---

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE – MTHATHA] Case No. 1090/2007

In the matter between:

Sanela Sandisa Dlanjwa Plaintiff

And

Minister of Safety and Security First Defendant

Station Commissioner Ngangelizwe

Police Station, Mthatha Second Defendant

__________________________________________________________

JUDGEMENT

__________________________________________________________

PETSE ADJP:

[1] The plaintiff instituted an action for damages against the defendants both in her personal capacity as also as mother and natural guardian of her minor children born of her marriage with one Thandikhaya Dlanjwa (“the deceased”) who was at all material times a member of the South African Police Service (“SAPS”) in the employ of the first defendant and under the command of the second defendant.

[2] It is alleged in the plaintiff’s particulars of claim that before committing suicide the deceased, apparently with intent to kill the plaintiff, shot the plaintiff with his state firearm which, it is alleged again, was issued to the deceased by the Police and the bullet discharged from such firearm struck her on the “left lower side of the face and penetrated her chest”. Miraculously the plaintiff survived the attempt to kill her. Having shot the plaintiff the deceased then committed suicide.

[3] This horrific and tragic incident had a sequel to these proceedings in which the plaintiff claims damages for, inter alia, the following :

1. shock, pain and suffering, psychological trauma, disfigurement, disability and loss of amenities of life;

2. past and future medical expenses;

3. loss of future earnings;

4. loss of support both in her personal capacity and as mother and natural guardian of three of her minor children born of her marriage with the deceased.

[4] The matter then served before me on trial and the plaintiff is the only person who has thus far testified. At the conclusion of her evidence the plaintiff closed her case and this provoked an application by the defendants for absolution from the instance. This judgement therefore concerns the defendants’ application for absolution from the instance aforesaid.

[5] Before I deal with the defendants’ application aforesaid I believe that it is apposite even at this juncture to say before all else that in De Klerk v ABSA Bank Ltd and Others 2003 (4) SA 315 (SCA) in para [1] Schultz JA, in his usual eloquence and lucid expression of thought, had occasion to say the following :

“[1] Counsel who applies for absolution from the instance at the end of a plaintiff’s case takes a risk, even though the plaintiff’s case be weak. If the application succeeds the plaintiff’s action is ended, he must pay the costs and the defendant is relieved of the decision whether to lead evidence and of having his body of evidence scrutinised should he choose to provide it. But time and time again plaintiffs against whom absolution has been ordered have appealed successfully and left the defendant to pay the costs of both the application and the appeal and with the need to decide what is to be done next. The question in this case is whether the plaintiff has crossed the low threshold of proof that the law sets when a plaintiff’s case is closed but the defendant’s is not.”

[6] It is my judgment that it would both be profitable and convenient if I were to set out, to the extent necessary, portions of the plaintiff’s particulars of claim that bear upon the application for absolution by the defendants. The relevant portions read thus :

“[A]t all times material hereto :-

1. the plaintiff was married to a certain THANDIKHAYA DLANJWA (hereinafter referred to as “the deceased”);

2. the deceased was the natural father of the minor children;

3. the deceased was employed by the first defendant as a Sergeant in the South African Police Service stationed at the Central Police Station, Fortgale, Mthatha.

4. the second defendant was employed by the first defendant as a policeman in the South African Police Service;

5. the second defendant was in charge of Ngangelizwe Police Station and exercising powers over all the policemen attached to Ngangelizwe Police Station, Ngangelizwe Location, Mthatha;

6. the deceased had a legal duty to maintain the plaintiff and the minor children; and

7. the deceased was in fact maintaining the plaintiff and the minor children during his lifetime;

8. the second defendant and certain policemen at Ngangelizwe Police Station, whose names and further particulars are not known to the plaintiff, had a legal duty :-

1. to protect the plaintiff from being injured by the deceased;

2. to take all reasonable steps to prevent the deceased from shooting the plaintiff; and

3. to prevent the deceased from killing himself.

5.

On 19^th April 2006, at approximately 20H30, and at Ikwezi Township, Mthatha, the deceased:-

1. shot the plaintiff with a firearm on the left lower side of the face and the bullet penetrated the chest; and

2. thereafter shot and killed himself with a firearm.

6.

The firearm used by the deceased in shooting the plaintiff and killing himself was :-

1. owned by the first defendant;

2. under the control of the commanding officer and /

or supervisor of the deceased, whose full names and particulars are not known to the plaintiff; and

6.3 officially allocated to the deceased by the commanding officer and/or supervisor of the deceased, whose full names and particulars are not known to the plaintiff, for use by the deceased in the course and scope of his duties as a member of the South African Police Service.

7.

The shooting of plaintiff and commission of suicide by the deceased was caused by negligence of the second defendant and/or certain policemen, whose full names are not known to the plaintiff, in one or more or all of the following respects:

7.1 they failed to seize the official firearm from possession (sic) of the deceased despite previous reports of violence made by the plaintiff to them against the deceased.

7.2 they failed to seize the official firearm from possession (sic) of the deceased despite previous requests by the plaintiff to do so;

7.3 they became aware that the deceased had threatened to shoot the plaintiff and/or manifested threats of violence towards the plaintiff but failed to take steps;

7.4 they allowed the deceased to continue using the official firearm well knowing that the deceased was unfit to possess a firearm;

7.5 they, after having received reports of the deceased’s acts of violence from the plaintiff, failed to take steps to ensure that the fitness of the deceased to possess an official firearm when not on duty was re-assessed by the relevant authority as required by the provisions of the Provincial Order 3/1998.

