HIGH COURT OF SWAZILAND
the matter between:
COMMISSIONER OF POLICE 1st Defendant
ATTORNEY- GENERAL 2nd Defendant
Plaintiff: Mr Z.W. Magagula
Defendant: Ms S. Maseko (Attorney-General's
Plaintiff was injured by a member of the Royal Swaziland Police
(R.S.P.) at Lundzi on the 13th October 1999. He sustained certain
injuries on his right leg. He now claims the following:-
and suffering - E200.000.00
expenses - E300.00
of Amenities of life - E49 900; interest and costs
main dispute for resolution by this Court revolves around the
circumstances in which this shooting incident occurred.
to the Plaintiff, he was attacked, assaulted and shot by members of
the R.S.P. from Bhunya Police Station. Aside from the injuries
sustained from the gunshot, the Plaintiff alleges that he was further
assaulted by the aforesaid R.S.P. with fists and kicked with heavy
boots. The Plaintiff alleges further that these assaults occurred
whilst the R.S.P. were acting in the course of duty and within the
scope of their employment.
Defendants on the other hand admit that the Plaintiff was shot on the
date in question by the R.S.P. from Bhunya Police Station. They
however deny that the Plaintiff was assaulted with fists and further
deny that he was kicked. They further contend that the shot fired by
the R.S.P. was not wrongful or unlawful nor that it was without
probable cause. It is their contention that the Plaintiff was shot by
the R.S.P. acting in terms of the provisions of Section 41 of the
Criminal Procedure and Evidence Act No.67/1938 (hereinafter referred
to as "the Act".), after he attempted to flee
notwithstanding an order for him to stop.
way of curtailing the length and duration of the trial, it was agreed
by counsel on both sides that the only question to be determined was
whether the R.S.P. had in shooting the Plaintiff acted properly in
terms of the aforesaid provisions of the Act. There were however, in
the course of evidence being led, other contentious issues which I
may not be called upon to decide in view of the narrow parameters of
the legal question to be determined but based on the facts proved.
The one important issue that did emerge and forms part of the
judgement relates to the circumstances in which the Plaintiff was
shot as there were conflicting versions.
proceeding with this matter any further, I must once again, as I have
done on some previous occasions, note with dissatisfaction the scant
regard paid by the Plaintiff's attorneys to the mandatory provisions
of Rule 18 (10) of the High Court Rules, 1990 (as amended) in the
drafting of the Plaintiff's Particulars of Claim. The nomenclature in
that Rule, which as I have stated, is couched in peremptory language
provides as follows:-
A plaintiff suing for damages shall set them out in such a manner as
will enable the defendant reasonably to assess the quantum thereof:
that a plaintiff suing for damages for personal injury shall specify
the date of birth, the nature and extent of the injuries, and the
nature, effects and duration of the disability alleged to give
to such damages, and shall as far as practicable state separately
what amount, if any, is claimed for-
costs, and hospital and other similar expenses, and how these costs
and expenses are made up;
and suffering, stating whether temporary or permanent and which
injuries caused it;
in respect of-
earning of income, stating the earnings lost to date and how the
amount is made up and the estimated future loss and the nature of the
work the plaintiff will in future be able to do;
enjoyment of amenities of life, giving particulars and stating
whether the disability concerned is temporary or permanent; and
with a full description thereof and stating whether it is temporary
is clear that no attempt to address the requirements of the aforesaid
provision has been made by the Plaintiff. The Rules have been
designed to smoothen litigation and in cases to also prescribe all
necessary allegations to conduce finalisation of litigation and where
applicable, to elucidate issues, factors which redound to the benefit
of all involved in trial proceedings.
the case of JESSIE SHONGWE N.O. VS SAMUEL SHONGWE CIV.APPEAL 76/93,
Melamet J.P. (unreported), made some lapidary remarks about Rules of
Court, which remain true as they were then. He stated the following
at page 5:-
behalf of the Appellant it was contended that there was a general
ineptitude amongst practitioners in complying with the rules and that
strict compliance with the rules was not regarded as essential. This
comes as a surprise to me and if it is in fact so, it is a practice
which must cease forth with. The rules of court are intended to
introduce certainty and facilitate the speedy administration of
compliance, therefore, will introduce uncertainty and frustrate the
administration of justice. It encourages negligence amongst
practitioners and in the absence of good and sufficient reason, will
not be condoned. " (my emphasis)
also the remarks of Tebbutt J.A. in ANDRIES STEPHANUS VAN WYK &
AND V BRL, A DIVISION OF BARLOWS CENTRAL FINANCE CORPORATION CIV.
