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									Reportable
In the High Court of South Africa
(South East Cape Local Division)
Port Elizabeth High Court                      Case No 79/07
                                                           Delivered:
In the matter between

MBULELO JOEL APRIL                                             Plaintiff
and
THE MINISTER OF SAFETY AND SECURITY                            Defendant

SUMMARY: Damages for assault arising out of the police shooting and injuring a person
suspected of armed robbery – the use of deadly force by the police was held not be justified
by s 49 of the Criminal Procedure Act in the circumstances of the case – the quantum of
general damages for a gunshot wound to the thigh and the lower back, was assessed at
R110 000-00, inclusive of contumelia.



JUDGMENT


JONES J:



[1]     This is an action for damages for assault. At the pre-trial conference in

terms of rule 37 the parties entered into certain agreements which curtailed

the issues on trial. They agreed upon the quantum of the claim for special

damages, and they agreed further that the expert reports of three witnesses

on quantum of damages – Dr Forgus, Dr Williams and Mr Meyer – be handed

in as proof of their contents. Evidence was still to be given by the plaintiff

himself with regard to some details on quantum, but there were no disputed

issues to be tried in respect of the quantum of damages, which, in effect,

became a matter for argument. By agreement, the trial proceeded only on

the merits subject to the plaintiff’s right to testify on quantum.



[2]     The plaintiff’s cause of action initially alleged the wrongful and
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intentional action of members of the South African Police Services in firing

multiple shots at him with firearms, and in shooting him twice. (There was

some confusion in the documents about whether he had been shot two or

three times, but during the course of the trial it became common cause that he

had been shot twice.) Towards the end of the trial the plaintiff amended his

pleadings to include allegations that the police also tramped on him and

kicked him on the head, neck and body. At the trial the tramping and kicking

allegations had been disputed, but it was common cause that members of the

police fired shots at the plaintiff and that two of those shots struck his person,

one in the front of the right thigh just above the knee, and the other in the left

lower back. The onus was on the defendant to justify the shooting. But the

onus was on the plaintiff to prove the other allegations of assault. When the

trial commenced the pleadings had not yet been amended to include the

additional allegations of tramping and kicking. At that stage, with the quantum

issue deferred for argument, the evidential onus was on the defendant, and by

agreement between the parties the defendant began.



[3]      In many respects the police version and that of the plaintiff are

irreconcilable and mutually destructive. But certain background facts were

either common cause or indisputable, and they provide a framework for a

proper understanding of what gave rise to the police decision to open fire. I

shall set them out below.

      1. On the morning of 24 April 2006 the serious offences unit of the South

         African Polices Services in Port Elizabeth received information that

         there was to be an armed robbery of a cash in transit vehicle which
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   was to be driven between Despatch and Port Elizabeth later that

   morning, and, further, that the robbers intended to use a white Toyota

   bakkie, a white Volkswagen Golf, and a grey Volkswagen Jetta to

   commit the robbery.

2. The police provided a heavily armed convoy of about six unmarked

   police vehicles to protect the cash in transit vehicle. The convoy was

   deployed behind the cash in transit vehicle when it left Despatch for

   Port Elizabeth. One vehicle in the convoy was a silver Jetta motor car.

   It was last in the line of the police cars following behind the cash in

   transit vehicle. In it were Inspector Kula (the driver), Inspector Makupa

   (the front seat passenger) and Inspector Makaula (in the back seat).

   They were in plain clothes and were armed with their service issue 9

   mm pistols. In addition, Makupa and Makaula had R5 rifles.

3. The plaintiff, a 35 year old man, was employed by the Volkswagen

   motor vehicle manufacturing concern in Uitenhage. He was the owner

   of a white Volkswagen Golf motor car with tinted windows which he

   had acquired in terms of a motor vehicle lease scheme operated by

   Volkswagen for its employees.

4. On 24 April 2006 the plaintiff was due to work the 14h00 shift at

   Volkswagen. At about 10h30 that morning he drove his white Golf

   along the main road from Port Elizabeth towards Uitenhage in the

   vicinity of the turn out to the central business district of Despatch.

5. The policemen in the silver Jetta noticed the Golf and suspected that it

   could have been one of the vehicles involved in the robbery. Some of

   the facts they gave as a basis for their suspicion were disputed, but
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   nobody doubted that they indeed entertained the suspicion.

6. They pulled up in the close vicinity of the Golf where it had stopped

   next to the road facing in the direction of Uitenhage and the turnout to

   Despatch. The Golf sped away in the direction of Despatch. A high

   speed chase then followed.

