Republic of South Africa 
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number 6129/06

In the matter between:

versus

THE MINISTER OF JUSTICE  & 

[1] In this action the plaintiff claims damages from the defendants he suffered as a result of bodily injury he sustained on 16 July 2005 when he was shot and wounded in the chest by the third defendant at a rugby field near Vlottenberg, Stellenbosch, Western Cape. As a result of the shooting the plaintiff was severely injured to the extent that he is now permanently paralysed.

[3] The quantum of the plaintiff's claim is not relevant for the purposes of this judgment as the Court was requested by counsel for the parties at the commencement of the trial in terms of rule 33 (4) to separate the issues of liability and quantum of damages and to hear the merits and determine the issue of defendants' liability first. As I was satisfied that there were good and sufficient grounds for the approach proposed by the parties I made an order in terms of rule 33 (4) to the effect that this Court will try and determine the issue of the defendants' liability only and that issue relating to the quantum of the plaintiff's claim will be determined at a later stage.

The pleadings
[4] In the particulars of claim the plaintiff alleges that on about 16 July 2005 near Vlottenberg, Stellenbosch the plaintiff was unlawfully assaulted by being shot in the chest by the third defendant. The plaintiff further alleges that the third defendant was at all material time acting within the course and scope of his employment with the first defendant and/or the second defendant, or in the furthering of the first defendant and/or second defendant's interest. The plaintiff further alleges that in shooting him the third defendant acted wrongfully, unlawfully and negligently.

[5] In its plea the first defendant denies that at the time of the shooting the third defendant was acting within the course and scope of his employment with the first defendant or was furthering its interest. Although the first defendant admits that at the time of the shooting incident the third defendant was a member of the South African Police Service it denies that the third defendant was on duty at the time of the shooting. It avers that he was and remained off duty. The first defendant alleges that the third defendant was seconded to the NPA in terms of section 39 (1) of the South African Police Service Act, 58 of 1995 and in terms of section 39 (3) of the said Act the third defendant was obliged in the performance of his functions to act in terms of the law applicable to the department of State or authority to which he was seconded; that the third defendant was issued with a firearm on the instructions of the director of Witness Protection Unit who does not fall under the auspices and/or control of the first defendant; that the third defendant acted in self-defence and his conduct in shooting the plaintiff was thus lawful, necessary and justifiable in circumstances where the plaintiff had stabbed the third defendant with a knife and threatened to do so again, necessitating that the third defendant discharge his firearm for his own protection.

[6] The second defendant also alleges in its plea that at the time of the shooting incident the third defendant was seconded to the Witness Protection Unit of the NPA; and was off duty. It denies that the third defendant acted within the course and scope of his employment with the second defendant or acted in furthering the second defendant's interest at the relevant time. The second defendant contends that the third defendant acted in self-defence and his conduct in shooting the plaintiff was justifiable, lawful and reasonable in the circumstances.

[7] In his plea the third defendant denies that on 16 July 2005 he was acting within the course and scope of his employment with the first defendant and/or the second defendant or in the first or second defendant's interest when he shot and wounded the plaintiff. The third defendant alleges that on 16 July 2005 he was a member of the South African Police Service who had been seconded to the Witness Protection Unit of the NPA and further that although the members of the Witness Protection Unit are required to be on standby on a 24 hour 7 day per week basis the third defendant was and remained off duty at the time of the shooting incident which incident was done in self-defence.

The evidence
[8] Various witnesses were called by and on behalf of the plaintiff to testify in support of the plaintiff's claim against the defendants. The third defendant also testified and called witnesses.

Plaintiff
[9] The plaintiff ("Michael") testified that on 16 July 2005 he together with his two brothers attended a rugby match between the Evergreens of Stellenbosch and Temperance of Gouda. The match was at Vlottenberg in Stellenbosch. The plaintiff supported Evergreens and the third defendant at the field stood with the supporters of Temperance. The match on the field became very physical and aggressive leading to a conflict on the rugby field between the players and the spectators which resulted in the referee stopping the match.

[11] The plaintiff testified that on reaching the other side of the field he smacked a person in the face. He could not recall who he had smacked. The plaintiff could not recall if the person he smacked retaliated. He testified that the next thing he could remember is when he was shot. He denied that on the day in question he had a knife. He stated that he never carries one. He also denied that he had stabbed the third defendant with a knife. The plaintiff could not recall how he was shot and what happened during the shooting. He stated that he could only recall falling to the ground and this is the time that he realised that he had been shot. He was unable to recall where he had fallen after the shooting. He, however, stated that he recalled that at some stage he was taken to hospital.