7.6 the second defendant allowed the deceased to be in possession of an official firearm even after working hours well knowing that the deceased had adopted a violent attitude towards the plaintiff and was ill-tempered;

7.7 the second defendant and/or certain policeman at Ngangelizwe Police Station, whose full names and particulars are not known to the plaintiff, allowed the deceased to be in possession of an official firearm when not on duty despite reports by plaintiff to them that the deceased had threatened to shoot the plaintiff and thereafter shoot himself;

7.8 they knew that the relationship between the plaintiff and the deceased had significantly deteriorated and the family life of the deceased was not stable but failed to seize the official firearm from possession (sic) of the deceased as required by the provisions of the Provincial Order 3/1998;

7.9 they knew that the deceased was abusing alcohol and had a violent temper but failed to seize the official firearm from possession of the deceased;

10. the second defendant failed to take steps to ensure

that;

1. disciplinary inquiry was instituted against the

deceased; and

2. a Firearms Committee was constituted in

terms of the provisions of the Provincial Order

3/1998 by the relevant authority upon receiving

complaints of assault and pointing of a firearm

from the plaintiff and threats of violence by the

deceased;

10. they failed to ensure that criminal charges were preferred against the deceased for assault and pointing of plaintiff with a firearm;

10. they failed to report violent conduct of the deceased towards the plaintiff to higher authorities in the South African Police Service when they had a duty to do so;

10. they knew that the deceased had suicidal tendencies but failed to ensure that the deceased was deprived of the official firearm as required by the provisions of the Provincial Order 3/1998;

10. they failed to seize the official firearm from possession (sic) of the deceased well knowing that the deceased was a danger to himself, his colleagues, the plaintiff, the minor children and members of the public;

10. they failed to seize the official firearm from possession (sic) of the deceased well knowing that the Magistrate, Mthatha had granted a protection order against the deceased at the instance of and in favour of the plaintiff;

10. the policemen, whose full names and particulars are not known to the plaintiff, authorised, permitted and allowed the deceased to possess an office (sic) firearm when not on duty;

7.16.1 without having first investigated whether the deceased was fit to possess a firearm as required by the provisions of the Provincial Order 3/1998; and

7.16.2 without investigating whether the deceased was having a stable family life or not as required by the provisions of the Provincial Order 3/1998;

10. the deceased was granted permission to possess the official firearm or allowed to possess an official firearm when not on duty without the official procedures prescribed by the provisions of the Provincial Order 3/1998 having first been complied with;

10. they failed to take measures to protect the plaintiff from being injured by the deceased when they had means and ability to do so;

10. they failed to take measures to avoid (sic) the deceased from committing suicide by using the official firearm;

8

The second defendant and/or certain policemen, whose full names and particulars are unknown to the plaintiff :-

8.1 should have foreseen the shooting of plaintiff and commission of suicide by the deceased;

8.2 should have prevented the shooting of plaintiff and commission of suicide by the deceased by seizing the official firearm from possession (sic) of the deceased;

8.3 breached the legal duty they owed to the plaintiff and the deceased by failing to seize the official firearm from possession (sic) of the deceased.

9.

As a result of the shooting of plaintiff by the deceased, the plaintiff suffered the following injuries, namely:-

9.1 an open wound on the left lower side of the face which has resulted in unsightly visible permanent scars;

9.2. serious injuries in the chest, details of which will be revealed by a medico-legal report which will be furnished once the same comes to hand;

9.3 unsightly permanent swelling of the left leg causing it to be abnormally bigger than the right leg;

9.4 fractured bones in the chest;

9.5 chronic pains in the chest;

9.6 stress and psychological trauma;

9.7 shock, pain and suffering, stress and psychological trauma;

9.8 cannot remain standing for an inordinate period.

10.

As a result of the injuries sustained, the plaintiff :-

1. on 19 April 2006 was detained at Nelson Mandela Academic

Hospital, Mthatha, as an in-patient for medical treatment and discharged on 15 June 2006;

2. is still attending medical treatment at Nelson Mandela

Academic Hospital as an out-patient;

3. will in future undergo an operation on the chest.

11.

As a result of the wrongful conduct of the second defendant and/or certain policemen at Ngangelizwe Police Station, Mthatha, whose full names and particulars are not known to the plaintiff, the plaintiff has suffered the following damages in her personal and representative capacities, namely:-

CLAIM A

General damages for shock, pain and suffering;

Psychological trauma, disfigurement, disability,

Loss of amenities of life, deprivation of society,

Love, affection and companionship of her

husband R1 200 000.00

CLAIM B

(i) Past medical expenses R 8 500.00

(ii) Future medical expenses R 50 000.00

CLAIM C

Loss of future earnings : R2 100 000.00

CLAIM D

Loss of support by plaintiff in her personal

capacity R 400 00.00

CLAIM E

Loss of support by plaintiff in her representative capacity :-

(i) Avile R700 000.00

(ii) Ayabulela R700 000.00

(iii) Amahle R700 000.00

12.

12.1 The amount of R1 200 000.00 represents damages

suffered by the plaintiff as a result of injuries she

sustained from the shooting by the deceased. In

particular, the plaintiff sustained severe shock, pain

and suffering and psychological trauma which she is

still enduring and will continue to endure in future

because she has to undergo an operation in order to

heal the injuries caused by the bullet which penetrated

her chest.