7. During the course of the chase the Golf was driven up and down Main

   Street in Despatch hotly pursued by the Jetta, the occupants of which

   fired a number of shots at the Golf. In the course of the chase the

   police in the Jetta attracted the attention of two policemen (Inspector

   Potgieter and Sergeant Frank) in a marked police van driving in Main

   Street, and called for their assistance. They followed behind the Jetta.

8. The Golf then drove from Main Street into Du Toit Street. At the bottom

   of Du Toit Street the Golf turned right into Church Road, which was the

   wrong way in a one way street, and collided with an oncoming vehicle.

   The police in the Jetta were directly behind it, and Potgieter and Frank

   in the marked police vehicle were still in the process of following it

   down Du Toit Street.

9. The plaintiff got out from behind the steering wheel of the Golf and fled

   the scene back up Du Toit Street. He ran passed Potgieter’s car in Du

   Toit Street, and turned into an alley just beyond where Potgieter’s car

   had come to a stop.

10. After the collision Makaula got out of the police vehicle. He saw the

   plaintiff getting out of the golf and running away. Makaula fired at least

   7 shots at the plaintiff with his R5 rifle while the plaintiff was still in the

   close vicinity of the Golf, and a number of other shots as the plaintiff
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   ran up Du Toit Street. Frank and Potgieter had alighted from

   Potgieter’s car. Frank fired three shots with his 9 mm pistol, two of

   them warning shots, and one in the direction of the plaintiff. This was

   when the plaintiff was close to Potgieter’s vehicle and about to run into

   the alley.

11. Two of the shots fired by Makaula or Frank struck the plaintiff. One

   entered his anterior right thigh just above the knee. There was no exit

   wound. The other entered the left rear portion of his buttock, fractured

   the left ilium, and exited from the left anterior region of the hip. In my

   view, the evidence is inconclusive about who fired the shot to the right

   thigh. I suspect that it was fired by Makaula while the plaintiff was still

   near to the Golf (which was the plaintiff’s version, supported to an

   extent by the independent witness Geyser), but it could have been fired

   by Frank (who conceded as much but did not really think so). The shot

   to the left buttock was fired by Makaula, and it caused the plaintiff to

   collapse to the ground in the alley. He was subsequently removed from

   the scene and taken to hospital.



[4] The facts pleaded by the defendant to justify the police action in firing

the shots are set out in paragraph 3 of the plea, which reads:

   3.1    The defendant admits that on 24th April 2006 and in the central
          business district area of Despatch shots were fired at the plaintiff who
          was a suspect in a planned cash-in-transit robbery and who unlawfully
          was evading members of the South African Police Services, who were
          in pursuit of the plaintiff.
   3.2    Accordingly, the members of the South African Police Services, acting
          within the course and scope of their employment, acted lawfully as the
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               plaintiff fled when an attempt to arrest him was made and the use of
               force by the said officers was reasonable and necessary in the
               circumstances to prevent the plaintiff from fleeing and to overcome
               resistance and arrest, particularly as the plaintiff had previously, and in
               the course of fleeing, fired shots at members of the South African
               Police Services.



The defendant’s particulars for trial explain that had the plaintiff not been shot

and taken to hospital he would have been arrested in terms of section

40(1)(b) of the Criminal Procedure Act No 51 of 1977 which authorizes a

peace officer to arrest without a warrant any person whom he reasonably

suspects of having committed a schedule 1 offence, which would include

robbery or conspiracy to commit robbery as alleged in sub-paragraph 3.2

above. This does not, however, necessarily justify the use of deadly force –

assault rifles and automatic pistols – in the event of resistance or flight by the

suspect. This is dealt with in section 49 which provides:

       49 Use of force in effecting arrest
       (1) For the purposes of this section-
               (a)     'arrestor' means any person authorised under this Act to arrest
                       or to assist in arresting a suspect; and
        (b)      'suspect' means any person in respect of whom an arrestor
        has or had a reasonable suspicion that such person is
        committing or has committed an offence.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt,
or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him
or her is being made, and the suspect cannot be arrested without the use of force,
the arrestor may, in order to effect the arrest, use such force as may be reasonably
necessary and proportional in the circumstances to overcome the resistance or to
prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this
section in using deadly force that is intended or is likely to cause death or grievous
bodily harm to a suspect, only if he or she believes on reasonable grounds-
        (a)      that the force is immediately necessary for the
        purposes of protecting the arrestor, any person lawfully
        assisting the arrestor or any other person from
        imminent or future death or grievous bodily harm;
        (b)      that there is a substantial risk that the suspect will
        cause imminent or future death or grievous bodily harm                         if
the arrest is delayed; or
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       (c)     that the offence for which the arrest is sought is in
       progress and is of a forcible and serious nature and
       involves the use of life threatening violence or a strong
       likelihood that it will cause grievous bodily harm.