APPEAL delivered on 30th November 2001 (unreported). I must however
apportion some blame to the Defendant's attorneys where
non-compliance with this sub-Rule is concerned. In terms of the
provisions of Rule 18 (12), if a party fails to comply with any of
the provisions of Rule 18, the pleading will be deemed to be an
irregular step, thereby entitling the opposite party to proceed in
terms of Rule 30. This is what the Defendants must do in the future.
the case of JULUKA DLAMINI VS THE ATTORNEY GENERAL CASE NO.3073/96
(unreported), I remarked extensively regarding what now appears to be
a chronic failure by many practitioners in this Court to pay heed to
the provisions of the aforesaid sub-Rule.
Magagula has fairly conceded the above shortcoming in the particulars
of claim but has urged this Court to condone the non-compliance
without addressing the Court on the main requirement for granting
condonation, namely, a full, satisfactory and reasonable explanation
for the failure to comply therewith. He cannot plead ignorance of
this sub-Rule as the Rules as amended, were promulgated some twelve
(12) years ago. There is in my view no cogent explanation for the
failure. All that the Court is now urged to do is to, oblivious to
legal requirements, exercise mercy and allow this matter to proceed.
The failure to comply with the clear and unambiguous and peremptory
provisions of the Rules hoping that the Court will have its
conscience sufficiently pricked and moved by maudlin sympathy, to
jettison the Rules must be the fossil of an old dispensation. It is
the last time that I allow such an application.
practitioners presently in default of compliance with the said
sub-Rule, must on reading this judgement invoke the provisions of
Rule 28 and ensure compliance forthwith. I am no longer prepared to
proceed with any trial in which there is a claim for personal injury
but no corresponding compliance with the said sub-Rule in particular.
Any vestige of mercy
I may have had in this regard has, due to previous applications worn
so thin that it will no longer be in supply at a subsequent hearing.
These remarks are no idle threat and let all practitioners be warned.
I will use my discretion in casu to allow this action to proceed
without creating a precedent however.
Plaintiff's evidence was to the following effect: He is 28 years old
and presently unemployed. On the date in issue, he was employed at
Lundzi Primary School as a temporal teacher. Recounting the events of
the date in question, the Plaintiff testified that it was a Wednesday
and was in his house which he shared with another teacher. As he was
preparing to retire, at about 20h00, he heard some footsteps around
the back of his house, which was rather anomalous as there was no
footpath there. The Plaintiff, who was in pyjama shorts and a jersey
decided to investigate although it was dark outside and there was no
electricity in the area.
opened the door and before he could come out of the house completely,
he met a tall man who tried to grab him. It appeared that this man
had been there for some time as he was not the one whose footsteps
led to the back of the house. This man said nothing but started
assaulting the Plaintiff as he tried to break free from the man's
grip. This man spoke to the person at the back of the house, saying,
"here is the dog". Both men were dressed in plain clothes.
Neither of them introduced themselves.
soon as the second man came, the Plaintiff was overpowered and he
fell to the ground. At that point, Plaintiff attempted to run away
but he heard the sound of gunfire whilst he was still on the ground.
The Plaintiff testified that at this stage, he was lying on his back
facing upwards, having pulled his knees and hands towards his chest.
It is his testimony that it is at this stage that he was shot, having
been unable to see that his assailants were armed. After the shot,
the assaults on his body subsided. He thereafter rose to his feet,
ran for some sixty metres and then fell to the ground on his stomach.