12.1.1 The swelling of the plaintiff’s left leg has resulted in unsightly permanent disfigurement and disability which have made it unsuitable for the plaintiff to wear a dress or any outfit which would expose her legs. The plaintiff is bound to wear a pair of trousers at all the time to hide the disfigurement and the disability caused by the unequal legs.

12.1.2 Consequently, the plaintiff cannot wear a dress

in public places because of the embarrassment of the disfigurement left leg. Prior to the injuries, the plaintiff used to enjoy jogging, swimming and tennis, which amenities she can now not engage in anymore as a result of the disfigured leg because she cannot remain standing for an inordinate period.

12.1.3 In addition, the plaintiff has lost the love, affection, companionship and society of the deceased as her husband. The amount of R1 200 000.00 is an amount previously granted by courts in cases of this nature.

12.1.4 It is not reasonably possible to allocate separate amounts in respect of the damages claimed under this heading. A medico-legal report in support of the various damages claimed under this heading will be made available once it comes to hand;

2. The amount of R8 500.00 represents total medical expenses, including travelling expenses, incurred by plaintiff for her treatment at Nelson Mandela Academic Hospital, Mthatha as an in-patient and out-patient upon being discharged from the said hospital;

2. The amount of R50 000.00 for future medical expenses is an

estimated amount for medical and accommodation expenses to be incurred by the plaintiff for an operation she still has to undergo at a hospital in order to heal the injuries in her chest which arose out of the shooting, as stated. It is not possible at this stage to give a precise amount for such future medical and accommodation expenses because the plaintiff has not yet undergone the operation and has been given an estimated quotation of the future operation and its related expenses by a general medical practitioner who is treating her. A medico-legal report will be furnished as soon as it becomes available.

2. The amount of R2 100 000.00 for loss of future earnings

represents earnings which the plaintiff would have received for a period of thirty five years she would have been in active employment had she not been shot and injured by the deceased.

1. As a result of the injuries sustained, particularly

the injury on her left leg which has rendered her

impossible to remain standing for an inordinate

period, the plaintiff has been rendered totally

unemployable. Therefore, she will be incapable of

earning income for the rest of her life.

2. At the time plaintiff sustained the injuries, she

was twenty five years of age and it is estimated that she would have been in active employment until she retired on attaining the age of sixty years, thus engaging her in active employment for a continuous period of approximately thirty five years.

12.4.3 The plaintiff is pursuing studies for a Diploma in Business Management and it is estimated that, once she qualifies, she would have earned a net salary of approximately R5 000.00 per month. The estimated net salary of R5 000.00 per month would have yielded an annual net income of R60 000.00 over a period of twelve calendar months. Therefore, if the estimated annual net income of R60 000.00 is multiplied by thirty five years, the latter being an estimated period that the plaintiff would have been employed and earning income had she not been injured, it would have yielded the amount of R2 100.000.00.

12.4.4 The amount of R2 100 000.00 does not take into account salary increases based on inflation-related salary increments, salary bonuses, promotion and other employment benefits the plaintiff would have been entitled to had she been in active employment until she attained the retirement age of sixty years.

12.5 The amount of R2 500 000.00 for loss of support claimed by the plaintiff in her personal and representative capacities is an amount of support which the deceased would have rendered to the plaintiff and the three minor children through the period that the deceased would have been in active employment in the South African Police Service until

each minor child become self supporting and plaintiff dies.

12.5.1 The deceased, having been born in 1970, would

have remained in the South African Police Service

until he officially retired on attaining the age of sixty

five years. Therefore, the deceased would have

remained in the South African Police Service for a

period of approximately twenty nine years.

12.5.2 At the time of his death, the deceased was a Sergeant

in the South African Police Service earning a net salary of approximately R5 000.00. Therefore, the annual net income of the deceased was approximately a sum of R60 000.00 which, when multiplied by twenty nine years, would have given an amount of R1 740 000.00.

12.5.3 The amount of R1 740 000.00 does not include the

progression of salary of the deceased in South African Police Service based on inflation-related salary increments, salary bonuses, promotions and other employment benefits which the deceased would have been entitled to had he remained in South African Police Service until he officially retired on attaining the age of sixty five years. The deceased was a suitable candidate for promotions and he would have progressed from the official rank of a Sergeant to that of a Director in the South African Police Service.

12.6 Taking into account these salary progressions, it is estimated that the total net income of the deceased from the time of his death up to the date of his official retirement when attaining the age of sixty five years would have been approximately R2 500 000.00. Notwithstanding the income that the plaintiff would have earned had she not been injured, it is the contention of the plaintiff that such salary would not have been significantly increased to an extent that she would not have required any support and maintenance from the deceased.

12.7 Instead, it is the salary of the deceased which would have increased substantially and thus meaningfully augmented the standard of living of the family and the plaintiff would have received the support and maintenance from the deceased as a result of such salary increase. It is also the contention of the plaintiff that in view of the fact that the deceased was a suitable candidate for promotions in the South African

Police Service, such promotions would have significantly increased his income and enable him to provide education to the minor children up to tertiary level and maintain them until they become self-supporting.

12.8 Furthermore, it is estimated that the plaintiff would have contributed a sum of R350 000.00 as maintenance in respect of each minor child until each child becomes self-supporting and the aforesaid amount would have included contribution by plaintiff towards the educational expenses of each minor child.

12.9 An actuarial report detailing the separate income which the plaintiff and the deceased would have earned respectively will be made available as soon as the same comes to hand.

13.

The first defendant is vicariously liable for the wrongful conduct of the second defendant and/or certain policemen at Ngangelizwe Police Station, Mthatha whose full names and particulars are not known to the plaintiff.”