 

could not remember how or where exactly on the road the shooting had occurred.

[15] Steven Van Niekerk, one of Evergreens officials approached and took Abraham away from the third defendant's car. Thereafter a Toyota Corolla motor car travelled down the gravel road in the direction of the Stellenboschkloof Road. Abraham chased behind the motor vehicle as it slowly drove down the gravel road as he wanted to get at the driver of the vehicle. Whilst running behind the vehicle Abraham saw the third defendant on the grazing side of the gravel road. The third defendant thereafter turned around and fired a shot in the direction in which he had come from.

[16] According to Abraham he was approximately 10 meters away from the third defendant when the third defendant fired a shot. There was no one between him and the third defendant when the latter fired the shot. When the shot was fired he fell to the ground as he believed that he had been shot. Whilst on the ground he heard people screaming saying that the plaintiff had been shot. Plaintiff was at that stage approximately 7 meters behind him. Abraham further testified that after the shooting the third defendant got into the passenger side of a Toyota Corolla and thereafter the vehicle proceeded in the direction of Kuils River. At that stage he went back to the plaintiff and while at the plaintiff he noticed that the bus carrying Temperance supporters was about to leave the Stellenboschkloof Road. He went to stop the bus driver from leaving. When he got onto the bus he asked passengers to point out to him the third defendant. One of the passengers asked him to leave which he did. Abraham went back to where the plaintiff lay. Whilst at the plaintiff he heard the bus starting up again. He was very angry and demanded the bus not to drive away while he walked to the plaintiff. On his way to the plaintiff the bus moved but before it got away he picked up a stone and threw it at the bus smashing its windscreen. He did not see anyone stabbing with a knife neither did he have a knife on the day in question.

[17] Abraham was also asked about the statement which he had made to the police regarding the occurrence of the incident. He admitted to have made a statement to the police which he thereafter signed. He denied that he saw the third defendant at the Stellenbosch Magistrates' Court. He denied to have accompanied the plaintiff to Stellenbosch Magistrates' Court. Abraham said each time that the plaintiff (Michael) had to attend Court his sister and his younger brother would always accompany him.

[21] Krediet also testified about the White Jetta vehicle which was stuck in the mud near the rugby field. The driver of the Jetta vehicle was confronted by Evergreen supporters. He testified that the Temperance players assisted the driver to get it out of the mud. Eventually the Jetta vehicle managed to get out of the mud and slowly drove away down the road. At that point in time the crowd wanted to get at the driver and banged on the boot as he drove away.

[22] According to Krediet when the plaintiff attempted to grab at the defendant the two were standing face to face. It appeared to him that the plaintiff was attempting to grab the third defendant at his shoulder. Krediet further testified that when he asked the third defendant why he had shot the plaintiff the third defendant told him that the plaintiff had stabbed him.

[24] Mr Krediet further testified that he had earlier requested the driver of the Toyota Corolla motor vehicle to drive away from the rugby field as he feared for his life seeing that some spectators wanted to injure him. In his opinion had he not heeded his advice he probably would have been seriously injured. He said before the shooting there was no one between himself, the plaintiff and the third defendant.

[25] He disagreed with Abraham that the third defendant was about 15 to 20 paces away from the plaintiff when he fired a shot at the plaintiff. He stated that the plaintiff ran behind the third defendant at a distance of about 15 to 20 paces before the struggle between them ensued. Krediet testified that the reason why he ran behind the plaintiff on the gravel road on the day in question was to prevent the plaintiff from fighting.

[27] Mr Steve Van Niekerk also testified for the plaintiff. At the time of the incident Mr Van Niekerk was the secretary of Evergreens Rugby Club and he was one of the safety officers who were responsible for crowd control on the field. According to his observation the match was very physical and at some point a fight broke out between the players of the two teams with the result that their respective supporters invaded the pitch. The referee had to stop the match for a while, while an attempt was being made to clear the field of the spectators. Thereafter the match continued. However, shortly thereafter a fight erupted again in the field and this caused the referee to finally call off the match. According to Van Niekerk at that stage the situation was restless and riotous. The people who were mainly involved in the fight were the plaintiff and his two brothers, the third defendant and his friend. Mr Van Niekerk did not witness any person being smacked on this day. He stated that the third defendant and his friend walked to a Jetta vehicle which was parked next to the field. On reaching the Jetta they opened the boot and both of them took out two black metal sticks and they thereafter walked back in the direction of the plaintiff and his brothers. The players prevented the plaintiff and his brother from coming into contact with the third defendant and his friend. He estimated the crowd to have been in the region of 100 people. He stated that Mr Krediet was one of the people who tried to bring the situation under control.

