REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A552/2017
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO

June 2020 .....................
In the appeal between:
MADITSI MPHELA
First Appellant
TSHEPO MATLALA
Second Appellant
and
KATLEGO SANAH RAMATLO
Respondent
JUDGMENT

WANLESS, AJ

Introduction

  1. This is an appeal to the full court of this Division pursuant to the judgment of Baqwa J delivered on the 10th of November 2016 under case number 45224/2014. In the court a quo the Appellants (both attorneys) were held to be liable to compensate the Respondent in respect of damages arising from the breach of a mandate (dealt with hereunder) by the Appellants, together with costs. This appeal is with the leave of the Supreme Court of Appeal (granted on the 26th of September 2017) the court a quo having dismissed the Appellants’ application for leave to appeal to this court.
  2. During or about August 2009 the Respondent gave the Appellants a mandate to institute an action on her behalf against the Minister of Police to claim damages in respect of an alleged assault of the Respondent, on or about the 19th of February 2008, by members of the South African Police Service. It appears to have been common cause at the trial that the Appellants breached that mandate. Certainly, the Appellants never placed any evidence before the court a quo which would have entitled that court to reach a different decision. The issues of liability and quantum were separated in terms of Rule 33(4). Arising therefrom the only real issue which it was necessary for the court a quo to decide was whether or not the Respondent would have been successful, had the action been properly instituted on her behalf, in proving that the Minister of Police was liable to compensate her in respect of her proven damages. As set out above the court a quo held that the Respondent would have been successful in her action and, in the premises, held that the Appellants were liable to compensate the Respondent in respect of all of her proven damages (the issue of the quantum of those damages being postponed sine die by the court a quo).

    Court Order of Saldulker JA and Gorven AJA, at page 5 of the record

  3. In light of the aforegoing the single issue which it is necessary for this court (as a court of appeal) to decide, is whether or not the court a quo erred in its finding that the Respondent would, on a balance of probabilities, have proven that the Minister of Police was liable to compensate the Respondent in respect of an unlawful assault upon her by members of the South African Police Service. In that regard, the relatively crisp issue which was argued in this appeal was whether or not the defence of necessity, as raised by the Appellants in the court a quo, should have been dismissed (as it was by Baqwa J) or upheld. With regard thereto, it was common cause between the parties that the Appellants bore the onus of proving, on a balance of probabilities, that the assault of the Respondent (it being further common cause that the Respondent was shot by members of the South African Police Service by rubber bullets) was justified and therefore lawful.
  4. In rejecting the defence of necessity as raised by the Appellants the court a quo held, inter alia, the following:
    1. Prior to the members of the South African Police Service (“SAPS”) firing a stun grenade and firing at the crowd of persons with rubber bullets shot from shotguns, those members failed to comply with the provisions of Section 9 of the Gatherings Act, No. 205 of 1993 (“the Act”);
    2. The Respondent was not participating in an unlawful and violent protest and, more particularly, the Respondent was not part of the group that damaged property and/or attacked members of the SAPS by, inter alia, throwing bricks and stones at them; and
    3. The Appellants could not rely on the defence of necessity as this defence was not pleaded by the Appellants.
  5. The evidence in the court a quo

  6. At the trial in the court a quo the Appellants (who not only bore the onus of proving that the assault was justified but also attracted the duty to begin adducing evidence) led the viva voce evidence of two (2) witnesses, namely PIETER ALBERTUS VENTER (“Venter”), a Captain in the riot unit of the SAPS (Public Order Policing) at Raslouw and one MOKGANEDI who was, at the time the assault of the Respondent took place, the Deputy Secretary of the Student Representative Council (“SRC”) at the Tshwane University of Technology (“TUT”). He later became the President of the SRC at the same University. The only witness to testify on behalf of the Respondent was the Respondent herself. This judgment will not be burdened by setting out the evidence of these witnesses. Same has already been dealt with in the judgment of the court a quo. Rather, reference will be made, where relevant, to this evidence at the appropriate stage.
  7. The facts

