South Africa: Eastern Cape High Court, Grahamstown

You are here:
SAFLII >>
Databases >>
South Africa: Eastern Cape High Court, Grahamstown >>
2016 >>
[2016] ZAECGHC 41
| Noteup
| LawCite
Zulu v Mvula and Another (CA342/2015) [2016] ZAECGHC 41 (27 May 2016)
Download original files |
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO: CA 342/2015
DATE HEARD: 27/05/2016
DATE DELIVERED: 03/06/2016
In the matter between
MANDLA ZULU APPELLANT
and
MAJOLANDILE MVULA 1ST RESPONDENT
THE MINISTER OF SAFETY AND SECURITY 2ND RESPONDENT
JUDGMENT
ROBERSON J-:
[1] The appellant, plaintiff in the court a quo, instituted action in the Port Elizabeth Magistrate’s Court against the respondents, as first and second defendant respectively, for damages arising from a gunshot wound to his hand. He alleged that the first respondent, acting in the course and scope of his employment with the second respondent, had intentionally, alternatively negligently, discharged his firearm, thereby injuring the appellant. Both respondents defended the action. The first respondent denied that he had discharged his firearm and injured the appellant, and denied the allegation that he had acted in the course and scope of his employment with the second respondent. The second respondent pleaded no knowledge of the shooting and injury, and denied that the first respondent had acted in the course and scope of his employment with the second respondent. It was common cause at the trial that at the time of the shooting the first respondent was a member of the South African Police Service, attached to the VIP Protection Unit, and was on standby duty.
[2] When the trial commenced, by agreement an order was granted that the merits should be decided separately, and the trial proceeded on the merits only. The presiding magistrate reserved judgment. Unfortunately he apparently absconded before delivering judgment. The parties agreed that another magistrate could give judgment based on a transcript of the record. This was a reconstructed transcript, based on the appellant’s attorney’s notes, the court file and recordings having been lost. The parties further agreed as follows:
“They do not expect such judicial officer to adjudicate upon or take into account the demeanour of witnesses who testified at the trial, and confirm that the transcribed evidence as submitted reflects an accurate account of the testimony and that both witnesses who testified may be considered to be of equal credibility for purposes of assessing the facta probanda.”
The two witnesses who testified were the appellant and the first respondent.
[3] The plaintiff’s claim was dismissed with costs and this appeal lies against that decision. The first respondent abides this court’s decision.
[4] The appellant testified that on 25 September 2009 he attended a party at the house of one Mrs Gobinca. The first respondent arrived and the appellant saw him fighting with one Maneli. The appellant attempted to intervene and the first respondent, who had consumed alcohol, produced a firearm. The appellant asked him to stop what he was doing and the first respondent put the firearm back in its holster. The appellant asked the first respondent to hand over the firearm so that someone could keep it but the first respondent refused. The appellant then asked him to remove the magazine and the first respondent complied and gave the magazine to Mrs Gobinca for safekeeping. This was because the first respondent had been consuming alcohol. During the course of the evening the first respondent asked the appellant to return the magazine as he wanted to go home. The appellant retrieved the magazine from Mrs Gobinca and returned it to the first respondent.
[5] Later in the evening the appellant learned that Maneli was assaulting his children in his house, which was situated opposite the house of Mrs Gobinca. Maneli’s wife sent a child to request the appellant’s intervention. When the appellant arrived there, he found one of the children trying to escape through a window. All the doors of the house were locked. The appellant entered the house through a window and found Maneli in possession of a knife. While the appellant was attempting to take the knife away from Maneli, he heard gunshots. He did not know where they came from. Maneli did not have a firearm and at this stage had already calmed down.
[6] The appellant heard a knock on the window and said whoever was knocking should stop in case the window was broken. He saw the first respondent outside the house and asked him why he was shooting. The first respondent had his firearm with him at this stage. The first respondent initially denied firing any shots and then asked “did I strike you”. The appellant said that he had and asked him why he had shot him. The first respondent gave no explanation.
[7] The first respondent then asked the appellant to accompany him to a person who worked for the Defence Force, who could remove the bullet from his hand, which at this stage had begun to swell. The appellant agreed because he was in great pain, although at this stage the police and ambulance service had been called. This person was not able to remove the bullet and a further possible source of help was not at home.