[5]    In order to discharge the onus resting upon him, the defendant must
not only prove that the police suspected on reasonable grounds that the
plaintiff was part of a conspiracy to rob the cash in transit vehicle. This would
justify the arrest. He must also satisfy the requirements laid down in section
49(2). In terms of that section the use of deadly force likely to cause either the
suspect’s death or grievous bodily harm to him is justified only in limited
circumstances. There must be acceptable evidence that the police believed
on reasonable grounds that the use of the R5 rifle and the 9 mm pistol to
prevent the plaintiff from fleeing or resisting – the only justification raised in
the plea – was immediately necessary for their protection or the protection of
any other persons; that there was a substantial risk that the plaintiff would
cause imminent or future death or grievous bodily harm if the arrest was
delayed; or that the offence in question was in progress and was of a forcible
nature involving the use of life threatening violence or a strong likelihood that
it would cause grievous bodily harm (Govender v Minister of Safety and
Security 2001 (2) SACR 197 (SCA)). My view is that even on an acceptance
of the police version of the facts the evidence falls short of meeting the
statutory requirements for the use of deadly force.

[6]    In the first place, the provisions of section 49(2)(a) were not satisfied.

This subsection required proof of a belief on reasonable grounds by Makaula

or Frank that, at the time they opened fire after the plaintiff alighted from the

Golf and ran from the scene, the use of firearms was immediately necessary

for the protection of the police or any other person. There is no suggestion

here of the protection of any person other than the police. We know that the

plaintiff was not armed. Neither of the policemen who fired shots saw or

thought they saw a firearm in his possession. They said that they did not see

his hands at all. They did not testify to any threatening gesture on his part at
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that stage which might have led them to a reasonable belief that he might

have a concealed firearm and that he might open fire with it. Makaula’s case

was that somebody in the plaintiff’s Golf had previously fired shots at the Jetta

through the front passenger window of the Golf. This was before the vehicles

had entered Main Street. On his version it could not have been the plaintiff

because he was the driver. There were no firearms found in the Golf

afterwards. The police suggested that the person who fired these shots must

have thrown his firearm out of the car and shortly afterwards alighted and fled.

Thereafter, six or seven shots were fired at the Golf by the police from inside

the Jetta, through its windows. This was when the cars were in Main Street,

before turning into Du Toit Steet. After the collision in Church Road at least

seven further shots were fired by Makaula at the plaintiff when the plaintiff got

out of the Golf. Makaula fired more shots at the plaintiff as he ran up Du Toit

Street. Frank fired two warning shots into the ground and one shot into the

ground in the direction of the plaintiff just before he ran into the alley. These

shots were all fired without any return fire from the Golf or the plaintiff. What

happened before the Golf and its pursuers entered Main Street, when

somebody other than the plaintiff fired at the Jetta, jettisoned the firearm, and

then alighted from the Golf and disappeared, did not therefore constitute a

basis for a reasonable belief by Makaula that the plaintiff posed an imminent

threat to the police at the time when he was running away, which made it

immediately necessary to use lethal force against him. It is in any event clear

from an objective assessment of the facts disclosed by the evidence that

Makaula was not acting for his own protection or the protection of others at

the time when the plaintiff was shot in the back. The plaintiff, who had already
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been shot in the leg, was patently still attempting to flee, with his back to

Makaula, when the shot was fired which caused him to fall to the ground. At

that stage he did not pose a threat of violence to anybody. Makaula was then

solely intent on preventing his escape.