The two men were joined by a third man and they handcuffed his arms
to his back. He was caused to walk to his house limping after being
shot. He was not assisted in walking. His house was dark,
necessitating that they go and look for matches at the house of the
headmaster, Mr Mdluli who also joined them.
arrival at the Plaintiff's house, the men then introduced themselves
as R.S.P. members and that they had come to conduct a search of the
Plaintiff's house in connection with money that went missing from the
school. They proceeded with the search and intermittently assaulted
the Plaintiff with open hands. The R.S.P. noticed that Plaintiff had
been injured and at that stage were praising the one who discharged
the firearm for his good marksmanship. They never bothered to
investigate the nature and extent of the injuries sustained by the
Plaintiff's roommate then arrived and he investigated what was
happening. They proceeded to assault Plaintiff in his roommate's
presence. After failing to find the money, they showed the Plaintiff
where their vehicle was parked, some five hundred metres away.
Plaintiff's roommate assisted him to the motor vehicle and on the
way, he returned to the house to fetch a bandage in order to dress
the wound. At this stage, the Plaintiff was still handcuffed and was
driven to Mhlambanyatsi Clinic where he was not attended but was
instead referred to Mbabane Government Hospital.
Plaintiff told the Court that he sustained an injury below the right
knee and on the posterior of the right thigh. According to him, the
bullet entered in the foot and went up to the thigh as he was lying
down. At Mbabane Government Hospital, the Plaintiff was admitted for
three days despite protestations by the RSP who were bent on taking
Plaintiff with them. He was handcuffed to a hospital bed with no
guard in sight for the entire three days of admission. On the third
day, a Friday, he was not discharged but was taken away by the R.S.P.
without the Doctor's sanction.
further testified that he experienced a lot of pain from the shooting
even after leaving hospital, as he was still limping. From Mbabane,
he was taken to Mhlambanyatsi en route to Bhunya where he was
detained. According to him, he had no tablets or any medication
prescribed and only managed to secure some after his relatives
visited him. He visited Dr JJ. Vilakazi and a Mr Smith who prescribed
some medication for him. The Plaintiff also informed the Court that
he was subsequently acquitted of the theft charges.
was his further evidence that he spent around E300.00 for hospital
expenses and proceeded to confirm the claims reflected in his
particulars of claim. He further testified that he was able to walk
normally after three months from the occurrence of the incident.
cross-examination, the Plaintiff told the Court that he went to
investigate who the person outside was as he thought it was his
roommate. It was suggested to him that the RSP had come to arrest him
prior to 13th October 1999, but Plaintiff said he did not recall
this. He told the Court that the was unaware that he had fled when
RSP came to arrest him earlier and that this was in front of the
was put to him that on the day in question, the RSP knocked on his
door and he opened the door. This was denied. It was put to him that
there was there were two RSP at the door, not one but Plaintiff
insisted there was one officer. It was further put to him that
Mthethwa (DW 3) introduced himself and the other officers and
exhibited their identify cards but this Plaintiff denied. It was put
to him that as they explained their mission, the Plaintiff pushed one
officer and ran away. He was ordered to stop but to no avail and
others heard the order for Plaintiff to stop. As a result, RSP fired
two warning shots but still, the Plaintiff did not stop. Since there
was no way to stop him, a third shot was fired and which hit the
Plaintiff. All these issues were denied by Plaintiff and he insisted
that he only heard one shot being fired.
was put to him that he was never assaulted with fists and was never
kicked. This was denied. He told the Court that other than the
gunshot injuries, he did not sustain any other and that he was
treated for the gunshot injuries only. Plaintiff denied that the RSP
were carrying a torch.
re-examination, the Plaintiff denied that RSP had ever come looking
for him at Lundzi prior to 13th October 1999. The Plaintiff, in
response to questions by the Court testified that he was manacled to
a bed at the hospital with no officer to attend to him. As a result,
he could not answer the call of nature for the three days he was
there although he was drinking water. He could not take food.