  8. Upon a careful consideration of the aforegoing evidence the facts which are either common cause and/or which could not be seriously disputed by either the Appellants or the Respondent, are, inter alia, the following:
    • On the 19th of February 2008 a crowd of students were protesting at the main campus of TUT in Pretoria;
    • These students were damaging immovable property at that campus;
    • As a result of the aforegoing members of the SAPS riot unit were called to the campus;
    • When those members arrived at the campus there was a large crowd (at least 500) of students protesting;
    • The members of the SAPS went to the administrative building where a meeting was being held between the SRC and the management of the University;
    • The administrative building was surrounded on all sides by the large crowd of protesting students;
    • As the members of the SAPS arrived at the said building the crowd of protesters began to throw stones at them;
    • Having entered the building (being let in by a security guard as the building had been locked)) the members of the SAPS established that the windows at the front of the building, which are made of thick glass, had already been damaged by the protestors throwing stones at the building;
    • The protestors tried to gain access to the building but were prevented from doing so by, at first, the campus security who, shortly thereafter, were assisted by members of the SAPS;
    • Members of the riot squad had by now also been joined by members of the SAPS from other units/police stations bringing the total number of members of the SAPS on the scene to approximately 50;
    • A stun grenade was used in an attempt to disperse the large crowd of protestors and to prevent these persons from further damaging the building;
    • It then appears that rubber bullets (without a warning to the protestors to disperse) may have been shot from shotguns at protestors who were running away;
    • When this did not deter all of the protestors (a number of them ran away and then came back to throw more stones) the members of the SAPS, without giving the protestors prior warning that they would do so if the protestors did not disperse, once again opened fire on the crowd with rubber bullets shot from shotguns;,
    • The Respondent was part of the group of students that day. On her version she was seated at the rear of the crowd. She heard a noise. People began to run from the Administration building towards her. In light thereof she also ran away from the said building.The police started firing at the crowd and she fell down. The Respondent was shot with rubber bullets, one just above her buttocks near her right thigh and the other on her left arm;
    • A number of police motor vehicles were damaged during the protest;
    • Certain students involved in the protest were arrested for public violence and for causing damage to property (buildings; fire extinguishers and motor vehicles).
  9. The law

  10. In the matter of Petersen and Another v Minister of Safety and Security 2010 (1) SA 19 (SCA), at paragraph [11], it was held:
    • “Can it be said that in these circumstances the police action which caused J’s injuries does not attract liability because it was justified in circumstances of necessity? Unlike self-defence-also referred to as private defence-the defence of necessity does not require that the defendant’s actions must be directed at a wrongful attacker. There was therefore no need for the respondent to establish that J was himself part of the attacking crowd.
  11. Further, in the matter of Maimela and Another v Makhado Municipality and Another 2011 (6) SA 533 (SCA), at paragraphs [18] and [19], it was held:
    • “[18] It may well be that Dayhana was not participating in the attack upon Nkuna when he was struck by a bullet-Maimela’s testimony that he was not has to be accepted in the absence of evidence to the contrary-hence the defence of necessity. But to escape liability for Nkuna’s actions the respondents were not required to establish that Maimela and Davhana were part of the attacking crowd………….
    • [19] …It may well be, and in all probability is so, that most of the crowd were not close enough to physically participate in the assault. But it is precisely these situations that the defence of necessity seeks to cover.”
  12. Finally, in the matter of Chetty v Minister of Police 1976 (2) SA 450 (NPD), in an action for damages arising from an assault, the court held that the Minister of Police could only escape liability if the following requirements were satisfied:
    • There must have been reasonable grounds for thinking that, because of the crowd’s behaviour, there was such a danger (commenced or imminent) of injury to persons or damage to or destruction or loss of property as to require Police action. Whether or not such a situation existed must be considered objectively, the question being whether a reasonable man in the position of the Police would have believed there was such a danger.
    • The means used in an endeavour to restore order and avert such danger, and resulting in one or more members of the crowd being injured, were not excessive having regard to all the circumstances, such as the nature and the extent of the danger, the likelihood of serious injury to persons, the value of the property threatened, etc.
  13. Conclusion