[7]     Frank did not know what had led up to the pursuit of the plaintiff. He
assumed that it must have been for something serious. He said at one point
that he fired in order to protect Potgieter from the plaintiff, but this explanation
was hollow and unacceptable in the absence of some objective factual basis
for a genuine belief that the plaintiff posed a danger to Potgieter. There was,
further, no suggestion by Potgieter that he needed protection. The tenor of
Frank’s evidence was that although he fired a shot into the ground in the
direction of the plaintiff, he did not fire at him and did not think that his shot
had hit him. This is hardly the state of mind of a policeman acting in
self-defence or the protection of others. It is not possible, therefore, to infer
from his version of the shooting that he had reasonable grounds to believe
that the shooting was immediately necessary for the protection of the police.
[8]     I have not lost sight of the warnings in the authorities against an
armchair judgment of police action which must often be taken quickly in
dangerous circumstances for the effective prevention of crime or the
protection of the public. But I must also not lose sight of the importance of a
balanced evaluation. It is necessary to balance the responsibility of the police
to carry out their difficult duties effectively, on the one hand, against the
constitutional right to life and bodily integrity which lies at the root of the
proper understanding and application of section 49, on the other. The
Constitutional Court in Ex parte Minister of Safety and Security: in re R v
Walters 2002 (2) SACR 105 (CC) has laid down specific guidelines in
paragraph 54 for how the courts should apply the tests of reasonable
necessity and proportionality to the use of potentially deadly force to prevent a
suspect from fleeing from arrest. The section provides justification only for the
least degree of force reasonably necessary to make an arrest in the prevailing
circumstances, the force to be proportional to the threat of violence posed by
the suspect. Shooting a suspect solely to prevent his escape is permissible
only in very limited circumstances, and is not justified unless the suspect
poses an immediate threat of violence or where he is suspected of a crime
involving the infliction or threatened infliction of serious bodily harm and his
arrest cannot be effected by any other means. These criteria are not present
in this case. See also the approach of the Supreme Court of Appeal in
Govender v Minister of Safety and Security supra.
[9]     For much the same reasons, there is no room for a conclusion that the
requirements of section 49(2)(b) were satisfied. The provisions of this
subsection appear to overlap those of subsection 49(2)(a). There were no
objective facts to ground a reasonable belief that the plaintiff would cause
imminent or future death or grievous bodily harm if his arrest was delayed.
[10] Insofar as the requirements of section 49(2)(c) are concerned, there
was no evidence of facts to justify a belief that the offence for which the arrest
was sought was still in progress. Indeed, it turned out that there never was a
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heist of the cash in transit vehicle. No charge was brought against the plaintiff
or anybody else alleging a conspiracy to commit such an offence.
Furthermore, there was no evidence, at the stage when the shots were fired
at the plaintiff, to show that the police could reasonably suppose that the
offence for which the plaintiff’s arrest was sought involved forcible and serious
criminal conduct by the plaintiff, or involved the use of life threatening violence
by him, or a strong likelihood that he would cause grievous bodily harm. The
circumstances under which these shots were fired were far removed from the
possible commission of the alleged robbery of a cash in transit vehicle. There
is no sensible basis for concluding that any of the considerations referred to in
section 49(2)(c) ever crossed Makaula’s mind or Frank’s mind.
[11] As I have already said, my conclusion is that even on an acceptance of
the defendant’s version of the circumstances of the shooting, he has not
discharged the onus of proving that the shooting was justified in terms of
section 49 by reason of the facts alleged in the defendant’s plea. There are
differences between the plaintiff’s version and the defendant’s version of the
circumstances under which he was shot and injured after his Golf came into
collision with the other car in Church Road and what happened immediately
afterwards. In my judgment the probabilities favour the police version that the
plaintiff fled from the Golf without first making it obvious that he was prepared
to submit. The probabilities also favour the police denial of any assault other
than by shooting. There were unsatisfactory features about the plaintiff’s
credibility in respect of these issues. They arise inter alia from unsatisfactory
and improbable elements and explanations in his evidence on this part of the
case, and from his late amendment to include an additional assault which
makes it difficult for me to be sure that this allegation was not a recent
fabrication. In the result I am of opinion that the defendant has discharged the
onus of proving, for the most part, that his version of the facts relating to the
shooting itself should be accepted. I say ‘for the most part’ because there is a
notable exception to this conclusion in respect of one element of the police
explanation to which I shall later refer. Furthermore, this conclusion does not
mean that I can accept nothing of what the plaintiff said about the events after
the shooting if contradicted by the police in the Jetta. Thus, I am satisfied that
the plaintiff asked for a gunpowder residue test to be performed when he
heard of the allegation that he fired at the police, and that he handed a receipt
from a firm called Rim Fix to the police on the scene. These allegations are
supported by other police evidence and by the presence of the receipt in the
police docket.
[12] I shall now deal with the portion of the police version of the
circumstances of the shooting which I do not accept. That is the question
whether somebody fired shots at the Jetta from the Golf before the vehicles
entered Main Street, Despatch. Up to now, I have accepted for the sake of
argument Makaula’s version, supported by Makupa and, obliquely, by Kula,
that somebody in the Golf fired four shorts at the Jetta at that early stage.
However, I am not satisfied that this has been proved on a balance of
probability. Furthermore, the allegation in the plea that it was the plaintiff who
fired the shots cannot be true.
[13] While I have expressed some reservations about the plaintiff’s
reliability as a witness in some respects, this does not justify a rejection of
everything that he said. I am of the view that I cannot reject his denial that he
                                                                               11


