Peterson v Minister of Safety and Security and Others (19911/2011) [2017] ZAGPPHC 246 (25 May 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 19911/2011

In the matter between

PETERSON, DINO Plaintiff

and

MINISTER OF SAFETY AND SECURITY

First Defendant

Alternatively

MEMBER OF EXECUTIVE COMMITTEE FOR SAFETY

AND SECURITY, GAUTENG

LEONARD TITUS Second

Defendant

SERGEANT NICOLAS ROMAN Third

Defendant

JUDGMENT

Bam J

Representatives:

For Plaintiff: Adv KP de Waal SC an Adv P Nel.

For Defendants: Adv S Joubert SC and Adv G Bester SC

1. The plaintiff instituted a claim for damages against the defendants as a result of injuries sustained during a shooting incident.

2. The merits and quantum have been separated in terms of Rule 33(4) of the Rules.

3. It is the plaintiff's case that early morning of Sunday, 19 July 2009, at the 527 Club, in Eden Park, Alberton the second defendant, a policeman, unlawfully, shot him with a firearm. As a result of the injuries sustained after being hit with four bullets, he became a paraplegic. The third defendant, also a policeman, and the second defendant's senior, was in the company of the second defendant at the time. The plaintiff claims damages from the defendants, averring that the first respondent is vicariously liable.

4.

4.1 The first defendant denied liability.

4.2 The second defendant denied that he was on duty at the time of the incident and pleaded "that the four shots were discharged from his official firearm in circumstances where he feared for his life and acted in self defence and therefore lawfully, in that he had been fired at or shots fired in his direction."

4.3 The third defendant denied any liability.

5. What exactly happened that night is not altogether clear and somewhat controversial. It is not in dispute that the plaintiff, Mr Peterson, was shot and seriously injured and that his friend, Boya, was shot and killed during the same incident.

6. After having heard viva voce evidence of two eye witnesses, the plaintiff and his witness, Mr Jacobs, the manager of the club, (the second and third defendants did not testify), the situation, and what occurred, can be described and summarised as follows:

The club is frequented by members of the same community. It appears that they mostly knew each other by either having grown up in the area, or having attended the same school and/or are residing or working in the area. The plaintiff and the second and third defendants, two policemen, Constable Titus and Sergeant Roman, were well known to each other and were on good terms. The two policemen, detectives, wearing mufti but also distinctive Drimac jackets bearing the police badge and the name of their unit, were armed with their official standard issued 9mm pistols. During the course of the night the club was attended by more than 250 people. The plaintiff and members of his soccer club arrived at about 22h00 the Saturday night. The two policemen were at the bar in the company of two women, apparently minding their own business. Between 2h00 and 3h00, somebody fired a shot inside the club. A man called La Bal was later suspected as the shooter. An altercation broke out between certain young men, and the manager, Mr Jacobs, had to use violence, a blow with his fist and a slap, to maintain order. The plaintiff also intervened. During the scuffle between the plaintiff and other young men, plaintiff landed on the floor and was also hit with a bottle. After things had quieted down the plaintiff and his friend Boya moved away. Whilst the plaintiff had his back turned to the bar, shots rang out and the plaintiff was struck four times in his back.

He fell down and subsequently discovered that he was paralysed. Boya, who was walking with him, were fatally struck by two shots.

7. Plaintiff testified that second defendant fired the shots that hit him. This was confirmed by Mr Jacobs. As already alluded to neither second nor third defendant testified and no other evidence was adduced by the defendants contesting the version of plaintiff and his witness.

Accordingly, the plea of the defendants, in their amended plea, that second defendant lawfully discharged shots from his official fire arm in self-defence, remained unsubstantiated. The probability that shots were fired by somebody else, were therefore of no avail to the defendants. There was no indication at all that somebody else shot at the second defendant justifying any claim of self-defence. It remained unexplained why the second defendant fired those shots at the time.

8. Mr Joubert's submission that it was not proved that any one of the shots fired by the second defendant actually caused his paralysis, is without substance. The plaintiff was hit four times when the second defendant fired at him and was thereafter paralysed. In my view this issue need no further attention.

9. Subsequently, after the police had secured the area, seven 9mm cartridge casings were found. Four casings were forensically linked

to the official fire arm of second defendant and the remaining three were found to have been fired by two different fire arms. The latter two fire arms were never found.