…………………………………………………………… .”

[7] In para 7.5 of the plaintiff’s particulars of claim reference is made to the provisions of Provincial Order no 3 of 1998 issued by the Police Provincial Commissioner of the Province of the Eastern Cape (“the Provincial Order”) on 24 April 1998 which provides the regulatory framework for, inter alia, the criteria that are required to be satisfied before a member can be issued with a state firearm and the circumstances under which a decision to issue a member with a state firearm may be rescinded.

[8] Clause nos 5, 6, 7 and 8 of the Provincial Order, set out, inter alia, the duties of the Committee (that considers and approves applications by members to be issued with state forearms other than for official purposes); appeal against refusal of application or reversal of a previous decision to grant permission to possess a state firearm, the criteria to be considered by the Committee or Area Commissioner in the event of an appeal to the latter and lastly the withdrawal of previously granted permission to possess a state firearm on account of serious misconduct.

[9] Again I consider that it would be profitable if I were to quote liberally from the Provincial Order to the extent necessary to promote a better insight into the regulatory framework of its provisions. The portions of the Provincial Order which are relevant for present purposes read thus :

“5. DUTIES OF THE COMMITTEE

5.1 The committee shall convene on request of the station commissioner or unit commander within five (5) normal working days of receiving an application from a member.

5.2 The committee shall discuss and evaluate the application by the member taking into account the criteria as per paragraph 7 of this order.

5.3 The committee shall then vote on the granting of permission by show of hands.

5.4 The result of the deliberations and vote by the committee shall be made known to the applicant in writing within two(2) normal working days.

5.5 The committee may attach any conditions it deems proper to the granting of permission to possess a state owned firearm by the applicant when the latter is not on duty.

5.6 The committee may out of own accord and at any time re-assess the previous granting of permission after proper notice to the member concerned.

7. In the event of an application being turned down or reversed, reasons for turning down of the application or the reversing of the decision must be stated in writing on the notification to the applicant or subsequent notification of reversal of decision.

7. A copy of the application as well as the decision by the committee must be placed in the personal file of the member on station or unit level.

7. An alphabetical register must be maintained by the committee in which every application, approval, decision, withdrawal as well as conditions applying to the permission must be noted.

7. In the event of a member serving on the committee applying for permission to be in possession of a state owned firearm when not on duty, such a member may not vote or be present during voting on his application by the other members of the committee. In the event of a tied vote, the vote of the station commissioner or unit commander will be the deciding vote.

7. The committee has at its own discretion the right to call in any applicant and to put questions to such applicant in order to enable the committee to come to a decision.

6. APPEAL

6.1 In the event of an application being turned down or reversed, the member concerned may appeal the decision of the committee by submitting a copy of the original application, the reasons for turning down or reversal of the application as given by the committee, as well as his written motivation against the decision of the committee to the relevant area commissioner within seven (7) days of receiving notification by the committee.

6.2 The area commissioner will re-assess the original application in the light of the reasons for turning down the application or the reversing of the previous decision as given by the committee and the motivation for appeal.

6.3 The area commissioner may confirm or reverse the decision by the committee.

6.4 The area commissioner may attach any conditions he deems proper to the granting of permission on appeal.

6.5 The decision of the area commissioner is final.

7. CRITERIA TO BE CONSIDERED BY THE COMMITTEE OR THE AREA COMMISSIONER IN THE EVENT OF AN APPEAL TO THE LATTER

7.1 The following criteria should be taken into account in evaluating the application by a member to be in possession of a state owned firearm when such a member is not on duty.

These criteria must be interpreted as flexible and the committee or the area commissioner dealing with an appeal must take practical realities affecting the member or the station or unit concerned into account. No criterion must be seen in isolation-every applicable factor must be weighed against all the others.

1. The level of animosity shown against members of the service in the area where the applicant resides.

7.1.2 The incidence of attacks against members of the Service in the area.

7.1.3 The social make-up of the area where the member lives in.

7.1.4 The existence of any current or recent threats against the member concerned or his family.

7.1.5 The nature of duties the unit to which the member belongs, perform. (After hour handing of/meeting with informers, regular standby duties, dealing with known dangerous criminals, regular call outs after hours, etc.)

6. The involvement of the member in any high profile case against criminals who might reasonably be expected to retaliate against the member.

7.1.7 The type of firearm the member is asking permission to be in possession of. (Differentiation between handguns and rifles, shotguns or submachine pistols is important since they serve different purposes or have different fields of potential practical application).

7.1.8 Does the applicant have permission to be in possession of any other state owned firearms when not on duty and does the members actually make use of this authority? (Seen in the light of reasons given for the previous application).

7.1.9 The area where the member resides or must regularly travel through. (High density urban or remote rural for example).

10. The service record of the applicant. (Recent convictions on

account of gross misconduct or criminal charges involving an

element of violence should weigh heavy (sic)on the minds of the committee members in making their decision).

7.1.11 Does the member possess a safe or does the member have

access to a safe where he can safely keep the weapon when it

is not on the person of the member?

7.1.12 Does the member enjoy a stable family or personal

life? (Knowledge of family or personal strife must

be taken into account).

13. Is the member prepared to work after hours when called upon by his commanders?

7.1.14 Are there any known incidents where the member placed himself/herself on duty to serve the community when the latter requested his assistance or where he became aware of a crime committed in his close proximity?

7.1.15 Does the member have a history of alcohol or substance abuse for which he or she is receiving treatment (help) or for which treatment (help) is

contemplated?