fired shots from the Golf and that there was a passenger in his vehicle who
fired shots at the police, threw the firearm out of the window, and then
alighted from his car and ran away. The plaintiff’s case was that he had
travelled to Port Elizabeth early that morning to have a damaged wheel rim
repaired by a firm called Rim Fix. Rim Fix fixed the rim. The plaintiff paid for it
– considerably less than had been quoted by Volkswagen – and was given a
receipt. He then called on a friend, Mathona, who lived in Port Elizabeth and
who had recommended Rim Fix. He showed Mathona the repaired rim and
thanked him for his assistance. By now it must have been about 10h00. He
drove back from Port Elizabeth towards Uitenhage. He was to work the 14h00
shift, and, because he was a group leader at Volkswagen, he wanted to get to
work early. As he drove past an informal settlement close to the turnout to
Despatch he thought he recognised a woman attempting to hitch a lift on the
side of the road as a fellow worker at Volkswagen. He stopped to give her a
lift. The Jetta pulled up behind him. He saw that its occupants were armed
with rifles. He thought he was about to be high-jacked, and pulled off at a high
speed. The chase commenced.
[14] Mr Beyleveld for the defendant realised that the version of the plaintiff’s
visit to Rim Fix that morning was quite inconsistent with the conduct of a
member of a criminal gang about to commit a daring robbery on a public road
in broad daylight. This is particularly so where the robbery would have been
committed very shortly after the plaintiff’s visit to Rim Fix. He therefore sought
to discredit the plaintiff’s whole story as highly improbable and the plaintiff’s
contention that he thought he might be high-jacked as ridiculous. I think that
the plaintiff’s suggestion of a suspected high-jacking is in the same category
of improbability as a suspected robbery of a cash in transit vehicle in broad
daylight on a public road (which did not happen), and a high speed car chase
through the main road of the town of Despatch, also in broad daylight, with
police guns blazing (which did). It must be recognized that these things can
and do happen even though they may be improbable. Further, the fear of
being high-jacked is less improbable than it seems in the light of undisputed
evidence from an official from Volkswagen who explained that there had
recently been a number of cars rented by Volkswagen to its employees which
had been high-jacked, and that for this reason Volkswagen recommended
fitting tinted windows in the hope that it would discourage high-jackers. Hence
the plaintiff’s tinted windows. According to the uncontested evidence the
police were in plain clothes in an unmarked vehicle and their rifles would have
been visible to somebody from outside the vehicle. In my opinion, the
circumstances of this case, the plaintiff’s demeanour in the witness box, and
his personality as revealed by the way in which he gave his evidence, do not
justify a conclusion that the plaintiff’s explanation is so inherently improbable
that it can simply be rejected out of hand. It is not inconceivable that in the
light of these considerations a person of the plaintiff’s background and
temperament, who failed to realise that there were policemen in the Jetta,
may have thought he was about to be high-jacked, and may well have reacted
in fear and panic. There is, furthermore, nothing improbable about the
plaintiff’s evidence of his visit to Rim Fix. On the contrary, it finds support
wherever support can be expected. He produced a receipt from Rim Fix for its
standard charge for repairing a rim, bearing the date 24 April 2006. It was the
first receipt of the day, and was issued before the shooting. The police
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photographs show a repaired wheel in the boot of the Golf, and the spare
wheel mounted on the right front of the car. Mathona supports the plaintiff’s
version to the hilt. He was to all outward appearances a good witness and I
have no reason to doubt his credibility. While there may be some reservations
about the plaintiff’s reliability on some points, there is no reason to doubt his
evidence where it is fully corroborated by a credible witness, a document, and
the other objective facts shown in the photographs. Mr Beyleveld made much
of the fact that the plaintiff and Mathona testified to damage to the left front
wheel, whereas the photographs show that it must have been to the right front
wheel. It is much more probable that this discrepancy was attributable to a
mistake caused by the passage of time rather than to a deliberate but botched
conspiracy involving the manufacture of the entire story of the damaged rim,
which was, after all, a collateral and subsidiary issue of little apparent
importance. Mr Beyleveld further criticized the plaintiff’s case for failure to
identify and call as a witness the unknown woman hitch-hiker whom he
thought was employed by Volkswagen. In my view, this takes the case no
further. The result is that there is no basis for rejecting the plaintiff’s evidence
of his movements that morning before his car was chased by the Jetta.
[15] The plaintiff’s evidence of his earlier movements is important to an
evaluation of the evidence of what happened afterwards. As it turns out, there
was not a shred of evidence to suggest that the plaintiff was in fact a member
of a gang of robbers who planned to rob the cash in transit vehicle that
morning. It is logically impermissible for present purposes to consider the
evidence in the light of the speculative possibility that he might have been a
criminal about to commit a crime. (This is not to say that the police in the Jetta
did not think so at the time, even if the grounds for their suspicion were
flimsy.) We know that in fact the plaintiff is a respectable citizen who had no
criminal record or connections, who had been in steady employment with
Volkswagen for many years, and who had been promoted to a position of
responsibility on his shop floor. His demeanour as a witness (he was from all
outward appearances a good witness) and the impression he created as a
person were quite inconsistent with the theory that he had a secret life as a
member of a robber band. He had been about his ordinary personal affairs
that day, and was on his way to work. None of this is consistent with the
probable actions of a criminal about to commit a dangerous and daring
robbery. He was driving back to Uitenhage from Port Elizabeth. The police
version has him proceeding in the opposite direction, following the cash in
transit vehicle, and then for some inexplicable reason making a sudden U-turn
back towards Uitenhage. This makes no sense. It does not fit any of the
known facts. Would he have used his own car, with his own driver’s licence
next to the driver’s seat to identify him, for the purpose of committing an
armed robbery? The police suggest that he had an armed companion in his
car. Where did he come from, and for what purpose was he there, if the
plaintiff was indeed innocently on his way to work? He had been alone in his
car half an hour or so before the chase, when he left Mathona’s home in Port
Elizabeth. Why would anybody in the plaintiff’s car open fire on a police
vehicle with policemen inside it who were obviously armed with R5 rifles?
There were no drugs or contraband in the car, and nothing incriminating was
found in it afterwards, either to explain why its occupants should desperately
seek to avoid the police, or to suggest that the vehicle might have been about
                                                                             13