2 was Dr Kingsley Dundun, an Orthopaedic surgeon who testified that
he attended the Plaintiff at the Government Hospital on the night of
the 13th October 1999 and prepared a
of his findings. It was his evidence that he noted three injuries on
Plaintiff, all consistent with gun wounds as evidenced by burn marks
and metal bullet fragments inside. He opined that one of the wounds
suggested that the Plaintiff may have been shot at short distance. He
could not recall if the Plaintiff was admitted on the night in
question but suspected that he could have been, owing to the serious
injuries he had sustained.
cross-examination, PW 2 testified that he did not remove any bullet
from the Plaintiff. He also testified that it appeared that Plaintiff
may have been shot at least two times. It was put to him that the
wound on the posterior of the thigh was not a gunshot wound. His
response was that it had bum marks and metal fragments from x-ray
pictures, indicating a great likelihood that they were gunshot
wounds. The Plaintiff was not treated for other injuries he knew of.
He also testified that there were no disabilities from his assessment
then as the movement of toes was normal and there were no signs of
neurological defects then. He handed in his report which was marked
re-examination, PW 2 agreed that all three wounds could have resulted
from the shot, depending on the victim's posture at the time of
shooting. According to him, the Plaintiff could not have healed
completely in three days. At this juncture, the Plaintiff closed his
of the Plaintiff's evidence.
Applicant was in my view not entirely truthful and honest. I formed a
distinct impression in respect of certain matters that he was making
facile attempts to mislead the Court. He was also, in my view, guilty
of exaggerating the occurrence of certain events. Incidents which
protruded as a sore thumb in regard to the above matters include the
the Plaintiff exhibited signs of uncomfortableness and this was only
when he was subjected to cross-examination by the defence. The first
incident was when it was put to him that the RSP had come to arrest
the Plaintiff at his school and that he fled in front of the school
children and skipped over the fence. Although he denied this, he was
very hesitant. This was also repeated when put to him that he started
fleeing on the night in question after the RSP ordered him to stop.
Again he was very hesitant and exhibited signs
overheating, redolent of the timeless remarks by Osborne in his work
entitled, "The Mind of the Juror 1937", at page 86, where
the following appears;
witnesses speak...not by words alone ...Their faces and their
changing expressions maybe pictures that prove the truth of ancient
Chinese saying that a picture is equal to thousand words..."
there are improbable aspects surrounding the Plaintiff's story. It is
inconceivable that a person shot, at such close range by a powerful
firearm as an R4 rifle and sustain the injuries described in the
report, particularly the one on the posterior of the thigh would be
able to run for a distance of about 60 metres before falling down.
Furthermore, with such serious injuries, it would be unlikely that
the Plaintiff, as he alleges, walked unassisted from the point where
he was allegedly shot to his house, to the Headmasters house and back
and later to the motor vehicle. The injuries sustained by the
Plaintiff are admittedly serious and this was testified by PW 2.
the Plaintiff alleges that he was admitted for three (3) days at the
Mbabane Government Hospital but was manacled to a bed for the entire
duration of his admission. This is inconceivable. He told the Court
that he was not allowed to go to the toilet during this time. This
becomes inexorably unbelievable when regard is had to the fact that
the Plaintiff was during the three days of anguish imbibing liquids.
It is common cause that there are hospital wards reserved for
suspects who are to be under security. No hospital can allow a
patient to be manacled to a bed without movement for three days. I
reject the Plaintiff's story in this regard as improbable and untrue.
his explanation of how he came out to investigate the cause of the
noise at his house is also unsatisfactory. In chief, he stated that
he heard the footsteps behind the house and then chose to open the
door to see who was there. When put to him as to how he could go out
at night not knowing who was outside, he responded by saying that he
thought it was his roommate, although earlier, and in chief, he
discounted the possibility of that being his roommate as the latter
knew the way to the entrance and was in any event a teetotaller
according to him.