16. Does the member have a history of depression or

anxiety?

7.1.17 Does the member have a private firearm. (Seen in context of the stated reason for the application – self-defence or after hour work).

8.

8.1 In the event of a member to whom permission to be in possession of a state owned firearm has been given making himself or herself guilty of serious misconduct, the permission can be withdrawn with immediate effect by the station commissioner or unit commander. The relevant area commissioner or the Provincial Commissioner can act likewise in the event of a member attached to the Area Commissioners office or Provincial Commissioners office makes himself or herself guilty of serious misconduct.

8.2 Where a station or unit commander takes action as contemplated in paragraph 8.1, the member whose permission has been withdrawn may make a written representation to the committee regarding the withdrawal. The committee may however not reverse the decision of the station or unit commander if an investigation, departmental hearing or criminal trial regarding the conduct of the member is pending. If such a member is cleared by the investigation, hearing or court the committee can re-assess the permission of the member to be in possession of a state owned firearm when not on duty.” (Emphasis added)

[10] Before I proceed to give consideration to counsel’s rivalling contentions it is necessary to sketch briefly the salient features of the plaintiff’s viva voce evidence albeit only to the limited extent necessary for present purposes.

[11] The plaintiff was born on 27 February 1981 and is currently employed as a manageress by Ideals Outfitters in Mdantsane, East London and resides at NU 9, no 213 Mdantsane Township. At all material times prior to the incident that occurred on 19 April 2006 she was in the employ of Kentucky Fried Chicken in Mthatha and lived together with the deceased whom she married on 3 June 2004 after a brief courtship, at 17 Moses Street, Ikwezi Township Mthatha. The deceased was at all material times in the employ of the South African Police Service (SAPS) and stationed in Mthatha. She was at all material times aware that the deceased was in possession of a firearm which the deceased would at night either put on the floor or the pedestals of the bed on which they were sleeping and which the deceased would carry on his person tucked away in his waistband whenever he was up and about with his business. Three minor children were born of the marriage between the plaintiff and the deceased. Whilst she was still in the employ of Kentucky Fried Chicken her marriage relationship with the deceased was characterised by marital strife due to the fact that she worked shifts some of which required that she be at work until 22h00. In such instances she would reach home at 24h00 as she entirely depended on the availability of public transport from her place of work to home. As a consequence of her returning home from work at such late hours of the night this would invariably provoke a quarrel as the deceased would often ask her where she had been even though he well knew that she had been at work. Sometimes the quarrels would escalate to a point where the deceased would assault her and even threaten her with a firearm. During her pregnancy marital conflicts escalated because the deceased was, inter alia, disputing paternity claiming that he was not the author of her pregnancy.

[12] In February 2006 she arrived back home from work at around midnight. She was accompanied by one Ayanda whom she had requested to fetch her from work. The deceased questioned her about her late arrival and threatened her with assault. Fearing for the worst she fled to the Ngangelizwe Police Station. On her arrival at the Police Station she made a report to a Police Officer in terms of which she, inter alia, told the Officer that the deceased had threatened her with a firearm thus inducing fear in her. The Officer informed her that as he knew the deceased to have a violent disposition he would rather send two other Officers to take her home. On her arrival she was left outside whilst the two Officers went into the house. On their return to her they informed her that they had spoken to the deceased and that it was now safe for her to go inside as the deceased would not assault her. Thereafter they left and from that stage she and the deceased had no further quarrels for a period of approximately a week.

[13] Again in March 2006 she returned home from work at about 16h00 while the deceased was not at home. At a later stage she left with one Vuyokazi who was helping her in looking after her young triplets to look for someone who could borrow her a cellphone charger. When she returned home the deceased was already back at home. A quarrel then ensued because the deceased claimed that he had earlier called her on her cellphone without success. On realising that the deceased was threatening to assault her while advancing towards her carrying a firearm in his right hand which he had fetched from their bedroom she ran out of the room and reported the incident to their landlady. From there she fled together with Vuyokazi to a place of safety where they spent the night. On the next morning she reported the matter to the Ngangelizwe Police Station and requested the Police to seize the firearm that the deceased was in possession of. An entry was then made by the Police Officer who attended to her from which it is apparent that the provisions of the Domestic Violence Act 116 of 1998 were explained to the plaintiff. On the advice of the Officer concerned she went to the local magistrate’s office to apply for a “Domestic Violence” interdict against the deceased. Her request to the Officer to seize the deceased’s firearm went unheeded. At the local magistrate’s office a “Domestic Violence” order was granted at her instance against the deceased together with ancillary relief. Once the order was granted the deceased refrained from assaulting and/or threatening her with assault during which time there was relative calm between them. On the 19^th April 2006 she was with Vuyokazi in the children’s bedroom when the deceased entered. The deceased called her to him but because of the fact that she had seen that the deceased was carrying a firearm in his hand she instead told him that she was scared to go to him. The deceased struck her with his open hands and also struck her on her head with the barrel of the firearm. She then suddenly heard a sound of a gunshot, after which she fell on the floor and lost consciousness which she regained in hospital on the following day. She then realised that she had sustained some injuries. She was also informed by the deceased family members who had visited her in hospital that the deceased had committed suicide the previous day. During the subsistence of her marriage to the deceased she gained the distinct impression that all was not well with the deceased in the latter’s work environment and suspected that the deceased was engaged in some unlawful activities at work for he was from time to time arrested by Police Officers and would sometimes spend a few days in Police custody. The aforegoing is then the thrust of the plaintiff’s evidence.