[28] Some few minutes later the third defendant together with his friend walked back to their respective motor vehicles. The third defendant's friend got into a Jetta motor vehicle while a lady got into a Toyota Corolla. The third defendant did not get into the motor vehicle. He walked along the Toyota Corolla as it was moving in the direction of Stellenboschkloof Road. The Toyota Corolla motor vehicle drove behind the Jetta and at that stage the plaintiff and his brothers followed the Toyota Corolla motor vehicle and the witness tried to prevent them from getting to the third defendant. As he was busy restraining the plaintiff and his brothers, the plaintiff broke loose and disappeared into the crowd. At that stage the third defendant was walking along the Toyota Corolla motor vehicle with his back facing the Stellenboschkloof Road, in other words he backtracked as he walked down the road. Michael approached the third defendant and at that stage the Toyota Corolla motor vehicle was in the Stellenboschkloof Road. The witness was about 10 paces behind Michael and was trying to restrain him from confronting the third defendant. The third defendant turned around and pulled out a pistol out of his belt and fired a shot. Michael fell to the ground. According to the witness' observation the plaintiff was not armed and was some paces away from the third defendant. The witness approached the third defendant and told him to leave. It was at this stage that he saw Abraham running past him towards the third defendant. Thereafter the third defendant got into the Toyota Corolla and drove away. At that stage Abraham got onto the bus carrying Temperance supporters and looked for the third defendant. The witness followed Abraham.

[31] Miss Miti, the plaintiff's girlfriend testified about the appearances the plaintiff made at the Stellenbosch Criminal Court, following the criminal charges the third defendant had brought against Michael as a result of the stabbing incident. She testified that she always accompanied the plaintiff to the Stellenbosch Criminal Court. She denied that Abraham ever accompanied him. She denied that while they were at the Stellenbosch Criminal Court the plaintiff and Abraham approached the third defendant and apologised for the stabbing.

Defendants

[34] As he was standing with Le Fleur two persons climbed through the fence of the field. They walked past him and approached Le Fleur who was standing behind him. An argument ensued between the two persons and Le Fleur and one of the persons whom he identified as the plaintiff, smacked Le Fleur on the face. The third defendant then intervened between Le Fleur and the plaintiff and suggested to Le Fleur that they leave the field which they then did. They walked to their respective vehicles and as they did so a group of people including two persons who had climbed through the fence, followed them.

[36] The plaintiff grabbed the third defendant by his T-shirt and pulled him towards him and stabbed him with his right hand in his back with knife. The plaintiff then lifted his hand a third time to stab at the third defendant once more. The third defendant then took out his pistol and shot the plaintiff in the chest less than a distance of an arm's length. After the shooting the third defendant looked up and saw Abraham near him in possession of a knife and suspecting that he might stab him as well the third defendant pointed his firearm at Abraham. The flank was close to Abraham after which one of them asked him why he had shot the plaintiff to which the third defendant replied that the plaintiff had stabbed him.