  14. The relevant subsections of section 9 of the Act are set out in the judgment of the court a quo. Subsection 9(3) is of particular importance and reads as follows: “No common law principles regarding self-defence, necessity and protection of property shall be affected by the provisions of this act”. Whilst the learned Judge, in his judgment, dealt in passing with the provisions of the Act setting out, inter alia, the steps to be taken by members of the SAPS when dealing with a gathering or demonstration he failed, both in that judgment and also in his judgment pertaining to the application for leave to appeal to refer to the provisions of subsection 9(3) thereof.
  15. The provisions of subsection 9(3) of the Act are clear and unambiguous. As such, they do not raise any difficulties in the interpretation thereof. This deeming provision provides that the provisions of the Act do not oust the common law principles applicable to self-defence; necessity or protection of property. In the premises, to the extent that the learned Judge held that the failure of the members of the SAPS to comply with the provisions of the Act did not entitle the Appellants to rely on the defence of necessity, cannot, with respect, be correct.
  16. This court now turns to consider the findings of the court a quo, in favour of the Respondent, that the Respondent was not participating in an unlawful and violent protest and, more particularly, the Respondent was not part of the group that damaged property and/or attacked members of the SAPS by, inter alia, throwing bricks and stones at them.
  17. In the first instance, it has been clearly established in our law that it is not necessary for a party to succeed in raising the defence of necessity to prove that the actions taken were directed at a wrongful attacker. Arising therefrom, it is not necessary for a Defendant, to successfully raise the defence of necessity, to prove 6Paragraph [29] of the judgment of the court a quo at page 54 of the record
    7At pages 64 to 68 of the record
    8Waenhuiskrans Arniston Rate Payers Association and Another v Verreweide Eiendoms Ontwikkeling (Edms) Bpk and Others 2011 (3) SA 434 (WCC) at paragraph 146; Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at paragraph 18.
    9Paragraphs [28] and [29] of the judgment of the court a quo at pages 53 and 54 of the record
    that a Plaintiff was part of an attacking crowd which gave rise to that Defendant having to take the actions he did. These principles have been clearly set out by the Supreme Court of Appeal in the matters of Petersen and Another v Minister of Safety and Security(supra) and Maimela and Another v Makhado Municipality and Another(supra) both of which are binding upon the court a quo. As to the fact that the protest was lawful, this has no bearing on the ability or otherwise of the Appellants to successfully rely on the defence of necessity. Certainly, the protest, on the common cause and/or undisputed facts of this matter, could never be described as peaceful.
  18. A further reason for the court a quo finding in favour of the Respondent was that the Appellants did not plead the defence of necessity and could therefore not rely thereon. Our courts have, for some time now, held that the parties are limited to their pleadings and that it is impermissible for a party to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another. Of equal importance, since pleadings are made for the court and the court is not made for the pleadings, is that it is for the court to determine the real issues between the parties, provided no real prejudice can be caused to either party and then to decide the case on those real issues. In this regard a court has a wide discretion. Further, the court is not bound by the pleadings if the parties themselves enlarge or expand upon the issues pleaded at trial. 10Paragraph [35] of the judgment of the court a quo at page 56 of the record
    11Nyandeni v Natal Motor Industries Ltd 1974 (2) SA 274 (D) and approved in a number of cases.
    12Spearhead Property Holdings Ltd v E&D Motors (Pty) Ltd 2010 (2) SA 15 (SCA) at 15H-16A; Imvula Quality Protection (Pty) Ltd v Loureiro 2013 (3) SA 407 (SCA) at 423D-E
    13Imprefed (Pty) Ltd v National Transport Commission 1993 93) SA 94 9A) at 108E; Stead v Conradie 1995 (2) SA 111 (A) at 122B.
    14Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at45D
  19. In the present matter not only was necessity sufficiently pleaded by the Appellants in order to pertinently raise the defence of necessity at trial but further, it is clear from the record of the proceedings in the court a quo, that both the court and the parties (with particular reference to the Respondent) were, at all material times, aware of the fact that the Appellants relied on the defence of necessity. Evidence in respect thereof was placed before the court a quo with no objection thereto by the Respondent. Furthermore, the Respondent was not prejudiced in any manner whatsoever in the manner in which she conducted her case at the trial. It is also imperative to note that it was agreed between the parties and was accepted by the learned Judge that the Appellants had attracted both the onus of proof and the duty to begin adducing evidence. This would not have been the case in the event of the Appellants having failed to properly plead the defence of necessity and all parties being fully apprised of the fact that this defence was an issue to be determined at trial.
  20. In the premises, this court finds that the court a quo erred in making the findings that it did when rejecting the defence of necessity relied upon by the Appellants and holding that the Appellants are liable to compensate the Respondent in respect of all of her proven damages.