[14] For the sake of completeness it is, I think, timely at this juncture to pause and mention that during the course of the plaintiff’s testimony certain documents were tendered as exhibits. Of relevance for present purposes are exhibits “E” and “F” whose respective captions are: “Occurrence Book Entry” and “Form 2 [Regulation 4] Application for Protection Order” respectively.

[15] The following entries appear in exhibit “E” which relate to the plaintiff’s complaint to the Police at Ngangelizwe Police Station on 7 March 2006:

• “ Serial No. 408 : 09:10 – Domestic Violence

Report :- B/F Sanela Dlanjwa of No. 17 ……..

• Serial No. 410 : 09h11 – Report :- B/F Sanela Dlanjwa of No 17 Moses Kwezi Township was here complaining of domestic violence by her husband and the Act of domestic violence was explained and understood. She choose to apply for protection Order …………”

[16] Apropos exhibit “F” under paragraph 5 thereof with caption :

“INFORMATION REGARDING ACTS OF DOMESTIC VIOLENCE

Give full details regarding all incidents of domestic violence and also indicate whether firearms or other dangerous weapons were used, what injuries have been sustained and whether medical treatment was obtained :

In the following statement in plaintiff’s own hand writing appears :

“he hit me and he promise (sic) to shoot both of us and he said he is going to leave the babies. Yesterday on the 06.03.06 I supposed (sic) to go to work for my colgue (sic) but my colgue (sic) phoned me not to come to work and I didn’t go to work, my husband go (sic) to work to look for me and I was’nt there. I didn’t phone him because he did’nt have phone (sic). was with my friend talking about umgalelo. I used money for umgalelo to (sic) my needs and after that lost my wallet and I didn’t have money to pay that money for my friend by that time he want (sic) money when I gave him the money he always want (sic) the money to buy beers. He hit me and hit my child (Sinovuyo) he always hit me and promise to kill himself and me.”

For the sake of completeness I should perhaps also make a reference to paragraph 7(n) of exhibit “F” wherein it is recorded that the plaintiff, inter alia, sought, that the deceased be interdicted and restrained from assaulting, insulting, harassing and threatening her.

[17] A few comments are called for in relation to the content of exhibit “F” which are the following :

• that the plaintiff’s first language is isiXhosa;

• the relevance of the first point lies in the fact that the plaintiff’s statement which I have advisedly taken the liberty to quote verbatim in the preceding paragraph in order to underscore this very point has a litany of all kinds of grammatical errors which fact, in my view, clearly belies the assertion by the plaintiff that she is proficient in both written and spoken English.

• that the statement itself is not articulate and in some respects not entirely comprehensible which again is, in my view, a telling reflection of the plaintiff’s lack of proficiency in English.

• that even a cursory glance at the hand-written portion of exhibit “F” it is evidence that at least two different persons filled in such portion which fact in some measure supports the plaintiff’s version (at any rate at this stage of the trial) that the official who attended to her when she, on the advice of the Police, chose to approach the local magistrate’s office for a protection order under the Domestic Violence Act to seek a protection order against the deceased, had pertinently told her which portions of exhibit “F” she must fill in and which ones to leave for the exclusive attention of such official. The portions that the plaintiff was told to ignore were paragraphs 7,8 and 9 of exhibit “F”.

[18] In arguing the application for absolution from the instance Mr Zilwa, counsel for the defendants, went to great lengths to demonstrate why absolution from the instance ought, by all accounts, to succeed. Although Mr Zilwa was on his feet virtually for the entire morning session and painstakingly took the Court through the plaintiff’s evidence I nonetheless consider that the gravamen of his argument may be summarised, without doing any injustice to the bone and marrow of his submissions, as set out below.

[19] Broadly stated the contention by counsel for the defendants in support of the application for absolution was that apart from the fact that the plaintiff was proven to be mendacious she also presented more than one version during her testimony which were contradictory in several material respects. Moreover, so the argument went, her explanations, in her desperate endeavours to reconcile such contradictions were extremely implausible. Counsel stressed in argument that the evidence of the plaintiff that she had on at least two diverse occasions (i.e in February and March 2006) requested the Police to seize the deceased’s firearm was nothing else but a fabrication. In support of this submission reliance was placed on what counsel perceived to be a telling fact, namely: that nowhere does such a request appear both in exhibit “E” (the extract from the Police Occurrence Book) and exhibit “F” (being the application for a restraining order under the Domestic Violence Act 116 of 1998) part of which was filled in by none other than the plaintiff herself more so when this is seen against the fact that the portions of this application which made provision for the magistrate who granted the order to indicate that the plaintiff had indeed requested that the deceased’s firearm be seized were not marked accordingly but left blank as one would have expected to be the case if the plaintiff was being truthful in her assertion that she had indeed made such a request.

[20] Before I consider Mr Zilwa’s argument it is necessary, I believe, at this juncture purely by way of prelude to say a word or two about the nature of the test that is of application when it comes to a consideration of an application for absolution from the instance at the close of the plaintiff’s case.

[21] The principle that should be uppermost in the mind of a trial court in considering the question of whether to grant a judgment for absolution from the instance was enunciated in the leading case of Gascoyne v Paul & Hunter 1917 TPD 170 in a passage appearing at 173 in which De Villiers JP laid down the following formulation :

“At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the Court is, is there evidence upon which a reasonable man might find for the plaintiff?....... The question therefore is, at the close of the case for the plaintiff was there a prima facie case against the defendant Hunter; in other words, was there such evidence before the Court upon which a reasonable man might, not should, give judgment against Hunter?”