[37] The third defendant's girlfriend pulled up next to him. He asked her to continue driving as he feared for her life. He asked her to wait for him on the Stellenboschkloof Road whereafter he met her. He got into the vehicle driven by his girlfriend and they drove to Cloetesville police station where he reported the matter. Thereafter he proceeded to Stellenbosch Medical Centre for treatment. The third defendant sustained a six centimetre stab wound which was treated and for which he received 18 stitches. The third defendant testified that he had shot and injured the plaintiff in self defence after he had already hit the plaintiff with his baton to ward him off him but that did not succeed. The plaintiff had already stabbed at him twice and he would have stabbed him a third time had he not fired a shot at him. He stated that he could also not run away because by that time the plaintiff had already stabbed him and grabbed him by his T-shirt. The third defendant stated that he was off duty at the time of the incident.
[38] As far as the third defendant's employment is concerned he testified that on the day in question he was a member of the South African Police Service but had been seconded to the NPA since February 2004. He only became a permanent member of the NPA in 2008. He took his instructions from the NPA as his service related to the protection of witnesses. He stated that operationally he reported to the NPA as he was under the direct command of someone in the NPA. His salary, subsistence and travel allowance were paid by the South African Police Service. He stated that when he did work for the NPA in protecting witnesses the NPA did not have its own personnel who performed these duties. The third defendant further testified that on the day in question he was on standby and if something happened with a witness in an emergency situation then he would have to drive out with his vehicle. According to him he was on permanent standby duty. He stated that in the police force one worked shifts which were fixed hours. Any work performed beyond the normal shift hours in the police was regarded as overtime. As there were only 8 members present at the NPA who always travelled, the members at the NPA were at all times on standby and that they had to make themselves available at all time as and when they are requested. He stated that the vehicle which he used on 16 July 2005 was a state vehicle which he was authorised to use under the command of Captain Van Rooyen of the South African Police Service. However, the vehicle was used in carrying out his duties as a member seconded to the NPA. The third defendant stated that Mr Le Fleur reported the shooting incident to his commander, Captain Van Rooyen. He further stated that during his tenure of 17 months with the NPA he never during this time returned to the police service to carry out his functions as a policeman. The only connection or association he had with the South African Police Service was that he resided in their single quarters and received a salary from them. He further stated that all his equipment including his motor vehicle was issued to him by the NPA. The firearm which he used during the shooting incident was issued to him by the NPA. He stated that while he was seconded to the NPA the South African Police Service had no control over his work at the NPA and he received training from the NPA. He stated that whilst on standby he would only assume duty once he received a call from the office. Until then he was free to carry out his personal duties. He stated that on 16 July 2005 he was not doing any witness protection duties on the rugby field nor was he called out to perform any witness protection duties nor was he performing witness protection duties when he fired the shot.

[40] Andries Le Fleur was called to testify for the third defendant. He was also at the rugby match. He was joined at the match by the third defendant his friend. He also testified about the fight which broke out on the rugby field as well as about the four persons who walked across the rugby field in the direction of where he was standing. He stated that one of the persons picked a fight with him and used foul language towards him as this person believed that Le Fleur was a Temperance supporter. The plaintiff then smacked him in his face with his fist.
[41] Some of the spectators then formed a circle around him with an intention to prevent the plaintiff from further assaulting him but the third defendant intervened by keeping the parties aside and advised him to leave the field which he did.

[42] As he walked to his vehicle a group of people followed Le Fleur. While he was in his vehicle a group of people confronted him and as he was trying to pull out of the parking lot his motor vehicle got stuck in the mud. The third defendant together with other people assisted him to push the car out of the mud. While this was happening the plaintiff assaulted him again on the side of his face through the window of his car.

The statement of the issues
[43] There are two issues to be determined in this matter. The first one is whether the third defendant was acting within the course and scope of his employment with the first and/or second defendant or in furthering the first and/or second defendant's interest in shooting and injuring the plaintiff on 16 July 2005. The second is whether the third defendant acted in self-defence when he shot and injured the plaintiff.

 

[47] It was further argued on behalf of the plaintiff that it was clear that at the time of the shooting the third defendant although he was on standby he subjectively placed himself on duty when he followed the plaintiff to stop him from assaulting Le Fleur. There is no legal basis for this contention. The third defendant was not performing police duties when he followed the plaintiff. The third defendant could, in the exercise of his powers under the Criminal Procedure Act 51 of 1977, arrest the plaintiff. But the fact that he could do so provides no basis for the contention that when the third defendant followed the plaintiff intended to arrest him. He was not legally obliged to do so.

[49] For the purposes of determining the issue of vicarious liability it is not necessary in my view to decide which of the two defendants was the employer of the third defendant as it is clear to me that although the third defendant was permanently employed by the first defendant who paid his salary and provided him with accommodation he nevertheless performed duties of the special nature on behalf of the second defendant. Both defendants supplied him with tools with which to perform his duties. The firearm and baton as well as the motor vehicle in which he travelled to the rugby field on the day in question had been issued to the third defendant by the second defendant. Thus the question is whether the first and second defendants were vicariously liable for the delict committed by the third defendant when he shot and wounded the plaintiff on 16 July 2005.

