---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2014/33324

In the matter between:

BONGANI SITHOLE                                                                                            PLAINTIFF

and

THE MINISTER OF POLICE                                                                            DEFENDANT

 

J U D G M E N T

 

MUDAU, J:

[1] The plaintiff instituted an action for damages against the defendant, the Minister of Police for unlawful assault. The plaintiff seeks to hold the defendant vicariously liable for the conduct committed by members of the South African Police Service, who it is alleged, were acting within the course and scope of their employment with the defendant on the basis that they acted wrongfully and negligently, when they shot the plaintiff on 22 October 2013, at or near the M1 South Highway, Joe Slovo off-ramp, Johannesburg.

[2] By agreement between the parties, the trial was confined to the merits of the claim, with the question of quantum standing over for later determination, if necessary.

[3] The evidence by the plaintiff in brief follows hereunder. On the date in question he was employed to operate a VW Crafter 22 seater motor vehicle, with registration no BT 10 LV GP as a taxi between Johannesburg and the Bosman taxi rank, Pretoria. Plaintiff was with a passenger or assistant, a fellow taxi driver, Peter Masilela by the time of his arrival at Bosman taxi rank at about 9 am. He drove past a clearly marked police BMW motor vehicle which was stationary outside the taxi rank. Upon driving into the rank, on his version, he requested Masilela to go and buy him airtime. In the meantime he proceeded to pick up passengers without having queued.

[4] After picking up passengers, a lady with her child, he was approached by two men; one went to the passenger side of the vehicle and ordered the lady out of the taxi. The second man approached the driver’s side, banged his hands on the taxi and told him that he was not supposed to load passengers where he was and insulted him. As a result, he drove out of the taxi rank and stopped at the stop sign. It was then that he heard a police siren from the vehicle. When he looked through the mirrors of his motor vehicle, the police BMW motor vehicle he saw earlier was flashing its lights signalling him to stop, which he did. However, the police did not approach him. He pulled off from where he had stopped, but the police sounded their siren once more and as a result, he pulled off the road and waited for the police again but they did not approach him. Instead there were people emerging from nearby combis carrying firearms. He remembered being told by his taxi boss that the previous driver was shot and killed “by the police”. He was scared and as a result; sped away from the scene at high speed, joined the freeway after the first set of traffic lights towards Johannesburg, leaving his companion behind with the police in pursuit. He had not stopped at the set of traffic lights.

[5] He later contacted Masilela and told him that he fled from the taxi rank and that the police were following him. Masilela advised him to flee. He also contacted his taxi boss, Zondi, who also advised him to flee. There was no police station in Pretoria that he knew. He had in mind to drive himself to the Hillbrow police station and to ask for intervention. He was about to off-ramp towards Hillbrow police station on Joe Slovo Drive when he found it blocked by many police vehicles. Other than police vehicles there was a police helicopter as well. From that point gunshots followed with his vehicle still in motion after which he then stopped. He exited his motor vehicle with his hands up after being struck on the back of his head. He then went back and lied inside his taxi but the gunshots continued.

[6] The shooting continued and he exited his vehicle again with his hands held up but was struck on his legs as a result of which he fell to the ground. It was at that point that a white police officer who stood in front of the police helicopter ordered that the shooting be stopped. Paramedics arrived shortly thereafter and attended to him. He was later transported to a nearby Johannesburg hospital where he was admitted overnight and received treatment for the gunshot wounds he suffered.

[7] During cross-examination, it was his evidence that he could not recall the colours of Masilela’s clothing that day. He could not dispute that Masilela was adorned in khaki colours that day. Upon being confronted that he could not pick up passengers without queuing, it was his evidence that he did not remonstrate with his accusers. People who emerged with firearms came from all directions. At that point a police motor vehicle was behind his vehicle. When it was put to him that the man in khaki armed with a gun was in fact his companion, Masilela, he disputed this. When asked why he did not seek refuge at the nearby Kgosi Mampuru prison, he stressed that it would have brought more trouble as his boss had warned him not to stop anywhere, but at the police station. He was constrained to concede that along the way as he fled towards Johannesburg, numerous police vehicles joined in the chase from all the on-ramps starting with Eufees Road, Pretoria, along the N1 South freeway all the way past Midrand and the Sandton area, until he was forced to stop on Joe Slovo Drive.