10. The evidence is not conclusive concerning how many shots were fired, it could even have been about ten. In this respect it has to be taken into account that two separate shots also hit the deceased, Boya, and, as alluded to, that seven 9mm cartridge casings were discovered at the scene, four admittedly fired by the second defendant, another possibly by La Bal, and two others discharged from a third fire arm. A spent bullet, which was not forensically linked to the second respondent's fire arm, was also found. The spent bullets found in the body of the deceased, Boya, could similarly not be linked to any specific fire arm. Accordingly the possibility that shots were fired by someone else than the second defendant cannot be excluded but will remain unexplained. However, any suggestion that some of the cartridge casings, not linked to the second respondent's fire arm, were later "planted" by somebody, is nothing but conjecture. In view thereof that only four cartridge casings fired by second defendant's fire arm were found at the scene, the fact that second respondent handed in his fire arm with 8 bullets in the magazine, whilst the magazine has a capacity of 15 rounds, does not justify a finding that second defendant indeed fired more than four shots. However, this issue is of minor importance and actually of no consequence.

11. After the shooting incident there was pandemonium. Policemen later arrived, but the area was not immediately secured and cordoned off. Apart from the bullet wounds the plaintiff also sustained a penetrating knife wound to his stomach. How that came about, he was unable to tell. The possibility exists that he could have sustained that at the time of the interaction with the other men during the altercation before the shooting. It is in any event of no consequence. Plaintiff was taken to the hospital and second and third respondents left the scene in a police vehicle.

12. After having handed in his fire arm, second defendant visited Captain Williamson, a policeman living in the area and well known to him. There after he was transported to a hospital. He had a bleeding injury to his left fore-arm, which he claimed was a bullet wound. This, unfortunately, also went unexplained. Subsequently he made certain statements used during, inter alia, a disciplinary enquiry. I will return to the issue concerning the contents of that statement.

13. The plaintiff's case against the second defendant is based on the following:

(i) That second defendant entered the club with his firearm;

(ii) That second defendant placed himself on duty when he entered the club as back-up for third defendant;

(iii) That he unlawfully and indiscriminately discharged his firearm in the club;

(iv) That he failed to avoid the incident when he could and should have done so by exercising reasonable skill, care and diligence.

14. It is inescapable to find that second respondent fired the shots that hit the plaintiff. In view thereof that there was no explanation

forthcoming from the second defendant why the shots were fired it follows that it has to be found that he acted wrongfully and that, in the circumstances, he should be held liable for the damages suffered by the plaintiff.

15. In respect of third defendant, Sergeant Roman, Mr de Waal submitted that the court should find that he is also liable for the damages sustained by the plaintiff on the basis, amongst others, that he had a duty, as detective sergeant to have prevented the second defendant from entering the club with a firearm and (later) by failing to prevent second defendant from taking out his firearm and discharging it. I do however not agree that third respondent can be held liable. Although third respondent was probably in the immediate proximity of second defendant when the shots were fired, there was no evidence what exactly he did at the time. There was also no evidence whether he was aware that second defendant was about to fire and that had the duty of care to prevent or stop second defendant from doing so. It is a matter of logic that third respondent can only be held liable for the actions of second defendant in circumstances where he was in fact aware of second defendant's actions, or intentions, and that he as a police officer, willingly or negligently failed to do anything about it. The mere fact that third defendant knew that the second defendant was in possession of his service pistol is not a sufficient ground upon which third respondent should be held liable. The fact that

third defendant left the scene after the shooting is also of no consequence. Accordingly plaintiff did not prove that third defendant

should be held liable at all.

16. The main issue, however, is the liability of first defendant. The principles and applicable considerations were considered, discussed and applied in many cases before our highest courts. The most recent decision seems to be Minister of Safety & Security v Booysen (35/2016) [2016] ZASCA, "Booysen", adjudicated in the Supreme Court of Appeal. The Court, specifically referred M inister of Police v Robie 1986 (1)117 (A) "Robie", K v M inister of Safety and Security 2005(6) SA 419 (CC) ("K") and applied in F v M inister of Safety and Security and Others 2012(1) SA536 (CC)("F").