[8] The record is not clear as to precisely where they went thereafter but it seems they eventually returned to Mrs Gobinca’s house. They learned that Maneli had been shot and was at his neighbour’s house. Thereafter the police arrived and they found the first respondent at the broken window, presumably the window of Maneli’s house. The appellant asked the first respondent how many bullets were in his firearm. He said that there were 15 and when asked how many were left in the firearm, he said it was 11. He had no explanation for what had happened to the unaccounted for bullets. The police took the first respondent’s firearm away from him and took him away in a police vehicle.
[9] The first respondent testified that he was on standby duty that evening and could have been called out for duty at any time. He agreed that as a police officer he had a constitutional obligation to uphold the values of the Constitution, including the investigation and prevention of crime and the protection of members of the public against criminal activities. He further agreed that he was bound by these obligations even when off duty, by virtue of him being a police officer. He had to carry his police identification card with him at all times in case he had to identify himself as a police officer.
[10] He went to the party at the request of the appellant and was in possession of his service firearm there. He consumed alcohol and was intoxicated. He knew that he should not have been in possession of his firearm while intoxicated but that evening when he wanted to leave the firearm at the house he shared with his brother, he found it locked and he did not have his keys. He was aware that if a person consumes alcohol he should ask the owner of the house to keep his firearm. He removed the magazine, which had 15 bullets, and the firearm without the magazine was locked in a wardrobe by Mrs Gobinca. He added that the main reason for locking the firearm away was because the appellant had introduced him at the party as a VIP protector and he thought that someone might take his firearm. Mrs Gobinca told him that if he wanted his firearm back he should approach her with a witness.
[11] He remained at the party and was not involved in an incident where the appellant intervened. When he wanted to go home, he could not find the appellant, who he wanted to be his witness. He decided to wait for the appellant who eventually arrived and reported that he had been injured by a piece of corrugated iron. The first respondent told the appellant that he thought the appellant had been shot. The appellant did not want to go to hospital and refused to say how or where he had been shot. The respondent said that he had a friend in the army who could help. This friend was not prepared to assist and the appellant and the first respondent returned to Mrs Gobinca’s house. Mrs Gobinca returned the first respondent’s firearm to him.
[12] Maneli’s daughter arrived at Mrs Gobinca’s house and reported that Maneli was assaulting family members. The first respondent and the appellant went to Maneli’s house to render assistance. The first respondent felt it was necessary to protect the persons who were being assaulted, even though he was under the influence of alcohol. He and the appellant found the doors locked. The first respondent then broke the window of the house with the butt of his firearm. He did so lawfully in order to protect the children. When asked if he had gone to the house in his capacity as a policeman he said that he went there as a member of the community. He agreed that if he had seen a crime being committed he would have been entitled to arrest someone as provided for in section 40 of the Criminal Procedure Act. He denied firing any shots at the appellant and denied that he had discharged his firearm that evening. He also denied having apologised to the appellant and telling him that he had 15 bullets in his firearm. He was arrested and his firearm was confiscated. No-one else had their firearm confiscated that evening. He agreed that a police photographer had taken photographs of bullets outside but did not know where the bullets came from.
[13] The magistrate found that the appellant had failed to discharge the onus to prove that the first respondent had fired the shots which had injured the appellant. In his judgment he said that the evidence was circumstantial and, applying the well known test in R v Blom 1939 AD 188 at 202-203, he found that the inference that it was the first respondent who had shot the appellant was not the only reasonable inference to be drawn from the proved facts. In applying the test which is applied in criminal matters, the magistrate evaluated the evidence and reached his conclusion on the wrong basis. The approach he should have applied was that which was stated in Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA) at para [19] (authorities omitted):
“.……………… it is important to bear in mind that in a civil case it is not necessary for a plaintiff to prove that the inference that she asks the court to draw is the only reasonable inference; it suffices for her to convince the court that the inference that she advocates is the most readily apparent and acceptable inference from a number of possible inferences ………….”
[14] In the present matter it was not in dispute that the appellant was shot in the hand, that the first respondent was in possession of a firearm that evening and that he was present at Maneli’s house. On his own version he broke the window of Maneli’s house with his firearm. There was no evidence that anyone else was in possession of a firearm that evening. It was submitted on behalf of the second respondent that there was evidence that there was a second firearm involved that evening. Reference was made to the appellant’s evidence when the following question was put to him in cross-examination:
“Mr Maneli was involved where the firearm was pulled out by him?”