In some instances the aforegoing formulation has been construed to mean that the trial court is enjoined to bring to bear on the application for absolution the judgment of a reasonable man and, as stated by Pitman J in Myburgh v Kelly 1942 EDL 202 at 206, “………..

…………………………………………………………………….. is bound to speculate on the conclusion at which the reasonable man of [the court’s] conception not should, but might, or could, arrive. This is the process of reasoning which, however difficult its exercise, the law enjoins upon the judicial officer.”

[22] The principle enunciated in Gascoyne case, supra has been followed in subsequent cases which are too many to cite in this judgment. I will therefore merely content myself by making reference to the dictum of Harms JA, as he then was, which also conveniently sets out the correct approach to an application for absolution in Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92E-93A where the following appears:

“[2] The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms:

‘…. (W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.(Gascoyne v Paul and Hunter 1917 TPD 170 at 173,

Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T))’

This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co. Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G – 38A; Schmidt Bewysreg 4^th ed at 91 – 2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is “evidence upon which a reasonable man might find for the plaintiff” (Gascoyne (loc cit) ) – a test which had its origin in jury trials when the “reasonable man” was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another “reasonable” person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice. ………………………. .”

See also in this regard the judgment of Consolidated News Agencies (Pty) Ltd (in liquidation) v Mobile Telephone Networks (Pty) Ltd and Another [2010] 2 All SA 9 (SCA) in which it was held that the test to be applied by a court when absolution is sought at the end of the plaintiff’s case is whether there is evidence upon which a reasonable person might (not should) find for the plaintiff.

[23] The principle that I have been able to extract from the judicial authorities thus dictates that for present purposes it is not incumbent upon this Court at this stage to examine the plaintiff’s evidence in any detail. In so doing I am, of course, doing no more than giving effect to the well entrenched rule of practice which decrees that ordinarily questions of credibility should not be investigated at this stage of the trial save where the witness(es) has/have palpably broken down and where it is clear that the story that the witness(es) has/have told in court is not true. See in this regard : Gafoor v Unie Versekerings Adviseurs (Edms) Bpk 1961(1) SA 335 (A) at 340D. The facts of this case are, in my view, a far cry from such a situation.

[24] I pause here to emphasize that at this stage of the proceedings I am not called upon to look at the plaintiff’s evidence, as critically as if, in a manner of speaking, I were subjecting it to the prism of a microscope. What I need to do is, if I may indulge in the use colloquial language, to take a step back and look at the broader picture. Thus the question that I need to ask myself is whether the plaintiff’s evidence, even accepting for present purpose that it is contradictory as was contended by defendant’s counsel, is absolutely devoid of any credence. Whilst it may well be so that it is not of sufficient weight such as to constitute a strong and coherent texture of prima facie proof that cannot be broken through it must nonetheless be said that viewed in proper perspective it does, in my view, meet the threshold that is sufficient to defeat an application for absolution from the instance. Suffice it to say that it is my judgment that viewed in its proper perspective plaintiff’s evidence is not inherently improbable and has, at least for the time being, to be taken as true. Thus taking due cognisance of the fact that at this stage of the proceedings I am enjoined by judicial authority to keep uppermost in my mind that in the absence of special considerations, and I am not persuaded that such special circumstances have been shown to exist in hoc casu, I should proceed on the assumption that the plaintiff’s evidence is true. See in this regard : Atlantic Continental Assurance Co. of S.A. v Vermaak 1973 (2) SA 525 (E) at 526 et seq. In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 a telling point was made that at this stage of the proceedings the test to be applied is not whether the evidence adduced by the plaintiff establishes what will finally have to be established at the conclusion of the trial.

[25] Thus, as it is implicit in the dictum of Schutz JA in De Klerk’s case supra, a trial court should be slow to grant absolution at the close of the plaintiff’s case. See also in this regard : Atlantic Continental Assurance Co. of SA, supra at 526 et seq.

[26] In all the circumstances therefore it is my conclusion that it would be entirely inappropriate to grant absolution in the context of the evidence adduced by the plaintiff in hoc casu.

[27] In the light of the aforegoing it is my conclusion that the application for absolution from the instance now made by the defendants must fail. Whilst on this point I may digress to say that I did not understand Mr Zilwa to contend that even if the evidence of the plaintiff were accepted in its entirety no liability of whatever kind would ensue regard being had to the case pleaded by the plaintiff in her particulars of claim. Rather I understood him to contend that the version of the plaintiff such as it was presented, is riddled with a multiplicity of contradictions to such a degree that the resultant multiple versions that are now before this Court are not only incapable of being reconciled with each other but also render each one of them whether considered in isolation or cumulatively totally devoid of any credence. However, at this stage of the proceedings I am, if I may say so, fortunately spared the unenvious task of making a definitive finding on this score.

[28] It remains now to address the issue of costs regard being had to the fate that the defendants’ application for absolution should suffer for all the reasons set out above. I interpose here to mention that at the behest of the Court counsel on both sides filed written heads of argument addressing the question of whether in the event that the defendants’ application is refused the costs occasioned thereby should be made costs in the cause. As was to be expected counsel adopted diametrically opposed position on this aspect of the matter. Counsel for the defendants submitted that such costs should be made costs in the cause whereas counsel for the plaintiff, as was naturally to be expected, argued that such costs should be for the account of the defendants.