[8] The plaintiff maintained during cross-examination that it was his first time driving the Pretoria taxi route, he did not know any police stations in the area and was for that reason, determined to only stop at Hillbrow police station. Upon being asked why he did not stop upon being ordered to do so by police officers who had joined in the chase in the various on-ramps supported by two helicopters as his fear concerned the police in the BMW he initially came in contact with, he testified that he did not trust any of the police who had joined in the chase as he did not know how they came into the picture.

[9] The plaintiff could not dispute that the pursuing BMW police car at one stage drove on the freeway alongside his, and that, the police gestured to him to pull off the road. It was also put to him that he was eventually forced off the road and that he did not stop of his own accord. He responded that he stopped because of the traffic jam, the presence of the police helicopter and the subsequent shooting that ensued. He was invited to look at exhibit C, photo five, which clearly showed that his vehicle was forced to stop by a police motor vehicle from the Alexandra Tactical Response team. The plaintiff, was as a result, at pains to concede that his intention was to drive anywhere to find an opening for him to flee. His intention was to only stop where he realized it was safe to do so. Upon being asked why he did not call the police emergency number, 10111, for help, he testified that that never occurred to him. Neither could he dispute that the reason for the police presence at the taxi rank was because of the murder of a queue marshal a week before this incident as a result of taxi related violence.

[10] The plaintiff had no comment when the version of the defendant was put to him to the effect that two police officers from the BMW at the Bosman taxi rank had approached his vehicle upon seeing the commotion, and established that he had not joined the pick-up queue as was standard practice. Neither could he comment when it was put to him that Constable Moraba had approached him with a view to interview him in that regard but he pulled off with his vehicle with a front seat passenger. It was also put to the plaintiff that the two police officers had to run back to join their colleague in the BMW and had not sounded any siren at that stage. It was put to him that the police eventually fired towards the direction of his motor vehicle in response to shots being fired from his vehicle which endangered their lives, and that he was with a passenger that the police had to chase. The plaintiff stated that he was alone inside his taxi.

[11] The plaintiff’s witness, Masilela, testified and confirmed that the plaintiff gave him money to buy airtime. It was not far from where the plaintiff had stopped to pick up passengers. After a few minutes, he returned to the taxi. Plaintiff was inside the taxi which was facing the gate. There were people who came from the front about 15 m away from the gate who approached the taxi. As he was in the proximity of the taxi, the said people (two men who were on either side of the taxi) ‘hit’ the taxi.  All he heard was the banging on the taxi, followed by the words: “this motor vehicle must go”. Thereafter, the police motor vehicle stopped near their taxi with its siren on. He could not understand what was going on. Everyone’s attention at the rank was now focused on the taxi. One of the ‘three’ men hitting at their taxi pulled out a firearm and started chasing him.

[12] He ran past the police motor vehicle out of the taxi rank into the street and to a nearby shopping complex with the gunman still behind him. He continued running until he hid himself inside some toilet next to the train station. He found a security guard whom he asked to buy for him a train ticket. However, the guard did not do so. After a while, he ran out of the toilet, past the turnstiles which the security guard had opened for him and boarded a train to Johannesburg without a ticket. Along the way the plaintiff telephoned him and told him that he did not pick up passengers as the ‘situation was not conducive’ but did not explain fully what happened.

[13] He later disembarked at Doornfontein train station, Johannesburg. He had made arrangements with a friend of his to pick him up. By that time the two of them had already heard from other taxi drivers what happened to the plaintiff. As a consequence thereof, they made their way to the scene of incident. There were lots of police officers. The area was cordoned off by a police tape.

[14] During cross-examination, it was put to Masilela that the plaintiff never testified about Masilela’s return to the taxi, nor mentioned anything about him being pointed with a firearm. Masilela opined that the plaintiff was most probably concentrating on the two men. He was asked to describe the colours of his clothing that day but he could not remember. He was constrained to concede that he was in all probabilities wearing khaki pants. When asked why he fled whereas the police were nearby, his response was, when the police saw him being chased at gunpoint they did not alight from their motor vehicle.

[15] It was put to him that the only reason he knew about the scene of the incident was because he was in the same taxi, armed and fired at the police. Masilela disputed this. Upon his arrival at the scene between 12 and 1 PM, he saw the plaintiff’s bloodied pants and paramedics. A police officer from Hillbrow had allowed him permission to move closer beyond the police barricade or crime scene tape.

[16] The plaintiff’s third and last witness, Mr Vusumuzi Dhlamini, was at the time of this incident attached to the Independent Police Investigative Directorate, commonly known as IPID. He was assigned to investigate the alleged shooting between members of the police and the occupants of the combi. He investigated possible attempted murder and malicious injury to property charges against a number of police officers in Parkview and in particular, the three Technical Response Team members allegedly involved in the shootout. In the course of his investigation he established however, that the incident involved the helicopter units of the SAPS, members of the Alex TRT, the Sandringham flying squad, the JMPD and other units he failed to identify.