17. In pars [40] and [41] of Booysen, the Court remarked as follows: [4D}'Vicarious liability means a person may be held liable for the wrongful act or omission of another even though the former did not, strictly speaking, engage in any wrongful conduct. This would arise where there is a particular relationship between these persons, such as employment. As general rule an employer is vicariously liable for the wrongful acts or omissions of an employee committed within the course and scope of his employment, or whilst the employee was engaged in any activity reasonably incidental to it.

[41] Two tests apply to the determination of vicarious liability. One applies when an employee commits the delict while going about the employer's business. This is generally regarded as the 'standard' test. The other test finds application where wrongdoing takes place outside the course and scope of his employment. These are known as the 'deviation cases'."

18. In both F and Booysen, the respective Courts found that these cases were 'deviation cases'. The 'standard' test did therefore not apply.

19. In F, (a policeman who was off duty but on standby, used a police vehicle to transport a young girl and then raped her), after having considered whether there was a sufficient connection between the policeman and his employment, the following was said:

[64] Accordingly the employment of someone as a police officer may rightly be equated to an invitation extended by the police service to the public to repose their trust in that employee ".,and

[67] I accept that the distinction between a policeman who is on duty and one who is off duty is a relevant factor in determining the closenessof the connection between the wrongful act and the perpetrator's employment. I do not accept, however, that it is determinative of whether the State may be held liable".

The Court in F concluded as follows:

[81] "In conclusion: The police vehicle, which was issued to him precisely he was on standby duty, enabled M r van Wyk to commit

the rape. It enhanced his mobility and enabled him to give a lift to Ms F. Further, when Ms F re-entered the vehicle, she understood M r van Wyk to be a policeman. She made this deduction from the dockets and the police radio in the vehicle. In other words he was identifiable as a policeman. And infact he was a policeman. Pivotal is the normative component of the connection test. Beyond her subjective trust in M r van Wyk is the fact that any member of the public, and in particular one who requires assistance from the police, is entitled to turn to and to repose trust in a police official." [82] "For these reasons the Minister is vicariously liable."

In Booysen ( a policeman who was not on duty at the time, used his service fire arm to shoot the plaintiff) it was a factual situation that the policeman involved was at the house where the plaintiff was shot "solely for his own reasons",which had nothing to do with his employment. In respect of the second test, the trial court found that the fact that the policeman used his service pistol was a "sufficiently close connection " between the shooting and police business, and held the Minister vicariously liable. The Supreme Court of Appeal differed from this

finding and held (Par (28]) that the link between the employer's business and the delict was "missing". The appeal was upheld.

20. The present case apparently bears similarities to both F and Booysen. In F the Constitutional Court held the link to be, inter alia, the use of the police vehicle and in Booysen the trial court (not the SCA) followed F in principle and probably substituted the use of the police vehicle with the use of the service pistol.

21. In the present case, however, it was submitted by Mr de Waal that it is not the plaintiff's case that this is a 'deviation' case, and, accordingly, that the 'standard test' is therefore applicable. The policeman's conduct (that is second defendant), so the argument goes, in shooting the plaintiff, had a close connection with the nature of his employment, rendering the first defendant vicariously liable.

22. In developing his argument, Mr de Waal referred to the following: The normative components that point to liability (of the Minister) are the following:

1. The State's constitutional obligations to protect the public;

2. The trust the public is entitled to place in the police;

3. The significance, if any, of the policeman having been off duty and on standby duty;

4. The role of the simultaneous act of the policeman's transgression and omission to protect the victim;

5. The existence or otherwise of an intimate link between the policeman's conduct and his employment.

23. I do not deem it expedient to refer to the arguments of Mr de Waal and Mr Joubert in detail. In view thereof that it is the case of the plaintiff that the standard test applies, my conclusion is based on that issue.

24. In considering the factual situation whether the standard test applies, the following aspects and considerations are materiel:

(i) The second and third defendant were known as policemen and were well known to the community attending the night club;

(ii) The plaintiff and the two defendants were well acquainted;

(iii) Both second and third defendants were armed with official fire arms.

(iv) Second defendant placed himself on duty by assisting the third defendant as "back-up".This is borne out by the statement he made, the hearsay evidence (which is formally admitted) and further confirmed by the fact that he arrived, and left the scene in a police vehicle, and the fact that he was indeed in the company of the third defendant, as well as that he was in possession of his official firearm.

