REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

(1)	REPORTABLE:    NO/YES
(2)	OF INTEREST TO OTHER JUDGES:   NO/YES
(3)	REVISED:   NO/YES     

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DATE                                   SIGNATURE
	
                                                                                                           CASE NUMBER: 81020/2015

In the matter between:-

          MABUZA BAFANA AMOS                     		                               Plaintiff   

And

           MINISTER OF POLICE                                                                Defendant

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                                                          JUDGMENT
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BEFORE:  MEERSINGH AJ.
(The matter was heard via Teams in accordance with the Directives regarding the arrangements during the National State of Disaster; the Judgment will be uploaded onto Case Lines to the electronic file of this matter and will be electronically submitted to the parties/their representatives by Email).

[1] The Plaintiff instituted an action against the Defendant for damages arising out of his having been allegedly assaulted on the 20th June 2013 by unknown members of the South African Police Services the SAPS members, acting in the course and scope of their employment with the Defendant in terms of the Actio Iniuriarum.

[2] At the close of the Plaintiff’s case, the Defendant applied for Absolution from the Instance in terms of Rule 39(6) of the Uniform Rules of Court.  The application for Absolution from the Instance was dismissed

[3] Applications of this nature are very sparingly granted. The test to be applied is whether there is evidence upon which the court, applying its mind reasonably to such evidence, could or might find for the Plaintiff.  

[4] In Claude  Neon  Lights  (SA)  Ltd  v  Daniel,   the  Appellate Division formulated the test for Absolution at the close of the Plaintiff’s case as follows:
“When Absolution from the instance is sought at the close of Plaintiff’s case, the test to be applied is not whether the evidence led by the Plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, or ought to) find for the Plaintiff.”

[5] In light of the evidence this court could or might very well have found for the Plaintiff. The defendant closed it case at the end of the Plaintiff’s case. The test now is whether this court should or ought to find for the Plaintiff.

[6] Plaintiff filed particulars of claim in support of the damages claimed.  It was averred in the particulars of claim as follows:-
In amplification thereof Plaintiff alleged that:-
1.	They kicked the Plaintiff on his buttocks;
2.	They repeatedly hit the Plaintiff on his back and both legs.

[7] The Plaintiff subsequently amended his particulars of claim to reflect that the Plaintiff assaulted by members of SAPS as follows:-
1.	Assaulted the Plaintiff by kicking the Plaintiff on the back, buttock and legs.

 [8] The Plaintiff testified and also called a witness one Mr. Mamba.

 [9] The Plaintiff testified that on the 20 June 2013 he was part of a group of mine employees who were on strike. They were outside of the premises of the mine. They were scattered in different groups and he was in a group that was playing a game of cards called Morabaraba. At about 16h00 the police started to throw and shoot teargas at them. Three teargas canisters were thrown at his back whilst he was running away. He also testified that he was shot three times on his back towards his buttocks with rubber bullet. As he was running away he collided with the fence and fell down.  Whilst on the ground a policeman fired three rubber bullets towards his head/face. He managed to block all three bullets with his hands. Thereafter a policeman kicked him in his ribs and on his upper left chest area for no apparent reason. He further testified that he was also kicked by the security personnel working at the mine. He was thereafter told by some mine security personnel to stand up and leave. His evidence is that it was a peaceful gathering and that he was surprised when the police charged at them with shields. He thereafter called his brother who came with his son at around 19h00 on 20 June 2013.
 [10] He was taken to Dr De Jager on the 21st June 2013 because he was injured as a result of the assault. Dr De Jager put him on sick leave him until 24 June 2013. On the 24 June 2013 he once again consulted with Dr De Jager who then referred him to the hospital where he stayed overnight. On the  21st June  2013  he was advised by some of his friends that three  people were  found  dead including one Mabilo,  at the  place  where  the  police  had allegedly assaulted him.
 [11] Under cross examination the Plaintiff was asked to give an explanation as to why his testimony differed in every aspect from the allegations in his particulars of claim as amended. His response was that he did not tell his attorney he was assaulted as alleged in the initial or the amended particulars of claim. He was asked to explain why the report of his Industrial Psychologist, one Ms. Cilliers, states that he was beaten until he lost consciousness. He denied that he had so advised MS Cilliers, his own expert. 
[12] The Plaintiff called a witness, one Mr. Mamba, a work colleague and friend of some 14 years. He testified that plaintiff was a member of a group which was seated outside the mine premises. He confirmed the version of the plaintiff that the mine workers who were on strike were charged at by unknown members of SAPS. He further testified that as he was running away he hid behind a tree and saw the assault by members of the SAPS as described by the Plaintiff. His evidence is that he saw members of SAPS firing rubber bullets directly at the Plaintiff’s face which Plaintiff warded off with his hands. He did not see the security personnel of the company assaulting the Plaintiff. He further testified that three people were found dead a day after at the scene of the alleged incident. 
[13] Under cross examination Mr. Mamba denied that he and the Plaintiff entered into a discussion regarding the alleged assault by SAPS, on any occasion since the alleged incident. He contradicted the evidence of the plaintiff in that he denied that the group in which Plaintiff was a member was playing a game of cards immediately prior to being charged at by SAPS.
[14] In evaluation of the evidence of the Plaintiff and the witness this court finds as follows:-

The Plaintiff sought to convince this court that he had been assaulted by members of SAPS whilst peacefully sitting outside the mine premises at which he was employed pursuant to a strike. In doing so the Plaintiff tendered a version in his 
1.	Oral testimony before this court; 
2.	A version in his pleading as amended and;
3.	A version as per the report of his Industrial Psychologist Ms. Cilliers. 