to be used for the commission of an offence of violence. What happened to
the firearm used to fire at the police? There was no trace of it afterwards at
the place where it was apparently thrown from the car. What happened to the
person who fired the shots? He is said to have got out of the Golf and ran
away in broad daylight in a busy road with plenty of other traffic and people
about. Surely, somebody must have seen him. Why did the police not seek
to discover his identity afterwards? The plaintiff was never even interrogated
about him. No charges were ever brought against the plaintiff arising out of
the alleged shooting from his car. The defendant made a last ditch effort to
show by expert opinion that a mark on the Jetta was caused by a gun shot.
This failed, and a credibility assessment of the plaintiff must take into account
that he was vigorously, authoritatively, and, so it turned out, unfairly pressed
in cross-examination on the incorrect and insupportable proposition that a
mark on the Jetta showed that the plaintiff’s denial of a shooting from the Golf
was untruthful. There are no objective facts whatever to support the police
version of being shot at. Why was such a vital part of the police story as the
alleged shooting completely omitted from the police-docket statement of one
of the policemen? These questions must be brought into the equation in
considering whether the balance of probability favours the conclusion that
shots were fired from the Golf at the Jetta. I do not believe that there is a
balance in their favour. After the shooting the police were confronted with the
reality that they had shot an innocent man. They must have realised that they
had wrongly jumped to the conclusion that he was a member of a gang of
robbers in the Golf because it had sped off in an attempt to get away from
them. Would there not have been a strong temptation in these circumstances
for them to have added substance to their grounds of suspicion by falsely
adding the story of the shooting? I cannot give a definitive answer that that is
what they did. But I can give this answer: that the defendant has not
discharged the onus of proving this element of his case on a balance of
probability. There are before me two mutually destructive versions. The
defendant must discharge the onus of proving that when his version is tested
against the inherent probabilities, the indisputable facts and the credibility of
all the witnesses, I can conclude with conviction that it is more credible and
probable and should be accepted, and that the other version is false and may
safely be rejected (National Employers Mutual General Insurance Association
v Gany 1931 AD 187, 199; Koster Ko-operatiewe Landboumaatskappy Bpk v
Suid Afrikaanse Spoorweë en Hawens 1974 (4) SA 420 (W) 426-7; African
Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W); National
Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E);
Mabona v Minister of Law and Order 1988 (2) SA 654 (SE) 662D-F; Baring
Eiendomme Bpk v Roux [2001] 1 All SA 399 (SCA) para 7)). The
defendant’s evidence does not in my view pass the test. At best for him, there
are probabilities and improbabilities either way, with no clear balance in the
defendant’s favour. If anything, I think that the balance favours the plaintiff’s
version.
[16] I must therefore leave out of the picture the allegation that somebody in
the Golf fired shots at the Jetta. The only basis for the police suspicion which
remains was that the Golf fitted the wide description of one of the suspect
vehicles, that it had tinted windows to hide its occupants, that the manner in
which it was driven might have attracted the attention of the police, and that it
                                                                               14