[52]   The second question is whether the third defendant acted in self-defence
when he shot and injured the plaintiff on 16 July 2005. For a plea of self-defence to

threatened attack and that he had reasonable grounds for believing that he was in
physical danger and that the means he employed in self defence were
commensurate with the danger and the dangerous means of defence must not have
been adopted and the threatened injury could not have been avoided in some other

526 G-H. The constitutionality of self-defence was also considered by the

the Court had this to say in this regard:

"[138] Self-defence is recognised by all legal systems. Where a choice has to be made between the lives of two or more people, the life of the innocent is given preference over the life of the aggressor. This is consistent with s 33(1). To deny the innocent person the right to act in self-defence would deny to that individual his or her right to life. The same is true where lethal force is used against a hostage taker who threatens the life of the hostage. It is permissible to kill the hostage taker to save the life of the innocent hostage. But only if the hostage is in real danger. The law solves problems such as these through the doctrine of proportionality, balancing the rights of the aggressor against the rights of the victim, and favouring the life or lives of innocents over the life or lives of the guilty. But there are strict limits to the taking of life, even in the circumstances that have been described, and the law insists upon these limits being adhered to. In any event, there are material respects in which killing in self-defence or necessity differs from the execution of a criminal by the State. Self-defence takes place at the time of the threat to the victim's life, at the moment of the emergency which gave rise to the necessity and, traditionally, under circumstances in which no less severe alternative is readily available to the potential victim. Killing by the State takes place long after the crime was committed, at a time when there is no emergency and under circumstances which permit the careful consideration of alternative punishment."

[53]   The test whether a person acted in self-defence is an objective one which
means that when the Court comes to decide whether there was a necessity to act in
self-defence it must place itself in the position of the person claiming to have acted in
self-defence and consider all the surrounding factors operating at the time he acted

"A plea of defence is aimed at showing that the attack by the defendant was not wrongful. For that very reason, the test is objective. The legal position is thus summarised by Boberg The Law of Delict vol 1 (1984) at 788:
'The enquiry is factual, and - since the issue is wrongfulness, not fault -the test is objective. Thus the question is not whether the defendant believed his conduct to be justified, but whether the law considers it so. This, in turn, depends on whether it was a reasonable response for the defendant to make to the situation, judged objectively and even with hindsight - though not without regard to the individual defendant's resources, motives and circumstances, for no test can be applied in a vacuum. If the test is satisfied the defendant escapes liability because he acted lawfully in a situation of necessity or defence. If the test is not satisfied the defendant cannot invoke necessity or defence to justify his conduct, which therefore remains wrongful."'

[54] The first leg of the enquiry is whether the third defendant had reason to consider himself to be in danger of serious injury at the time of the shooting. The picture which the third defendant wanted to paint is that on the day in question he together with his friend Le Fleur were confronted by a hostile group of persons which included the plaintiff. Le Fleur was first assaulted at the rugby field and in order to avoid further confrontation the third defendant and Le Fleur walked to their respective vehicles and that while they were at their vehicles they were confronted by these people. According to the evidence of Mr Van Rooyen the plaintiff had tried to assault Le Fleur while he was busy reversing his vehicle out of the parking area. According to the third defendant and Mr Van Rooyen the plaintiff together with other people followed Le Fleur as he slowly drove down the gravel road. Le Fleur was not aware that he was being followed by the plaintiff and Abraham. There is a dispute whether the plaintiff and Abraham were armed with knives as they followed Le Fleur. I will however accept the evidence of the third defendant in this regard as it is corroborated by Van Rooyen. It was the third defendant's evidence that when he noticed that the plaintiff and his brother were running behind Le Fleur and the latter was not aware that he was being followed he followed them. At that stage the third defendant had a baton in his hand. On approaching the plaintiff he grabbed him on his right shoulder as at that stage the plaintiff was about three paces away from Le Fleur's motor vehicle. The plaintiff who was armed with a knife turned around and stabbed at the third defendant. On the first occasion the plaintiff did not succeed in stabbing the third defendant as the latter took evasive action. The third defendant thereupon hit the plaintiff with a baton over his left shoulder. The plaintiff stabbed at the third defendant again and on this occasion he succeeded to stab him. When he was about to stab him again the third defendant pulled out a firearm and fired a shot at the plaintiff and wounded him.

[55] There is a dispute as to where the third defendant and the plaintiff were standing in relation to each other at the time of the shooting. The plaintiff for some unknown reason is unable to testify regarding the shooting and stabbing incident. He does not remember how he was shot and what he was doing at the time of the shooting. According to him he did not stab the third defendant on the day in question because he did not have a knife on him. He said that he never carries a knife. His evidence cannot assist in resolving the dispute about where he stood in relation to the third defendant at the time of the shooting.

