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REPORTABLE

DELIVERED: 19 JUNE 2008

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No 12911/2005

In the matter between:

SAMUEL LESIBA HLAKA First Plaintiff

KWENA PAULINA HLAKA Second Plaintiff

SELLO KENNETH HLAKA Third Plaintiff

vs

MINISTER OF SAFETY AND SECURITY Defendant

J U D G E M E N T

_____________________________________________________________________

DAVEL, A J

INTRODUCTION

It is common cause that Thabo Patrick Hlaka was fatally wounded by a gunshot from Inspector Elias Mapoma’s service pistol after an attempt by Inspector Mapoma to arrest him and after the said Thabo Patrick Hlaka attempted to flee. Inspector Mapoma acted in the course and scope of his employment as a police officer when he attempted to arrest Thabo Patrick Hlaka.

The incident took place on 11 June 2004 at Mokopane near the local Spar Shop.

The plaintiffs are the parents and a brother of the deceased. They instituted a delictual action to recover damages from the defendant. The parties have agreed that the merits and quantum be separated and the trial proceeded on the merits only to establish whether the defendant can be held responsible for the loss suffered by the plaintiffs.

PLAINTIFFS’ CASE

The plaintiffs called three witnesses. The first witness was inspector Lyons. He is a principal investigating officer employed at the Independent Complaints Directorate in Polokwane. He was the investigating officer in a criminal case and took over the investigation from inspector Manamela. He identified the documents in the trial bundle, i.e. A2 (pages 4 to 5) being an abstract from an Occurrence Book and A3 (pages 6 to 9) being an abstract from a Pocket Book which according to his predecessor, Manamela, belonged to Mapoma. Under cross-examination it became evident that he did not verify the documents on pages 4 to 9 with Mapoma himself. He also explained that he compiled the file from pages 12 et seq. The bundle also contained a post mortem report on page 45 and a photo-album on pages 54 to 60.

The second witness called by the plaintiffs was an expert witness, Dr Bhanwar Bhootru. He is a forensic pathologist and performed the medico-legal post-mortem examination on the deceased. He explained to the court exactly where the bullet entered on the right forehead; the exact track of the wound through the frontal bone, through the right frontal-parietal-left parietal lobe of the brain, through the left parietal bone; and the exit wound on the left side of the head.

Dr Bhootra furthermore explained in great detail the significance of the fact that the entry wound was not surrounded by blackening or tattooing of burning. The conclusion that he reached was that depending on the length of the barrel of the gun the firearm could not have been closer to the deceased than 60 cm. Black spots or tattooing will occur around an entry wound if the firearm is closer than 60 to 75 cm, depending on the length of the barrel of the gun. During cross-examination the expert witness was adamant that the shot could not have been fired from above (coming from the top).

The third witness called for the plaintiffs was an eye witness, Arnold Molobatsi. He knew Thabo Patrick Hlaka, (the deceased) because they stayed in the same area. At the time of the incident he was in town at the entrance of the Spar Mall, Potgietersrus. He was approached by the deceased, greeted by him and then the deceased went his own way. He noticed a white car and two male policemen getting out of the car. He saw one of the policeman calling the deceased, speaking to him and then grabbing the deceased by the hand. The deceased managed to free his hand and ran away. He witnessed the policemen chasing the deceased and firing a shot at him. The deceased immediately fell down. This witness also testified in court how the deceased ran up a ramp and he estimated the distance from where the shot was fired to where the deceased fell down to be approximately 15 metres. This then concluded the evidence on behalf of the plaintiffs.