sped off in an obvious and desperate attempt to get away from the police in a
manner which suggested that its occupants must have had something to hide.
This set of facts could not give rise to a reasonable suspicion within the
meaning of section 40(1)(b) that the occupants had committed a schedule 1
offence, or that the use of deadly force to prevent the plaintiff’s escape was
justified in the circumstances contemplated by section 49.
[17] There remains the quantum of the plaintiff’s damages. I am not
satisfied that the plaintiff has proved an entitlement to be compensated for
being tramped on or kicked. He is entitled to damages arising out of the
shooting. The parties are agreed that the plaintiff suffered the following
special damages:
 past medical expenses                                                 R9 000.00
 future medical expenses                                              R12 500.00
 loss of income                                                       R10 964.15
                                                                      R32 464.15


[18]   The claim for general damages in the pleadings is made up of a claim

          (a) for pain and suffering, loss of amenities of life, and contumelia in

              the sum of R150 000-00; and

          (b) for emotional shock and psychological dysfunction in the sum of

              R100 000-00.

I find it unhelpful to break up the claim in this way. I prefer to consider as far

as I am able the effect of the shooting on the plaintiff in its totality, and to

assess general damages for the physical and mental consequences of the

shooting for pain and suffering, emotional shock, psychological dysfunction

and loss of amenities arising out of disability by having regard to the total

picture presented by all the evidence. Physical pain and disability, mental pain

and disability, and emotional pain and disability are all natural and sometimes

inevitable consequences of the physical injury which results from an assault

by the infliction of gunshot wounds. They are all equally real. To this must be

added the claim for contumelia under the actio injuriarum, which is for an

injury no less real. It is awarded for a direct and serious invasion of the

plaintiff’s bodily integrity and personal dignity. In making an award for this part
                                                                              15


of the claim it is necessary to recognize (a) a degree of overlap in the various

categories under which damages are awarded, and (b) the duty to avoid

giving double compensation because things which have elements in common

are called by different names. It is therefore necessary to emphasise that an

award for contumelia involving the invasion of bodily integrity is of a different

kind from general damages ordinarily awarded in cases of bodily injury. To my

mind it belongs with an award for an invasion of the right to personal liberty (in

wrongful arrest or imprisonment cases) and for the abuse of legal proceedings

(in malicous prosecution cases) and the indignity and offence to one’s sense

of justice that goes with them. In our modern constitutional era damages for

these violations should not be dismissed as mere balm for wounded feelings,

and they should not be allowed to become fused or confused with damages

for mental pain or anguish, or psychological illness and its consequences. In a

case where a person is wrongfully shot and injured by the police there is a

serious invasion of his person, his integrity, his dignity, and his sense of

personal worth which is distinct from and in addition to physical, mental and

psychological damage and their consequences which arise from bodily injury.

It is given its own protection by the law of delict, and must be given its own

redress. It is nevertheless a consequence of one and the same wrongful act.

It is perhaps better, therefore, to attempt a holistic process by which a single

award of damages is made, provided that the importance of contumelia in its

own right is not overlooked.



[19]   The reports of Dr Forgus and Dr Williams describe the two gunshot

wounds sustained by the plaintiff. The injury to the right front lower thigh was
                                                                            16


demonstrated by an entrance wound above the patella, with no exit wound.