The appellant’s answer was “yes”. I do not understand this question or answer to mean that a firearm was produced by Maneli. The appellant’s evidence in chief concerning the initial altercation when he intervened was that it was the first respondent who produced a firearm. His later evidence was that Maneli had a knife and did not have a firearm.
[15] Taking into account the above factors, in my view the probabilities are overwhelming that it was the first respondent who shot the appellant. Although the appellant did not see who fired the shots, the possibility that someone other than the first respondent shot him is, in all the circumstances, extremely remote. The inference which is “the most readily apparent and acceptable”, is that it was the first respondent who shot the appellant.
[16] In view of the first respondent’s denial that he shot the appellant, no grounds of justification were relied upon. The shooting was therefore wrongful and, at the very least, negligent. In that case the first respondent’s liability for the appellant’s damages was established.
[17] Mr Paterson, who appeared for the second respondent, fairly and correctly did not attempt to submit that, in the event of it being found that the first respondent had shot the appellant, the second respondent was not vicariously liable for the first respondent’s conduct in shooting the appellant.
[18] In K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC) at para [32] the following was stated:
“The approach[1] makes it clear that there are two questions to be asked. The first is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective consideration of the employee’s state of mind and is a purely factual question. Even if it is answered in the affirmative, however, the employer may nevertheless be liable vicariously if the second question, an objective one, is answered affirmatively. That question is whether, even though the acts done have been done solely for the purpose of the employee, there is nevertheless a sufficiently close link between the employee’s acts for his own interests and the purposes and the business of the employer. This question does not raise purely factual questions, but mixed questions of fact and law. The questions of law it raises relate to what is “sufficiently close” to give rise to vicarious liability. It is in answering this question that a court should consider the need to give effect to the spirit, purport and objects of the Bill of Rights.”
[19] In my view in the present matter the answer to the first question must be “no”. The first respondent acknowledged that he was bound by his constitutional obligations even when off duty and that while on standby duty he could be called out at any time. On his own version he went to Maneli’s house to protect persons he had been told were being assaulted. He used his service firearm to break the window, presumably to gain entry to a locked house. Subjectively he was not acting solely for his own purposes. In fact his own evidence demonstrates that he was not acting at all for his own purposes. As was submitted on behalf of the appellant, the first respondent did what a policeman should do.
[20] In Minister of Safety and Security v Luiters [2006] ZASCA 11; 2006 (4) SA 160 (SCA) an off duty policeman, in the course of pursuing persons who had attempted to rob him, had shot an innocent third party with his service pistol. The Minister was found to be vicariously liable. At para [23] Navsa JA said:
“In pursuing the persons who had attempted to rob him, he could hardly be unmindful of his authority as a policeman. After all, he was using his service pistol.”
[21] Similarly in the present case, although the first respondent said that he was acting as a community member, in answering the call for help and using his service firearm to break the window, he could hardly have been unmindful of his authority as a policeman.
[22] It follows that the appellant proved that the second respondent was vicariously liable for the actions of the first respondent in shooting and injuring the appellant.
[23] Order
[23.1] The appeal succeeds with costs. In the event of the costs being taxed, it is recommended that the Taxing Master/Mistress takes into consideration the costs incurred in the reconstruction of the record.
[23.2] The judgment of the magistrate dismissing the appellant’s claim with costs is set aside and substituted with the following order:
1. “It is declared that the first and second defendants are liable to the plaintiff for the damages suffered arising from a gunshot wound inflicted by the first defendant on 25 September 1999. Such liability is to be joint and several, the one paying the other to be absolved.
2. The first and second defendants are ordered to pay the costs of the trial on the merits, jointly and severally, the one paying the other to be absolved.”
[23.3] In the event that the parties are unable to agree on the quantum of the appellant’s damages within 30 days of the date of this order, the matter is remitted to the magistrate for trial on the issue of quantum.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
SCHOEMAN J;-
I agree
___________
I SCHOEMAN
JUDGE OF THE HIGH COURT
Appearances:
For the Appellant: Adv P E Jooste, instructed by Dold & Stone Incorporated, Grahamstown
For the Second Respondent: Adv N M Paterson, instructed by the State Attorney, Port Elizabeth
[1] A reference to the test formulated for determining vicarious liability in Minister of Police v Rabie 1986 (1) SA 117 (A) at 134C-E