[17] As part of his investigation, Dhlamini was supplied with a compact disc which would have given insight about the communications that involved the various role players in the high-speed chase with the plaintiff. Unfortunately, the disc was ‘corrupted’ and could not play. He subsequently elicited special IT services within IPID without any positive results. He concluded that the plaintiff was not involved in any crime, nor could he find that the plaintiff shot at the police. Consequently, he recommended that the members of the Pretoria TRT be charged departmentally for a violation of relevant SAPS regulations.

[18] It became apparent during cross-examination that the members of the Pretoria TRT were exonerated for any wrongdoing at the displinary hearing recommended by Dhlamini. Dhlamini was constrained to concede that he did not attend the scene of the incident, but relied on reports made. It became apparent from a report made by a ballistics expert that the scene covered a long stretch. As a result not all the cartridges on the ground were attended to. Significantly, he was constrained to concede that he was not in a position to state for a fact that there was no exchange of gunfire between the police and the occupants of the Combi.

[19] Police officer Moraba testified on behalf of the defendant primarily as follows: He confirmed that, on the day of the incident he and two other colleagues, Constables Lefuka and Mashamaite were posted to be on a lookout for violence related incidents at the Bosman taxi rank following the murder of a taxi queue marshal as per CAS 1541/9/2013. They were traveling in a BMW police motor vehicle which was clearly marked. They were all in uniform. They had positioned themselves opposite the taxi rank on Jacob Mare Street when they observed a commotion from a distance of about 20 meters away. Someone had banged with his hand on the back right side of a taxi.

[20] He and his colleague, Lefuka jumped over the street to intervene. Upon inquiry from the group of people there gathered they were informed that plaintiff was not supposed to load or off-load where he was. Someone added that the front passenger’s seat inside the taxi was armed with a firearm. He and Lefuka approached the taxi on the driver side but the taxi took off. He and Lefuka ran back to the car with a view to pursue the taxi. They observed the taxi drive past red traffic lights at Jacob Mare and Schubart Streets. Realizing that the taxi driver had no intention to observe traffic signs they switched on their blue lights, sirens and continued the high-speed chase. The taxi driver drove past the second set of red traffic lights at Kgosi Mampuru Prison at which point they radioed for help from other police units.

[21] The high-speed chase continued with the taxi driver not paying heed to the police flashing blue lights, sirens and headlights. Other motorists on the road gave way and the taxi driver took advantage of that fact speeding away at high-speed. On the N1 South highway in Midrand, they managed to drive alongside the taxi and shouted, signalled to the driver to stop. The latter threw his hand sideways clearly demonstrating that he had no intention to stop and that the police must back off. On an off-ramp in the Sandton area, the taxi appeared to take the off-ramp, the driver of the police vehicle Constable Mashamaite followed suit only for the taxi to suddenly swerve and re-join the highway. This sudden trick almost made Mashamaite lose control of the police car. Other police units who had joined in the chase drove past them and continued the chase.

[22] The BMW that Moraba and his colleagues were using was old and slow. For that reason, they were the last to arrive at the scene where the plaintiff had been forced to stop at Joe Slovo Drive. They heard gunshots and the windows of the VW Crafter breaking. All they could do was to take cover and observe from a distance. From that position, Moraba testified that he saw the plaintiff coming out of the taxi with his hands raised up. He exited the police vehicle and shouted ‘cease-fire!’

[23] Once the firing had stopped he approached the taxi, the driver was lying on the ground bleeding. He could not tell from which side the firing came from. He only heard the gun battle. Medical personnel were summoned to assist. A senior police captain from Hillbrow Police Station confiscated firearms for ballistic purposes. The scene was cordoned off. The traffic on the N1 was redirected to alternative routes. Neither he nor his colleagues in the BMW had discharged their firearms.

[24] During cross-examination Moraba further testified that back at the taxi rank, the people who were causing a commotion were in his observation not visibly armed. He disputed a suggestion that the plaintiff was approached by a group of people who were armed.