[57] The evidence of Van Niekerk regarding the position of the plaintiff in relation to the third defendant immediately before the shooting is not entirely reliable. He conceded under cross-examination that the evidence which he gave regarding the shooting incident was based on his own observation as well as what was told to him by other people at the meeting which was held immediately subsequent to the shooting. He also conceded that he did not see the shooting but heard the gunshot.

[59] There is no reason to reject the evidence of the third defendant. He gave his evidence in a coherent manner and answered all the questions put to him. There is no doubt that the third defendant sustained a stab wound on the day in question for which he had to be treated at Stellenbosch hospital. He received 18 stitches. That the third defendant sustained a stab wound is also corroborated by Van Rooyen who testified that when he saw that the third defendant was bleeding he advised him to go to hospital. This finding, however, does not assist the Court in establishing why the third defendant shot the plaintiff in light of the denial of the stabbing by the plaintiff and his witnesses. It is, however, clear from the third defendant's evidence that he did not sustain a stab wound while he was either at the rugby field or while he was assisting Le Fleur to get his motor vehicle out of the muddy area. There is also no evidence that while the third defendant followed the plaintiff and his brother as they ran behind Le Fleur's vehicle someone stabbed the third defendant. The only person with whom he had some physical contact at the time of the shooting on the evidence of Van Rooyen and Krediet is the plaintiff who on the third defendant and Van Rooyen's evidence carried a knife.

[60] The evidence of the third defendant and Van Rooyen regarding the stabbing and shooting incident is more plausible than that of the plaintiff and his witnesses and should accordingly be accepted. The third defendant testified that he shot the plaintiff because the plaintiff was stabbing him. Van Rooyen noticed that the third defendant was bleeding immediately after the shooting and advised the third defendant to go to hospital. The third defendant was treated for a stab wound at Stellenbosch hospital. In the light of these objective facts the plaintiff's denial of stabbing is far-fetched and has no factual basis and his denial that the third defendant was acting in self-defence when he shot him must also be rejected.

[62] It is correct that if a party fails to place the evidence of a witness who is available and able to elucidate the facts before a trial Court such failure leads naturally to the inference that he fears that such evidence will expose such facts unfavourable to him. The effect to be given to the failure of a party to call an available witness depends on the particular circumstances of each case.

[63] In my view the third defendant's failure to call a witness to corroborate Mr Van Rooyen's evidence regarding the incident which occurred on the bus does not affect the sufficiency of the third defendant's evidence regarding the shooting and the stabbing incident. It was the third defendant's version that the plaintiff was in possession of a knife and that he had shot and wounded the plaintiff after he had stabbed him. The third defendant's version regarding the presence of the knife is corroborated by Van Rooyen and in my view in the circumstances calling further witnesses to testify on this aspect of the case would have served merely to corroborate the evidence which is already on record and I am therefore not prepared to draw an unfavourable inference from the third defendant's failure to call a witness to corroborate Van Rooyen's evidence regarding the bus incident.

[64] The next leg of the enquiry is whether the third defendant should have fled from the plaintiff and whether the use of firearm was reasonably commensurate with the threatened danger.

 

[66] His evidence regarding the manner in which the shooting and the stabbing occurred is corroborated by Van Rooyen. The third defendant testified that when the plaintiff stabbed at him he took out a baton and hit him on his left arm but he did not succeed to keep the plaintiff at bay as the plaintiff again stabbed at him and on this occasion wounded him. It was at this stage that the third defendant pulled out the firearm and shot at the plaintiff. It is clear from the third defendant's evidence that he used the firearm after his attempt to overpower the plaintiff by using a baton had failed and in the circumstances I find that the means of defence which the third defendant employed were commensurate with the danger and the use of a firearm was resorted to when other means to avoid harm to the third defendant had failed.

[67] In the circumstances I find the third defendant has succeeded to show on the balance of probabilities that when he shot and wounded the plaintiff he acted in self-defence and that the means he employed were not unreasonable. To sum up, I find that when the third defendant shot and wounded the plaintiff he did not do so whilst he was within the course and scope of his employment with the defendants. He was off duty. I also find that when the third defendant shot and wounded the plaintiff he acted in self-defence.

The Order

[68]    In the result the plaintiff's claim is dismissed with costs.

D H ZONDI
HIGH COURT JUDGE