his assertion of the position from which he was shot defies logic. It
is not clear which the entry and exit wounds are on the lower knee
from Exhibit "A". As it is accepted by all parties that one
bullet struck the Plaintiff, it is inexplicable how the bullet would
enter and exit at the points shown and also injure the Plaintiff in
the area below his right thigh. The posture he alleges he had
maintained when he was shot is inconsistent with the position of the
injuries sustained in my view. From exhibit "A" Form A, it
would appear that the entry wound was the one on the back of the
right leg, which is consistent with the defence story and which will
testified by S/I Nxumalo, the R4 Rifle has an effective shooting
range of 600 metres. If it is true that the Plaintiff was shot in the
position which he alleges i.e. less than one (1) metre away, he could
have sustained more severe injuries or could have even died as DW 3
testified. In this regard, the Plaintiff's story is improbable. The
burn marks noted by the Doctor as being indicative of the shooting as
having been from close range would be consistent with the use of the
R4 Rifle with such long range being used to shoot at a target some 30
to 40 metres away.
defence paraded four (4) witnesses. DW 1 was Nelson Vusumuzi Masuku,
Plaintiff's roommate. He informed the Court that he returned to the
house at around 20h00 and the headmaster called him as he entered the
house. He testified that after DW 2 refused to talk privately to
Plaintiff, the latter admitted having taken the money and offered to
repay it. It was his evidence that he was in good terms with the
Plaintiff and he dressed the Plaintiff's wounds. He further testified
that it was dark but Nhlabatsi the Police officer was carrying a
torch. He denied that the Plaintiff was ever assaulted by the RSP in
his presence. He denied hearing any gun shot.
2 was Albert Mandla Mdluli, the Plaintiff's head teacher at the time.
He testified that he reported the loss of the money to the RSP.
Regarding the events of the day in question, he testified that around
noon, he went to look for Plaintiff at his house and at his classroom
at the RSP's behest but Plaintiff was not in. The RSP were also
same evening, around 20h00, whilst listening to the radio, he heard a
voice saying loudly, "Mzwandile, we are members of the R.S.P.,
do not run away". He heard footsteps after that and later, two
gunshots next to his house. The third, he heard next to the school
toilet. A few minutes later, a person came to his door, announcing
himself as an R.S.P. member. He was told to open the door. He
obliged. He found Nhlabatsi carrying a torch and Plaintiff was
crying. DW 2 noted that Plaintiff had sustained injuries and they
proceeded to the Plaintiff's house.
confirmed that Plaintiff tried to speak to him privately, but he
declined. Plaintiff eventually confessed to having taken the money
and offered to repay it. DW 2 declined the offer. Plaintiff was
bandaged and later assisted to the R.S.P. vehicle outside the gate.
The following day, DW2 went to report to Plaintiff's parents what had
befallen him, regarding the shooting and his arrest. DW 2 also
confirmed that Nhlabatsi was carrying a torch, which provided a light
to all of them. It was his further evidence that the R.S.P. shouted
to Plaintiff to stop on three (3) occasions before he heard the
gunshots. He was cross-examined at length.
3 was 3473 Constable Mxolisi Mtsetfwa, who testified that on the date
in question, he, in the company of 2912 Constable Malinga (DW 4) and
2566 Constable Bongani Nhlabatsi (now deceased) went to Lundzi
Primary School in a Police van. They went to investigate the case
reported by DW 2. DW 3 was carrying an R4 Rifle with 15 live rounds
of ammunition. Nhlabatsi was carrying a torch, while DW 4 was
carrying a magnum revolver with six live rounds of ammunition. They
arrived at around 19h30 and parked the vehicle outside the school
gate as the main gate was locked.
walked to PW 1's house and on arrival, DW 4 went towards a small
window of the house, whilst DW 3 and Nhlabatsi went to the front
door. The latter knocked on the door whilst DW 3 stood on the side. A
person emerged from the house wearing pyjama shorts. Nhlabatsi shone
the torch to the person, PW 1 and greeted him. DW 3 then introduced
themselves and Nhlabatsi knew him. As DW 3 was taking out the
identity card, PW 1 jumped out of the house at great speed knocking
ran away. Nhlabatsi shone the torch at him as DW 3 told him to stop
but to no avail. They gave chase at the same time yelling at him to
stop but PW 1 would not stop. DW 3
fired two (2) warning shots in the air but PW 1 was still undeterred
in his resolve to disappear from the scene. He ran in the direction
of some thick forests behind the school
Nhlabatsi was shining the torch at him and DW 3 shot PW 1 on his leg.