DEFENDANT’S CASE

The only witness for the defendant was inspector Elias Mapoma, an employee of the South African Police Service. He testified in court that he was on special duty on the day of the incident. He and inspector Kekana received a radio report of people suspected of breaking into motor cars. The alleged culprit was identified to them by name and by means of his clothes. They drove towards the side of the Spar and saw the suspect running. He called the suspect by his name, because the suspect was known to him and he even knew where the suspect resided. He commanded the suspect to come to him. He then grabbed the suspect by the hand to put (or bundle) him in the car but according to his version, the suspect hit him, the inspector, with a fist on his eye. This blow on the eye caused the inspector to feel dizzy and he fell whereupon the suspect got hold of his service pistol. According to his version the suspect fled with the firearm and the inspector chased after him, tripped him and a struggle ensued for the possession of the firearm. According to his evidence the gunshot went off in this struggle. The suspect then ran several metres before falling down. The inspector testified that he repossessed the firearm before the deceased finally fell down. It was when the suspect finally fell down that he realised that he was injured.

The inspector was also able to explain why the shot went off during the struggle. According to him there was already one bullet in the chamber and he was well aware of that. He maintained that the safety clip was still on and he suggested that the clip was dislodged during the struggle that ensued. The inspector testified that after the shot went off during the struggle he repossessed the firearm - picked it up from the ground. It was thereafter that the injured suspect got up, ran and fell down again.

The inspector was asked whether it was not very dangerous to chase a suspect well knowing that he is in possession of your service pistol and that the firearm has a bullet in the chamber. He mentioned that he was taught to overpower a person when that person tries to cock the firearm. He also mentioned that he had to follow the armed, escaping suspect to avoid the suspect shooting at him.

Under cross-examination the inspector did not dispute point A on photo 1 as the point where the spent cartridge was found or point B on the same photo as the place where the deceased’s body was found. He further indicated the place (and made a circle) on photo 1 where the struggle took place to be exactly the same place that the eye witness indicated as being where, according to the eye witness’ version, the inspector stood when firing the fatal shot. It was put to this witness, the inspector, that the distance between point A and point B is 19,1 metres but he reiterated that the wounded man ran the distance up the ramp.

Inspector Mapoma under cross-examination identified the abstract of the Occurrence Book (SAPS 70) in the plaintiff’s bundle but he denied any knowledge of the so-called Pocket Book on pages 6-9. He testified that his pocket book would bear his name and police force number and that he would sign each and every entry in his book. He was not even able to identify the handwriting on these pages of the plaintiff’s bundle. This concluded the evidence for the defendant.

LEGAL PRINCIPLES

Both counsel were asked to address the court on the admissibility of the content of the so-called pocket book. Counsel for the applicants forcefully argued that the so-called pocket book formed part of a document that Lyons took over from Manamela. Lyons was asked whose pocket book it was and the answer was that according to Manamela it came from Mapoma. According to counsel for the plaintiffs he merely made a statement of fact – or at the least drew an inference which was stated in court. Adv Wildenboer submitted that if this statement of fact or inference was to be put into question, it should have been done. But this did not occur. Counsel for the defendant never questioned Lyon’s inference.

Counsel for the plaintiffs also emphasized that the so-called pocket book formed part of a document discovered from the defendant in terms of Rule 35 of the Rules of Court. He submitted that no objection was made when Lyons said that “it is the copies of a pocket book and according to my colleague, … Manamela, this was of Inspector Mapona”. He referred to S v Waldeck 2006 (2) SACR 120 (NCD) 126c-e and 132i where hearsay evidence that was not objected to were held to be admissible in terms of section 3(1)(a) of the Law of Evidence Amendment Act 45 of 1988 (sed contra Zeffert, Paizes and Sheen The South African Law of Evidence (2003) 370). Another persuasive argument in favour of the admissibility of the so-called pocket book related to section 3(1)(c)(vii) of the Law of Evidence Amendment Act 45 of 1988 which provides for hearsay evidence to be admitted in the interests of justice. Counsel for the plaintiffs referred to Hewan v Kourie NO and Another 1993(3) SA 233 (T) in this regard and submitted that the evidence should be admitted because the value of the evidence depended not only on the witness that was not called (Manamela), but also to some extent on the credibility of the witness who alleged to have been prejudiced (Mapona). Adv Wildenboer argued that the opponent had an opportunity to determine whether the evidence had been correctly imparted by the witness and furthermore the evidence was contained in a founding affidavit which presented sufficient opportunity to weigh the evidence and find gainsaying evidence.