  21. Insofar as the defence itself is concerned the judgment of the court a quo does not (apart from the findings dealt with herein) deal with the facts of the matter and decide whether or not, based thereon, the Appellants discharged the onus incumbent upon them to prove, on a balance of probabilities, that the members of the SAPS were justified in acting as they 15Sub-paragraph 3.2.1.2 of the Appellants’ Amended Plea at page 19 of the record
    16Paragraph [17] of the judgment of the court a quo at page 46 of the record
    17Paragraph 4 ibid
    did. In the absence of such a finding, it is incumbent upon this court to render a decision in respect thereof.
  22. What the Appellants had to prove at the trial to establish the justification defence of necessity is as set out, inter alia, in the matters of Petersen and Another v Minister of Safety and Security (supra) and Chetty v Minister of Police (supra). The accepted facts of this matter have already been set out herein. When one applies those facts, it is clear, from that which is set out hereunder, that the Appellants proved, on a balance of probabilities, the defence of necessity.
  23. When members of the SAPS arrived on the scene the crowd was already causing damage to property. Members of the public were inside the administrative building. Before the members of the SAPS were able to enter the administrative building the crowd started throwing stones at them. The administration building was surrounded by the large crowd. The crowd were causing serious damage to the administration building to the extent that the front windows made of thick glass had been broken. Even after the riot unit was joined by members of the SAPS from other units/police stations the crowd (approximately 500) vastly outnumbered the members of the SAPS (approximately 50).The crowd attempted to enter the administration building where members of the public; a few security guards and the members of the SAPS were essentially trapped. Whilst members of the SAPS tried to keep the crowd away from the 18Paragraphs [7] to [9] ibid
    19Paragraph [6] ibid
    20Evidence of Venter; page 71; lines 12 to 16 of the record
    21Evidence of Venter; page 72; lines 2 and 3 and page 73; lines 8 to 10 of the record
    22Evidence of Venter; page 72; lines 11 to 18 of the record
    23Evidence of Venter; page 73; lines 1 to 3 of the record
    24Evidence of Venter; page 73; lines 20 to 25 of the record
    25Evidence of Venter; page 74 of the record
    administration building the crowd continued to throw stones. A stun grenade (or grenades) and rubber bullets shot from shotguns, were used to keep the crowd away from the administration building to prevent the crowd from further damaging that building.
  24. From, inter alia, the aforegoing, it is clear that the crowd were causing serious damage to property of the University and were intent on injuring members of the SAPS. Those members were justified in taking reasonable measures to protect that property and themselves from injury. Also, it is reasonable to infer from the evidence that these members of the SAPS were also obliged to protect the security guards and members of the public who were inside the administration building from being injured. It was the evidence of Venter that the steps taken by the members of the SAPS to attempt to disperse the crowd were the only steps available. This evidence is supported by the fact that even after firing rubber bullets in an attempt to disperse the crowd, part of the crowd returned to the administration building and continued to throw stones at the building and members of the SAPS.
  25. In light of the aforegoing this court finds that, considered objectively, reasonable grounds existed for thinking that, because of the crowd’s behaviour, there was such a danger (commenced and/or imminent) of injury to persons or damage to or destruction or loss of property as to 26Evidence of Venter; page 74; lines 19 to 23 of the record
    27Evidence of Venter; page 74; line 23 to page 75; line 7
    28Evidence of Venter; page 75; line 25 to page 76, line 2 of the record
    29Re-examination of Venter at page 93; lines 1 to 3 of the record
    require Police action. Further, this court finds that a reasonable man in the position of the members of the SAPS on the 19th of February 2008 would have believed there was such a danger. Moreover, this court holds that the means used in an endeavour to restore order and avert such danger, resulting in the Respondent being injured, were not excessive having regard to all the circumstances, such as, inter alia, the nature and the extent of the danger; the likelihood of serious injury to persons and the value of the property threatened.
  26. It must follow therefrom that the Appellants have been successful in this appeal. In the premises, this court makes the following order:
    • The appeal is upheld;
    • The order of the court a quo under case number 45224/2014 made on the 10th of November 2016 whereby the Appellants (Defendants in the court a quo) were found one hundred percent (100%) liable for the proven damages suffered by the Respondent (Plaintiff in the court a quo) as a result of the breach of the contractual mandate to sue the Minister of Police and the Appellants (Defendants in the court a quo) were ordered to pay the Respondent’s (Plaintiff in the court a quo) costs , is set aside and replaced with the following order, namely:

      “The Plaintiff’s action is dismissed, with costs”;
    • The Respondent is ordered to pay the costs of the appeal, including the costs of the application for leave to appeal in the Supreme Court of Appeal and the costs of the application for leave to appeal in the court a quo.
_____________________________
BC WANLESS
ACTING JUDGE OF THE HIGH COURT
I agree
_____________________________
VV TLHAPI
JUDGE OF THE HIGH COURT
I agree
_____________________________
JJ STRIJDOM
ACTING JUDGE OF THE HIGH COURT