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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 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 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 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 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:

1. The defendant admits that on 24^th 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.

2. Accordingly, the members of the South African Police Services, acting within the course and scope of their employment, acted lawfully as the 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

(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 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 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 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 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 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 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 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

1. for pain and suffering, loss of amenities of life, and contumelia in the sum of R150 000-00; and

2. 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 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 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 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 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 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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