Counsel for the plaintiffs correctly stated that a finding that the document is admissible is not indicative of its probative value. In this regard he submitted that Mapoma’s failure to answer any questions relating to it, must be weighed when determining the probabilities of its correctness in this regard.

Counsel for the defendant addressed the court on section 3(1) of the Law of Evidence Amendment Act 45 of 1988 and emphasized the fact that hearsay evidence is “evidence whether oral or in writing, the probative value of which depends upon any person other than the person giving such evidence”. In this case the evidence of Lyons on the information retrieved from Manamela according to him fits squarely into the abovementioned definition. He mentioned that the principal reason for not allowing hearsay evidence, is that it may be untrustworthy since it cannot be subjected

to cross-examination (and referred to S v Ndlovu and Others 2002 (6) SA 305 (SCA)).

He also referred the court to the factors that fall to be considered in terms of section 3(1)(c) of the Law of Evidence Amendment Act. He emphasized the fact that the pocket book is a central issue and that the court should therefore be slow to admit it. He also invited the court to enquire into the reason why the evidence was not given by the person on whose credibility the probative value of such evidence depended.

In conclusion counsel for the defendant urged the court to consider all the factors jointly, in a composite manner and not in isolation. He urged the court to reach the conclusion that pages 6 to 9 of the Plaintiffs’ bundle should therefore not be admitted.

After due consideration of all the above mentioned arguments it is found that pages 6 to 9 does constitute hearsay evidence. Mapoma denied any knowledge thereof, denied recognising the handwriting and was under cross-examination not even willing to admit the content thereof to the extent that it was in line with his version of the incident in question. Counsel for the applicants therefore rightly ceased to ask him further questions on the content thereof and the content of those pages in the plaintiffs bundle must be and is disregarded as constituting hearsay evidence.

In essence, in this case there are two mutually destructive versions. Where there is a factual dispute or where a court is confronted with two irreconcilable versions, a court is required to make findings on the credibility of factual witnesses, their reliability and probability. As regard the court’s finding of a particular witness, this will depend on the court’s impression of veracity of a particular witness. In Stellenbosch Farmer’s Winery Group Ltd and Another vs Martell et Cie and Others 2003 (1) SA 11 (SCA) the court identified various factors that should be considered when deciding on the credibility of a witness. But credibility should not be decided upon in abstracto. The credibility of a witness is closely connected and related to the preponderance of probability. In National Employers’ General Insurance Co Ltd vs Jagers 1984 (4) SA 437 (EC) 440I-441A it was stated by Eksteen AJP as follows:

“It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities.”

Where there are two contradictory versions the onus is on the plaintiff to prove on the preponderance of probability that his version is the truth. Such onus is discharged if the plaintiff can show by credible evidence that his version is more probable. Each version has to be tested against the facts which cannot be disputed and against the inherent probabilities so that ultimately one version may be accepted and the other rejected with safety (see Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE)). Although the onus bearing party may not be able to demonstrate the falsity of the other version, the court might still find on all the probabilities that the onus bearing party has succeeded in weighing the scale of probability with sufficient cogent evidence in his favour (see Kamakuhusha v Commander, Venda National Force 1989 (2) SA 813 (VSC)).

SUBMISSIONS AND DISCUSSION

Counsel for the plaintiffs submitted that the evidence of the eye witness Molebatse was not impugned in any way and should be accepted. Counsel also argued that his evidence was corroborated by uncontested facts, such as the distance between the spent cartridge shell and the place where the deceased’s body was found. (Molebatse estimated that distance to be 15 metres and in fact it proved to be 19,1 metres.) Note should also be taken of the fact that Mapoma did not deny the indication that Molobatse gave to where Mapoma was when the shot was fired. The evidence of Dr Bhootra, who testified that the shot was fired at least 60 to 76 cm (or further) away from the deceased also corroborates the evidence of Molebatse.