[25] The defendant’s second witness, Mr Mnikhathi, testified that he is a member of the Johannesburg Metropolitan Police Department commonly known as JMPD. On the day of the incident he was on duty with other members travelling in a police Combi motor vehicle on Houghton Drive when they heard gunshots emanating from the back. They rushed to the scene to investigate what was happening. There he saw two helicopters. Of the two helicopters, one was shooting at the taxi. There was a man coming out of the taxi from the passenger side with a fawn stripped T-shirt with a firearm in his hand that the helicopter crew was shooting at. He first saw the man at a distance of about 30 to 40 m away. The man was running towards their direction but taking cover under the bridge of the freeway. He too shot at the man but missed. At the same time there were about four other people, construction workers crossing the freeway who also took cover. The men later surrendered and were apprehended. The construction workers were foreigners and in construction clothing. After being apprehended, the men were handed over to the TRT team that had gathered. He later made a brief statement regarding the incident.

[26] During cross-examination he testified that when he first saw the plaintiff’s taxi he was about 60 to 70 m away. Initially, when he heard the shots before he could see the helicopter crew shooting at the Combi, he could not tell from which side the shots were coming from. Upon being asked to explain why his statement is silent with regard to any reference to a firearm by the passenger from the taxi, it was his evidence that the officer who asked for the statement, had indicated to him to be brief. He was unable to specify which Tactical Response Team he handed the suspects. Neither did he conduct any interviews with the apprehended men. When it was put to him that his version is a fabrication as the plaintiff was alone, he disputed this.

[27] Constable Mokgwathi of the Alexandra Police was the last witness to testify on behalf of the defendant. He testified that he picked up from the police radio that the plaintiff’s motor vehicle being chased all the way from Pretoria had occupants who wanted to shoot another person at the taxi rank and were ignoring all police warnings to stop. He joined the chase at Marlborough on-ramp. The plaintiff’s Combi passed at a speed he could not match. He eventually caught up with it and noticed that it was not taking the Joe Slovo off-ramp. He drove past it and stopped it from the front. He was still inside his motor vehicle when he heard gunshots which made him think that the people inside the Combi were shooting at him. After a while the shooting stopped, he thereafter got out of his vehicle tactically, taking cover to avoid being a casualty and crawled to the front of his motor vehicle leaving his crew behind. At that stage he noticed that the plaintiff was still on the driver’s seat. He had his firearm pointed at the driver.

[28] The driver came out of the taxi and laid on the ground. Both the driver and the passenger doors were open. He later established that his motor vehicle had been shot in three places and the wheel was punctured. During cross-examination he testified that when he drove past the taxi, he did not look at its direction for fear of losing his life in case the occupants started shooting. However, after it was over, he did not see any other person other than the plaintiff on whom he had focused.

[29] Counsel for the plaintiff, Adv Ngobeni, contended in closing written submissions that the plaintiff has succeeded in proving his claim and accordingly, that judgment should be granted in his favour. It was further contended that the plaintiff and his witnesses were good witnesses whose respective versions were more credible than the defendant’s witnesses. The plaintiff also sought to introduce evidence with regards to his detention in police custody. But as counsel for the defendant pointed out, this is irrelevant as it was not pleaded. The law in this regard is settled. In Minister of Safety and Security v Slabbert[1] the Supreme Court of Appeal held:

“A party has a duty to allege in the pleadings the material facts upon which it relies.  It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial.  It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.”’[2]

[30] The leading authority for establishing negligence remains Kruger v Coetzee[3] where the Appellate Division, as it was then called, formulated the test which is now trite at 430E-F. Applying that test to the present case, the questions are whether (i) reasonable police officers in the position of the police officers at the Joe Slovo off-ramp would have foreseen the reasonable possibility of their conduct injuring the appellant’s person and causing harm; (ii) would reasonable police officers in the position of those police officers have taken reasonable steps to guard against that harm; and (iii) did those police officers fail to take those steps. It remains to evaluate the evidence.

[31] In National Employers’ General Insurance v Jagers[4] Eksteen AJP (as then was) said at 440D-E – 441A:

“In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive versions, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and the defendant’s version is false…It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses…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.”

