slab and that there was a number of

people sitting under a tree between the cement slab, the dwelling and the small outbuilding. The witness maintained that he saw a group of people sitting as he has described before. The witness did not dispute that people might have been sitting on the cement slab. However, he was adamant that people were sitting in a circle and that the first shot came from the group of people who was sitting in a circle. The witness testified that he did not see any person approaching on the cement slab from behind. He also denied that police officers approached from behind on the cement slab when the plaintiff’s version was put to him. The witness and another police officer was in civilian clothing. The witness confirmed his testimony that he saw one person shooting and that then person ran away. The witness maintained that he saw one person from the group who had fired a shot. The witness testified that it was not the police in civil clothes that fired shots. The witness testified that he only knew of the one shot he had fired but that the other police officers would be able to tell if they also fired shots.

Abel Mpanza

[21] The witness attended the scene on the day of the incident. He was present when the plaintiff was shot. The witness testified that

when he took a position, he heard shots coming from the inside of the yard. He did not know from which direction the shots came and who was shooting. The witness confirmed the other police witnesses’ testimony that shots rang out amongst the persons who were running away. After the gunshot sounds stopped, he could only hear the police officers talking in the premises. The police officers went to the plaintiff who was lying injured on the ground. The witness testified that the initial gunshots started from inside of the yard and after a while he could hear gunshots further away.

[22] Under cross examination, the witness testified that he was with constable Mabuza. The witness testified that, after arriving on the scene, he could see people in the premises outside the dwelling. He did not see what the people were doing. The witness could not dispute that there were also detectives at the scene in civilian clothes. He testified that three people were in civilian clothes that is two police officers and one person from the intelligence department. The witness testified that he could not dispute that

people approached the plaintiff, Me. Sibuyi and Mr. Khoza from behind.

Ntandiso Thandi Mahori

[23] The witness is employed by the South African police service as a constable. She is employed at the crime intelligence centre unit.

She is a clerk and crime intelligence gatherer.

[24] The witness testified that she received information to go to Ms. Sibuyi’s premises because there was someone that was in possession of a firearm and that a robbery was being planned. The fire arm, according to her information, was in the possession of the plaintiff’s friend, Mr. Khoza.

[25] The witness confirmed that when she arrived on the scene with the other police officers, she saw people sitting in front of the room in a circle. There were about six people seated there. Some of the officers were in uniform while she and two other officers were in civilian clothes. Constable Khoza shouted “Police” while he was outside of the yard. After he shouted, one person ran away. It was then when the shooting started from inside the yard. A police officer fired a warning shot into the ground. Instead of stopping the people ran away. After the gunshot sounds stopped, police members entered the yard where they found the plaintiff. The plaintiff was taken to hospital. At the time she was outside of the yard, she could see people but could not see their faces.

[26] Under cross examination, the witness confirmed that the police officers divided into different groups. Some were behind the building

and some were at the side of the yard. They were about eight police officials. The police did not surround the entire premises because the police thought that if there would have been an escape it would be through the front gate. The witness testified that she was stationed behind the small outbuilding. She remained there for the whole time. The witness only heard the shooting.

[27] The witness testified under cross examination that when the first shot rang out from inside the yard while the police officers were still outside of the yard.

Discussion

[28] It should be immediately apparent that I have to choose between two conflicting versions of how the plaintiff was shot and by whom he was shot. The plaintiff and Me. Sibuyi say that it is the police that shot the plaintiff notwithstanding the plaintiff not seeing the person who had fired the shot that injured him. The defendant wants the court to find that the plaintiff was shot by someone who was amongst the group of people who were present at Ms. Sibuyi’s premises on the night in question.

[29] In evaluating the quality of the witnesses and the evidence they gave there is little to differentiate. All the witnesses were candid in their demeanour and withstood cross examination well. I am unable to choose a version which is most likely the full truth. What was established by the evidence is that the plaintiff himself does not know who the shooter was that shot him. It could therefore have been one of the police officers or one of the persons who ran away when the police arrived and announced their presence. What I am confronted with is two irreconcilable versions over who had 8most likely shot the plaintiff. Was it one of the two men approaching the plaintiff, Ms. Sibiya and Mr. Khoza while they were sitting on the cement slab, or was the plaintiff shot by one of the persons present at Ms. Sibiya’s dwelling before the police arrived? The only way I see to resolve this perplexing question is to consider Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others[1] the guidance that is given if the court is faced with irreconcilable versions. This is what Nienaber JA said:

‘ [T]he technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case,

which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.’

[30] As to the credibility of factual witnesses and the factors to consider in determining such witnesses’ credibility, I am of

the view that the witnesses that testified were all credible. My impression on the veracity of each of the witnesses is equal and I cannot differentiate as to their veracity. All the witnesses fared well in the witness box and withstood cross-examination equally well. Where there were internal and external contradictions, which can be expected in their account of events that took place the evening of 6 April 2018, that is close to five years ago. Those contradictions that were present were in my view not indicative of a false version. The witnesses, during the shooting that took place, by large all had equal opportunity and also disadvantages in making the observations they did or think they did.

[31] All things being equal as to the quality of the witnesses and their versions, I consider the onus. The onus of proving the assault

upon the plaintiff by the police lay with the plaintiff. For that I consider the probabilities of the contradictory versions. The

plaintiff is unable to identify the person who shot him. He and Ms. Sibiya appear to assume that it was one of the two men that

approached from behind. Is that the only conclusion, having regard to the totality of the evidence I can reach. I think not. The police’s version was that the first shot rang out from the group of people at Ms. Sibiya’s residence. Yet again, the police cannot say who shot the plaintiff.

[32] In making choice between the two versions, I consider the defendant’s version the most probable. The plaintiff’s

version is improbable for that version dictates that the police approached the plaintiff, Ms. Sibiya and Mr. Khoza from behind and one of the men shot at the plaintiff without a warning after only sayng “hey”. This version is to my mind so improbable

that it may be safely rejected.

[33] Costs must follow the result.

In the premises, I made the following order:

(a) The plaintiff’s claim is dismissed.

(b) The plaintiff is ordered to pay the defendant’s costs.

Roelofse AJ

Acting Judge of the High Court

DATE OF HEARING:

28/11/2022

DATE OF JUDGMENT:

22/02/2023

APPEARANCES

For the Plaintiff: Mr. JA Du Plessis instructed by Gouws van Aarde Inc.

For the Defendant: Mr. De Klerk instructed by the State Attorney.

[1] (427/01) [2002] ZASCA 98 at para. 5.