The projectile had fragmented, with a large portion was still palpable at the

head of the fibula on the right side when the plaintiff was examined by Dr

Forgus on 12 June 2006. This was subsequently removed surgically in a

procedure carried out at the day hospital. There is no suggestion of any

residual disability. The second injury was to the lower back. There was an

entrance wound through the gluteus muscle of the left buttock which caused a

compound fracture of the left ilium before the projectile exited in the left

anterior inguinal area. The fracture was repaired in hospital by an orthopaedic

surgeon following an 8 cm surgical incision along the left iliac crest. The

injuries were also both treated by a general surgeon who cleaned and sutured

the wounds. An intravenous drip was set up, X-rays were taken of the chest,

abdomen, pelvis, both hip joints and the right femur, pethidine was given for

pain, and drugs were administered to prevent infection. After 3 days the

plaintiff was discharged from hospital on crutches, which he was able to

discard on 5 May 2006. He was not fit to return to work until 1 September

2006. The fracture of the ilium would have healed in about 6 months. Dr

Forgus considers that from an orthopaedic point of view the injuries are to be

categorized as moderately severe with serious temporary disability, but

without permanent disability or functional sequelae. He noted that on 12 June

2006 the plaintiff still walked with a limp, and was unable to walk quickly. He

experienced pain in the left buttock, the left hip and the lower back, but there

was no wasting, no loss of mobility, and no neurovascular complications. He

thinks that the injuries would have occasioned pain of moderate severity for 7

to 10 days, as would the operative intervention. The main specific amenity
                                                                            17


loss was a temporary impairment of his ability to participate in road running

and playing football.



[20]   In addition to the orthopaedic injuries, the plaintiff has suffered

psychologically. He has developed post traumatic stress syndrome and a

co-morbid major depressive disorder and anxiety, with symptoms of

nightmares involving violence and shootings and killings, insomnia, and a

socio-emotional withdrawal. This has been treated with medication and

psychotherapy, with a positive response. The clinical psychologist Mr Meyer,

who saw him on 29 August 2006, described his psychological complications

as severe for a period of about three months, whereafter they began to

moderate with treatment. He recommended further treatment. His provisional

prognosis was one of guarded optimism, and nothing has been placed before

me which causes me to doubt that the plaintiff will make a full recovery if he

continues with the proposed treatment.



[21]   In my view the combined effect of the physical, mental and

psychological consequences of the plaintiff’s injuries, and the need to bring in

a substantial amount for a serious assault involving a high degree of

contumelia, justifies an award of R110 000-00 for general damages. This

seems to me to be in line with various authorities on the quantum of damages

reported in certain volumes of The Quantum of Damages in Bodily and Fatal

Injury Cases in South Africa by Cortbett and Buchanan and Corbett and

Honey. I have read the authorities to which I have been referred and other

cases as well, but none of them were sufficiently closely comparable with the
                                                                                   18


facts and circumstances of this case to warrant deeper analysis in this

judgment1. The awards in the cases collected in the work referred to are useful as

general guides to the kinds of awards that are being made by the courts, and I have

had regard to them as background for the parameters for an appropriate award in this

case. I have, further, had regard to the present value of the awards in those cases as

given in the The Quantum Yearbook 2008 by Kock, and I have taken into account the

tendency of the courts in recent years towards higher awards than in the past,

especially for contumelia.



[22]    My conclusion is that the plaintiff is entitled to the following award:

    special damages                                                     R32 464.15
    general damages                                                    R110 000.00
                                                                       R142 464.15


[23]    In the result there will be judgment in favour of the plaintiff in the sum of

R142 464.15 with interest thereon at the prescribed rate from a date 14 days

from the date of this judgment to date of payment, together with costs on the

scale as between party and party and interest thereon at the prescribed rate

from a date 14 days from the date of the taxing master’s allocatur to the date

of payment. The costs will include the costs of two counsel from the date of

the employment of two counsel, and will include the qualifying expenses, if

any, of Dr Forgus, Mr Meyer, and Mr Botha. I have been asked to declare


1
 They are Webber v Santam 1980 3 C&B 331; Mangwane v Du Toit 1982 3 C&B 342; Hato v
Minister of Police 1983 3 C&B 409; Naidu v Gengiah 1984 3 C&B 347; Lawsen v General
Accident Insurance Co Ltd 1990 4 C&B J2-1; Molefi v Minister van Wet en Orde 1992 4 C&B
G3-10; Bandle v Bonhomme 1992 4 C&B G3-6; Mehlomakulu v Wakhaba 1995 4 C&B
G3-34; and O’Connell v Damana 200 5 C&B G3-1. Counsel also referred me to
Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V) and the
unreported judgment in Mabena v Minister of Safety and Security Case No 819/2004 TPD
dated 24 January 2008.
                                                                              19


certain witnesses whose evidence or reports were of a specialist nature (i.e.

the expert witnesses referred to above and one Dreyer who gave ballistic

evidence) to be necessary witnesses, but I am not aware of special

circumstances which justify an order requiring the defendant to pay additional

or unusual costs in respect of the plaintiff’s witnesses and I prefer to leave the

matter of reasonable witness expenses in the hands of the taxing master.



RJW JONES
Judge of the High Court
10 February 2008

								
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