[32] The onus rests squarely upon the plaintiff to prove that the negligent conduct complained of by the employees of the defendant caused the harm giving rise to the claim. It is accordingly necessary to evaluate and consider the credibility of the witnesses within the context of the onus and probabilities of the plaintiff’s case. This court must be satisfied that sufficient reliance can be placed on the plaintiff’s account of events for there to exist a strong possibility that his version is the true one.[5] The corollary principle that a court has to be satisfied that the version of the party bearing the onus is true and the other party false in order for the party who bears the onus to succeed in discharging his onus of proof, is only applicable in cases where there are no probabilities one way or the other.[6]

[33] Applying the above principles to the facts of the present matter it is first necessary to consider the credibility of the plaintiff, his witnesses and the witnesses for the defendant. I have no difficulty in stating up front that the plaintiff was a poor witness whose evidence in certain material respect appears contrived. Relevant material portions of his testimony were never corroborated. Relevant aspects of his testimony were contradicted or undermined by his own witness, Masilela, which I shall shortly deal with. The allegations by the plaintiff to the effect that the previous driver was killed at the same taxi rank under the same circumstances he was faced with was nothing more than hearsay, as they remained unsupported by any objective evidence.

[34] The undisputed evidence is that the police were deployed to the scene to guard against taxi related violence against the backdrop of the murder of a taxi marshal. The version proffered by the plaintiff as to the reasons why he on high-speed fled from the scene ignoring all instructions by the police to stop is highly unlikely. It is highly unlikely even on his own version that he feared for his life but stopped and waited for the police when they first signalled to him to stop. The one version inherently contradicted the other and is therefore implausible. I accordingly find that the plaintiff did not stop at all until he was forced to stop at the scene of the shooting.

[35] The version by the plaintiff that passengers were ordered out of his vehicle by one of the two men who initially confronted him is not supported by Masilela who on his version, had witnessed the taxi being ‘hit’ on the side. Not only did Masilela fail to confirm this crucial aspect, the police who attended to the commotion and had witnessed it a short distance away were never confronted with this version. In any event, Constable Moraba gave a different account contradicting the plaintiff with regard to the presence or otherwise of any passengers. The plaintiff wanted this court to believe that Masilela as well as his taxi boss, Zondi, instructed him to flee the scene. However, Masilela never confirmed this when it was his turn to testify, other than that, the plaintiff stated that the circumstances were not conducive for him to pick up passengers. Significantly, Masilela did not confirm that he told the plaintiff to flee. Neither was Zondi called by the plaintiff to confirm the allegation that he told plaintiff to flee.

[36] The allegation by the plaintiff that after sustaining a gunshot wound to the back of his head he exited the taxi and thereafter went back inside where he lied on the floor, seems unlikely and highly improbable. Neither is it supported by objective facts. This allegation was not suggested to the police member, Constable Mokgwathi, who testified with regard to how the plaintiff surrendered at the scene of the shoot-out and laid on the ground. It is highly inconceivable that the plaintiff in that injured state would have gone back inside the taxi after surrendering to the police. There is no doubt in my mind that the plaintiff was avoiding being stopped by the police or any possible arrest at any costs. His explanation that he was destined for the Hillbrow police station is not supported by the objective facts as he was forced to stop after overpassing the relevant off-ramp. As he himself testified, he wanted any open space for him to continue fleeing from the police. What makes his explanation more bizarre and difficult to accept is that he knew of no particular police officer at Hillbrow police station from whom he sought refuge. That he refused to stop to reasonable instructions by all the police units which joined the high-speed chase leaves more questions than answers. It does him no credit.

[37] Masilela was equally less impressive in his testimony. Not only did he contradict the plaintiff in material respects with regard to the events that took place at the taxi rank, his version on crucial aspects of this trial is inherently improbable. In essence, it was his evidence that he was chased at gunpoint from the scene where he was next to the taxi, and by implication next to the plaintiff, out of the taxi rank through the gate in full view of the police. The difficulty I have is that this was never suggested to Constable Moraba when he testified. Neither did the plaintiff attest to this aspect. I find it highly unlikely that the plaintiff would not have noticed this crucial development as the gunman on Masilela’s version, was one of the two men who confronted the plaintiff. It is equally inconceivable that a security guard would have allowed Masilela to board a train without a ticket in contravention of the applicable regulations whereas it was his job to prevent that from happening.

[38] Masilela’s version that he arrived at the scene of the incident and still found the plaintiff the scene of the shooting, is highly improbable given that the plaintiff drove at high speed to Johannesburg. It is highly unlikely that an ordinary train, which he had boarded in Pretoria, would have arrived in Johannesburg in time for him to find the plaintiff injured at the scene. From the pictures taken of the scene, the highway was cordoned off, and as per the evidence presented on behalf of the defendant traffic was re-routed due to the presence of police helicopters that had landed on the road. It is accordingly unlikely that other taxi drivers would have taken note of the plaintiff’s taxi before the shooting occurred for the road had been cleared for the convenience of the police helicopters. Accordingly, it stands to reason that Masilela’s version in this regard is nothing more than a fabrication. With the scene cordoned off as a potential crime scene, it is equally inconceivable that a senior member of the police would have allowed civilians to go beyond the police tape as Masilela suggested. Masilela’s account in this regard is undoubtedly contrived.