[15] The versions of the alleged assault differ from each other. The Plaintiff’s explanation for the differences in these inconsistent versions are improbable. The Plaintiffs own versions are not only fanciful but are also conflicting in themselves. His explanations are that the fault lies with his attorney and expert.

[16] Mr. Mamba failed to take this court into his confidence and as a display of his honesty to admit that at least he would have discussed the matter with the Plaintiff and or the attorney of the Plaintiff at the time when he was called to be a witness in the matter. He contradicts the evidence in the chief of the Plaintiff. His evidence does not corroborate the evidence of the Plaintiff in material respects in particular the Plaintiff having been assaulted by three tear gas canister which allegedly were thrown at him by members of SAPS which canisters struck the Plaintiff on the back. His attempted corroboration by way of description of the Plaintiff’s version of the rubber bullets being fired at the Plaintiff head/face is incredible. The evidence of Mr. Mamba can only be described as improbable and biased given his long standing relationship with the Plaintiff. 
[17] This court finds the plaintiffs evidence to be inconsistent, unreliable and not credible and accordingly reject the version of the plaintiff.
[18] This court also rejects the evidence of the witness Mr Mamba.
[19] The first question before this court is whether the case of the Plaintiff has been correctly pleaded. The Plaintiff’s particular of claim were not as explicit as they ought to have been. The Plaintiff's particulars of claim as amended, alleged that the Plaintiff was assaulted by “kicking on the buttocks and the leg”.
[20] The object of pleading is to define the issues."

"It is a fundamental rule of fair civil proceedings that parties... should be apprised of the case which they are required to meet; one of the manifestations of the rule is that he who [asserts] ...Must . . .    formulate his case sufficiently clearly so as to indicate what he Is relying on.”

[21] The Supreme Court of Appeal has with regard to the purpose and importance of pleadings held as follows:
"It is trite that litigants must plead   material facts   relied   upon as a basis for the relief sought and define the issues in their pleadings to enable the parties to the action to know what case they have to meet.”

"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 case"

[22] In British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd, the SCA said the following:
"However, the absence of such an averment in the pleadings would not necessarily be fatal   if the point   was fully canvassed in evidence.    This means   fully canvassed by both   sides in the sense that   the court   was expected to pronounce upon it as an issue."
[23] In keeping with natural justice the Plaintiff was granted an opportunity to fully canvass this in oral evidence. The Plaintiff failed to canvass the issues as amended in his pleadings. 
[24] This is a claim for damages arising out of an alleged assault. This necessarily means the Plaintiff bears the onus of proof. The question before this court is whether judgement can be given in favor of the plaintiff in light of the nature of the evidence before this court. 
[25] The Courts in resolving factual disputes refer to the much relied upon judgement as summarized in Stellenbosch Farmers' Winery Group  Limited and another v Martell & CIE SA and Others,2  as follows by Nienaber JA:
"To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) The probabilities.   As to (a), the court's   finding   on  the  credibility  of  a particular  witness  will depend   on  its impression   about   the  veracity  of  the Witness.  That in  turn  will  depend   on  a  variety  of  subsidiary  factors,  not necessarily in order of importance, such as (i)  the witness's candour and demeanour in the witness-box, (ii)  his bias, latent  and  blatant,   (iii)  internal contradictions in his evidence, (iv) external  contradictions with what  was pleaded  or put  on  his behalf,  or with  established  fact  or with  his own extracurial statements  or  actions,  (v]  the  probability or improbability of particular aspects  of  his version,  (vi)  the  calibre   and   cogency  of  his performance compared  to  that  of  other  witnesses testifying  about   the same incident or events. As to (b}, a witness's reliability will depend, apart from  the  factors  mentioned under  (a)(ii),  (iv) and  (v] above,   on  (i)   the opportunities he had  to experience or observe  the event  in question  and (ii)  the quality,  integrity and  independence of his recall  thereof.  As to (c), this necessitates an   analysis and   evaluation of   the   probability   or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether  the  party   burdened  with   the  onus  of  proof   has succeeded in discharging  it. The hard case, which will doubtless be the rare one, occurs when  a  court's  credibility findings compel  it in one  direction and   its  evaluation  of   the  general  probabilities   in  another.  The more convincing	the former, the Jess convincing   will be the latter.  But when all factors are equipoised probabilities prevail."

[26] In Gascoyne v Paul and Hunter it was held :-

"At  the  close  of  the  case  for  the Plaintiff,  therefore,  the question which arises for the consideration of the Court is, is there evidence upon which a reasonable man might find for the Plaintiff? And if the defendant does not call any evidence, but closes his case immediately, the question for the Court would be:   "Is there such evidence upon which the Court ought   to give judgment in favour   of the Plaintiff?"

[27] Whilst the court’s take a dim view of police brutality this view cannot be imposed on the police where the evidentiary burden of proof is lightened and or shifted.

[28] In the matter before this court the credibility of both the Plaintiff and his witness is dubious and cannot be relied upon. On a preponderance of probabilities this court finds that version of the Plaintiff is highly improbable. The Plaintiff has failed to discharge the onus of proof, which rest squarely upon him. 

ORDER:

[24] The Plaintiff claim is dismissed with costs.

                                                                                                                                                                                                                    
                                                                   ________________________________
                                                                   S. MEERSINGH
                                                                   ACTING JUDGE OF THE HIGH COURT

CASE NUMBER:   81020/2015
HEARD ON: 22 October 2021
DATE OF JUDGEMENT:14 February 2022

FOR THE PLAINTIFF: ADV T TSHIVHASE
(Instructed by: Makapan Attorneys)

FOR THE DEFENDANT: MR NEL
(Instructed by: State Attorney)