[29] It is thus necessary to re-state the fundamental principle of our law, trite as it is, that as a general rule the party who succeeds should be awarded its costs and that this rule should not be departed from except on good grounds. Accordingly if there are no such grounds, then ordinarily the Court should apply the general rule. The judicial authorities on this topic are legion and that being so no useful purpose would be served by citing them in this judgment save to emphasise the fact that in any given situation an award of costs is at the discretion of the court to be exercised judicially with due regard to all the circumstances of a particular case. Whilst on this topic I believe it is necessary to emphasise that our courts have always been consistent in proclaiming that in exercising its discretion of whether to award costs or not a court should not (to borrow the phraseology used by Sachs J in Biowartch Trust v Registrar, Genertic Recourses and Others 2009 (6) SA 232 239 (CC) at para [9] “be straitjackted by inflexible rules”. Whilst this dictum was made in the context of constitutional litigation I can see no reason in principle or logic why the same considerations should not apply in hoc casu.

[30] I have given anxious consideration to the rivalling contentions of counsel with particular regard to the question of whether it would be fair and equitable to order that the costs attendant on the defendants’ application for absolution from the instance ought to be made costs in the cause or awarded in favour of the plaintiff regard being had to the fact that the defendants’ application for absolution has failed. This question was, as alluded to above, pertinently raised by the Court and counsel had the opportunity to present heads of argument on this score at the behest of the Court.

[31] Having given the matter my anxious consideration in the light of the rivalling submissions by counsel it is my judgment that the interests of justice would be best served if the costs are ordered to follow the event which is to say that they must be awarded in favour of the plaintiff as the successful party. My reason for coming to this conclusion is two fold. In the first place the defendants’ application for absolution from the instances took virtually the whole day when it was argued which then means that the finalisation of the trial has been prolonged by an extra day. This important consideration militates, in my view, against the grant of a costs order of the kind sought by defendants. On the contrary having carefully weighed up all relevant factors bearing upon the question of costs I am more than satisfied that the costs order spelt out below would not only be eminently reasonable but also fair and just in the circumstances.

[32] In the second place I am constrained to say that it would be an affront to my sense of justice if, having ruled that those costs should be costs in the cause, the plaintiff were to be unsuccessful at the conclusion of the trial once the defendants have presented their version, for the trial has, as already mentioned above, been prolonged by an extra day whilst it would have taken a day less to conclude had it not been interrupted by the defendants’ application for absolution from the instance at the close of the plaintiff’s case. This is not to say that the defendants are being penalized for making their application for absolution from the instance which has now turned out to have been ill-advised in the light of what has already been said above but it is more a recognition of the fact that taking an objective view of the matter the interests of justice dictate that it would be fair and equitable that the costs attendant upon the defendants’ application for absolution from the instance should be for the account of the defendants in the terms spelt out in the order made below.

[33] In the light of the fact that the application for absolution took virtually the whole day my inclination which, if I may say so, has hardened into a conviction is that I should exercise my judicial discretion in relation to the issue of costs in favour of awarding the costs that were incurred on the day on which the application was argued to the successful party, namely: the plaintiff. In coming to this conclusion I have done no more than simply pay due heed to the instructive dictum by Holmes JA in Ward v Sulzer 1973 (3) SA 701 (A) at 706 G and thus taking cognisance of the doctrine of stare decisis in which the learned Judge of Appeal had occasion to express himself in these terms :

“In awarding costs the court has a discretion, to be exercised judiciously upon a consideration of all the facts; and as between the parties, in essence it is a matter of fairness to both sides”. (Emphasis added)

[34] A related issue to address is the question of whether costs of two counsel should be allowed which is what leading counsel for the plaintiff Mr Dukada urged upon me. On his part Mr Zilwa sought to persuade me that the plaintiff was over-cautious and unreasonable in engaging two counsel. The foundation for this submission was that the issues raised in this matter are now settled and that the litigants were not required, as Mr Zilwa put it, “to traverse unchartered waters.” Whilst this may well be so I believe that the stakes in this action were too high for both parties and that the employment of two counsel by the plaintiff was thus not unreasonable. Whilst the defendants are represented by one counsel it must be understood that Mr Zilwa is not, so to speak, “a new kid in the block” but junior counsel of considerable years in practice with a wealth of experience in matters of this nature. It therefore seems to me that taking cognisance of all factors relevant to the question of costs more particularly the magnitude of the plaintiff’s claim against the defendants coupled with the importance of the matter to the litigants, this is a proper case which merits the award of costs consequent upon the employment of two counsel by the plaintiff. That being so I thus propose to, as it were, tack onto my order below a rider reflecting this fact.

[35] For all the aforegoing reasons therefore the following order shall issue :

1. The application for absolution from the instance is dismissed.

2. The costs of the application shall be for the account of the defendants jointly and severally the one paying the other to be absolved such costs to include the costs occasioned by the employment of two counsel.

______________________________

X. M. PETSE

JUDGE OF THE HIGH COURT

TRIAL HELD ON : 8, 9 AND 10 MARCH;

30 APRIL 2010

DELIVERED ON : 12 AUGUST 2010

COUNSEL FOR THE PLAINTIFF : MR N.K. DUKADA SC

(with him MR M.N. HINANA)

INSTRUCTED BY : FIKILE NTAYIYA AND ASSOCIATES

MTHATHA

COUNSEL FOR DEFENDANTS : MR P.H.S. ZILWA

INSTRUCTED BY : THE STATE ATTORNEY

EAST LONDON

---