(v) On the probabilities, in firing the shots, the second defendant, in his official capacity as a policeman, reacted to some or other threat or presumed dangerous situation. There is no indication that he initiated any problem, or violent behaviour, and that he was on a frolic of his own when he fired the shots. This is borne out by the fact that he, an experienced policeman, fired a number of shots, apparently in one direction, namely that of the plaintiff. The plaintiff posed no danger or threat to him. It follows that second defendant, in reacting to whatever the situation was, at the time, probably mistakenly, fired the shots that hit the plaintiff.

25. In view of the aforesaid it follows that the first defendant is held liable for the conduct of the second defendant.

26. In respect of costs, it was submitted by Mr de Waal that the defendants should be ordered to pay the costs on an attorney and

client scale. In this regard Mr de Waal submitted that the first defendant has "manipulated the evidence to avoid the dispensing of justice to a citizen who has suffered serious and permanent harm..."

Mr de Waal further submitted that the defendants were well aware that they did not have a defence, which is confirmed by the fact that no evidence was adduced by the defendants on the merits.

27. After having considered all relevant aspects, I am not of the opinion that this case, despite the strategy followed by first defendant, merits a penalty cost order.

Order:

The draft order is amended as follows:

(i) All references to the liability of third defendant are deleted.

(ii) The costs order in par 3 is further amended by deleting the words:

"on the attorney and client scale".

(iii) Par 5 is added. It reads as follows: Plaintiff's claim against third defendant is dismissed with costs.

The draft order, as amended, marked X, is made an order of court.

A J BAM JUDGE

25 May 2017

(GAUTENG DIVISION, PRETORIA)

CASE NO: 2011/19911

25/5/2017

In the matter between:

AND

MINISTER OF SAFETY AND SECURITY 1st Defendant

alternatively

MEMBER OF THE EXECUTIVE COMMITTEE FOR SAFETY

AND SECURITY GAUTENG

MR LEONARD TITUS 2nd Defendant

SERGEANT NICHOLAAS ROMAN 3rd Defendant

DRAFT ORDER

HAVING HEARD COUNSEL FOR THE PARTIES AND THE EVIDENCE ADDUCED

THE COURT GRANTS JUDGMENT in favour of the Plaintiff against the First, Second and Third Defendants in the following terms:-

1. The First and Second defendants are liable to compensate the Plaintiff for 100% of his proven or agreed damages which he suffered

as a result of the gunshot injuries that he sustained in the incident which occurred on 19 July 2009.

2. The aforesaid liability of the First and Second defendants to the Plaintiff is joint and several, the one paying the other to be absolved.

3. The First and Second defendants shall make payment of the Plaintiff's taxed or agreed costs of the merits of the action, such liability to be joint and several as against the Plaintiff, the one paying the others to be absolved. Such costs shall include, but not be limited to the following:

3.1 The costs occasioned by the employment of both Senior Counsel and Senior Junior Counsel, such costs to include but not be limited to their reasonable full day fees for 15, 16, 17 and 19 May 2017 respectively, and costs for the preparation of heads of argument;

3.2 The reasonable costs of consultations between the Plaintiff's attorneys and/or Counsel and/or the witnesses in preparation for the hearing.

4. It is noted that no contingency fee agreement was entered into between the Plaintiff and his attorneys.

5. Plaintiff’s claim against third defendant is dismissed with costs.

____________________

BY THE COURT

REF: DBS/TPK/8115/10

CASE NUMBER: 19911/2011

DINO PETERSON Plaintiff

MINISTER OF SAFETY AND SECURITY First Defendant

alternatively.

MEMBER OF THE EXECUTIVE COMMITTEE

FOR SAFETY AND SECURITY GAUTENG

LEONARD TITUS Second Defendant

SERGEANT NICHOLAAS ROMAN Third

Defendant

DRAFT ORDER

By agreement between the parties the following order is issued:

1. In terms of rule 33(4) of the Uniform Rules of Court the issue of liability (including causation) is to be decided first and separate from the issue of the quantum of the plaintiff's alleged damages, which issue entails the following paragraphs of the pleadings:

1.1 Plaintiff's particulars of claim, paragraphs 1 to 7(both inclusive) and 8.1;

1.2 Defendants' amended plea, paragraphs 1 to 6 (both inclusive).

2. The issue of the quantum of the plaintiff's alleged damages is postponed sine die.

BY ORDER

REGISTRAR