[39] The version by Dhlamini does not advance the plaintiff’s case any further. All it shows is that there were certain unsatisfactory aspects of the police conduct and no more. Crucially however, Dhlamini conceded that the ballistics investigation was incomplete in that not all the fired cartridges were picked up from the scene. It could not therefore be discounted that there was an exchange of gunfire between the police and the occupants of the taxi.

[40] In contrast to the plaintiff’s case, the version by Moraba on behalf of the defendant was never contradicted. It is more probable than that of the plaintiff and was in fact corroborated in certain material respects by the plaintiff’s case. Simply put, two police officers of the three attended to the commotion around the plaintiff’s taxi. Consistent with the plaintiff’s version, the complaint was that the plaintiff had stopped in that part of the taxi rank where he was not supposed to be. In addition and most importantly, a report was made that his passenger was armed with a firearm.

[41] The two cardinal rules of logic which underpin inferential reasoning were enunciated in R v Blom.[7] The first rule is that the inference sought to be inferred must be consistent with all the proven facts. If it is not, the inference cannot be drawn. The second rule is that the proved facts should be such that they exclude any other reasonable inference from them, save the one sought to be drawn. If they do not, then there must be doubt whether the inference sought to be drawn is the correct one. The allegations that the occupants of the taxi were armed or one of them at least, on the probabilities, led to Moraba and his colleague in approaching the plaintiff who fled from the scene at high speed, and eventually being forced to stop afterwards in the vicinity of Killarney where the shooting occurred. In my view, the only reasonable inference for which there is scope considering the proven facts is that the plaintiff had something more sinister to flee. This explains why the plaintiff fled the scene and refused to stop. It is a more probable version.

[40] Mnikhathi’s evidence, I find, was also not contrived. In summary, he saw a helicopter crew shooting at the taxi and a passenger exiting with a firearm. His attempt to shoot the passenger failed in that he missed. The criticism as to what happened to the missing armed passenger however, is not without merit. It merely reveals that there was a police bungle regarding the detection and arrest of the suspected gunman. It does not discount the probabilities that there was an armed passenger in the taxi who evaded arrest. This must be seen against a background that the scene was volatile and dangerous for all actors. None of them wanted to lose their lives.

[41] Constable Mokgwathi’s evidence does not take the defendant’s case any further. All it does is to show how the plaintiff was arrested at the scene of the incident which I have already found is an account more probable than that given by the plaintiff. Importantly however, the uncontested evidence being that the passenger door was open suggests that there was a front seat passenger with the plaintiff inside the taxi. Regard being had to the totality of the facts and the probabilities, it lends credence to the version by Mnikhathi that the police helicopter crew were shooting at an armed passenger exiting the taxi who later evaded arrest.

[42] The unlawful possession of a firearm is an offence referred to in Schedule 1 of the Criminal Procedure Act 51 of 1977. On the evidence and the probabilities it is clear that what led to the high speed chase is the plaintiff ignoring police instructions to stop. The fact that the police bungled up the investigation and failed to arrest any culprit does not in any way advance the plaintiff’s case. The shooting that followed was a direct consequence of the confrontation between the armed passenger and the police, which I find to be a more probable version.

[43] In any event, to the extent that the evidence gave rise to two mutually conflicting versions of the facts, the proper approach to deciding which to prefer is that described in the oft cited analysis of Nienaber JA in Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie SA and others[8] 

[44] In the result I conclude that the plaintiff has not established that the defendant was negligent as alleged, or at all, and his claim on the merits must therefore fail. The general rule is that costs follow the result. I was not referred to any facts or circumstances that would justify a departure from the general rule, nor do I consider there to be any reason to do so.

[45] In the circumstances, I make the following order:

 

Order

1. The Plaintiff’s claim is dismissed with costs.

 

 

________________

T P MUDAU

[Judge of the High Court,

Gauteng Local Division,

Johannesburg]

 

 

Date of Hearing: 5, 6, 7, 25 & 26 June 2019 And

29 July 2019

Date of Judgment: 28 August 2019

APPEARANCES

For the Plaintiff: Adv. MJ Ngobeni

Instructed by: Khumalo T. Attorneys

011 333

For the Respondent: Adv. T Seboko

Instructed by: The State Attorneys

011 330 7714

 

---