In contrast, counsel for the plaintiffs indicated that Mapoma’s evidence was unsatisfactory in various ways: Adv Wildenboer argued that his evidence to the effect that he ran after the deceased after he was allegedly assaulted, dizzy and have fallen down, knowing that the deceased was in possession of his loaded firearm with a bullet in the chamber, is highly improbable. He also submitted that the abovementioned behaviour is indicative of an impulsive nature of a shooter as was described by Molebatse. Mapoma’s testimony to the effect that the deceased covered the distance between points A to B on photo 1 up a ramp after suffering a head wound (as was described by Dr Bhootra), is highly improbable.

Counsel for the defendant argued that Dr Bhootra’s evidence that the bullet was fired from a distance of 60 to 75 cm collaborates Mapoma’s evidence that the shot was fired in a struggle in that the distance is an arm’s length. He also submitted that Dr Bhootra’s evidence that the entry wound was in the forehead is in direct contrast with the evidence of Molebatse that the deceased was shot from behind.

In addition to counsel for plaintiffs’ submissions with regard to Molebatse’s evidence it should be noted that Molebatse was a very consistent witness. He answered every question very patiently and when Mapoma’s version was put to him he denied each and every averment stating that he did not see the particular fact and that it did not occur. The witness Molebatse furthermore has no motive to mislead the court.

I am also in agreement with Adv Wildenboer’s interpretation of Dr Bhootra’s evidence in that he testified that the barrel of the firearm was 60 to 75 cm or further from the wound. But Dr Bhootra’s evidence is very significant in that it describes in great detail the route of the bullet through the frontal lobe of the brain. Mapoma entertained the court to believe that it is possible for a human being to run 19,1 metres on an incline with that kind of brain injury before collapsing. I find this highly unlikely or utterly improbable. Mapoma’s version entails that the wounded man fell down and got up and ran further. However, the photos do not reveal any trace of blood along the route that the deceased ran. Counsel for the defendant argued that it could not be denied that the deceased hit Mapoma with a fist on the right eye. It was also testified that this blow was so severe that it caused dizziness. In this regard it seems at least surprising that Mapoma did not complain about an injury to his eye when he was examined after the averred assault on him (see J88 and the Occurrence Book with no reference to the eye injury).

Counsel for the defendant made much of the fact that Dr Bhootra testified that the entry wound was on the right forehead and the exit wound at the side of the head. He interpreted this evidence as being irreconcilable with the deceased being shot from behind. This contention need to be rejected because the fleeing suspect only had to look back over his right shoulder once to check whether he is still being followed to receive the bullet in the right frontal bone with the exit wound exactly where Dr Bhootra described it on the left hand side.

In addition to the submissions made by both counsel it should be noted that Mapoma was an aggressive or at least impatient witness. Most of the time he “answered” the question with yet another question, or gave a vague answer. Mapoma changed his evidence to better fit his version, e.g. according to him he was so severely fisted on the eye that he became dizzy and fell. When he was confronted with the fact that he must have been quick to chase the suspect, he stated that he did not fall to the ground completely. It should also be noted that Mapoma was not the only police officer on special duty when this incident occurred. He was accompanied by inspector Kekana, but this potential eye witness was not called to give evidence in court.

FINDING

The probabilities of plaintiffs’ case outweigh that of the defendant by far. The evidence of Dr Bhootra was relied on by both counsel and assisted the court in more than one way to reach a decision in this case. In line with these findings the following order is made:

ORDER

1. Defendant is liable for any damages that can be proved to have flowed from the actions of Inspector Elias Mapoma on 11 June 2004 relating to the death of Thabo Patrick Hlaka.

2. Defendant is ordered to pay the plaintiffs’ costs of suit, such cost to include the qualifying fees of the expert witness, Dr Bhootra.

___________________________

C J DAVEL

ACTING JUDGE OF THE HIGH COURT

On behalf of the plaintiff: adv. J H Wildenboer

Instructed by: Staatsprokureur, Pta

On behalf of the defendant: adv A T Ncogwane

Instructed by: Schalk Pienaar Prokureurs, Pta

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