fell down on some wattle tree stumps which had been left protruding
from the ground. They ran to him with DW 4 who had joined them by
now. PW 1 was lying facing upwards. DW 3 asked why he was running
away and PW 1 apologised. DW 3 produced an identity document. He
cautioned him in terms of the Judges' Rules and PW 1 told them that
the money was in the house. They realised that PW 1 had sustained
injuries and Nhlabatsi supported him. They proceeded to DW 2's house
and identified themselves. PW 1 asked to speak privately to DW 2 who
declined. They proceeded to DW 1 's house where he told them there
was no money. He offered to repay it though.
1 then arrived and he was later asked to dress PW 1's wounds. DW 3
also asked DW 1 to give some clothes to PW 1 so that he could be
transported to hospital. Nhlabatsi supported him to the gate. He was
taken to Mhlambanyatsi Clinic, where first aid was administered to
him and was later taken to Mbabane Government Hospital where he was
Doctor, after seeing him asked if DW 3 wanted to take PW 1 with him
or not. DW 3 opted to take him as there was no security in the wards.
He was however ordered to being PW 1 back the following day for
x-rays, which he did. PW 1 was taken to Bhunya Police Station, where
he was detained. The Doctor told DW 1 there was no fracture and that
DW 1 would heal quickly but had to be brought now and again for
treatment. DW 3 denied that PW 1 was admitted in hospital. It was his
evidence that PW 1 was shot some 30 - 45 metres away from his house.
DW 3 denied that the wound on the posterior of the thigh was a
gunshot, alleging that the Plaintiff fell onto a sharp wattle stump
when he was shot. He denied that PW 1 was ever handcuffed to a bed.
He was also cross examined at length.
4 was 2912 Constable Kenneth Nhlabatsi, who was with DW 3. He in
large measure confirmed the evidence of DW 3 in material respects. He
however did not see what occurred at the door of PW 1's house. His
last involvement with PW 1 was when they returned from Mbabane
Government Hospital on the 13th.
of Defence Case.
defence witnesses were largely truthful and consistent in the crucial
aspects of their evidence. In particular, I was impressed by DW 1 and
DW 2. There are certain matters in which there were some
contradictions e.g. whether or not the R.S.P. were in uniform, on the
night in question; who assisted PW 1 after he was shot; whether the
R.S.P. had come to investigate the issue or to effect an arrest.
These are however issues which are in my view not crucial and do not
detract materially from the general impression I formed on the
truthfulness of their account. It is trite that the Court is at
large, whilst accepting a portion of a witness' evidence, to reject
are now before Court two conflicting versions regarding how the
Plaintiff was shot and these versions are mutually destructive. There
is the Plaintiff's version on the one hand and that of the Defence on
the other. The proper approach to be adopted in such cases was stated
with absolute clarity by Eksteen J. in NATIONAL EMPLOYER'S GENERAL
INSURANCE CO. LTD VS JAGERS 1984 (4) SA 437 (A) at 440 E - G, where
it was held that in such cases, the Plaintiff will have made out a
satisfies the Court on a preponderance of probabilities that his
versions is true and accurate and therefore acceptable, and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether that evidence
is true or not the Court will weigh up and test the plaintiff's
allegations against the general probabilities. The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true. If however, the probabilities are
evenly balanced in the sense that they do not favour the plaintiff's
case any more than they do the defendant's, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his evidence is true and the Defendant's version is false. "
the reasons set out previously, it is my finding that the Plaintiff's
story is not probable. The defence story is in my view more probable
because other than the Police Officers, DW 3 and DW 4, the shouts for
the Plaintiff to stop were heard by DW 2, who although Mr
criticised was unmoved on this point. Although he was the
complainant, it was not put to him that he was concocting evidence
for any ulterior motive. In any event his whole conduct towards the
Plaintiff after the shooting was not one of an interested
complainant, suggesting that in respect of the theft case PW 1 had
gotten his just desert. He assisted the Plaintiff and even went to
report to Plaintiff's parents what had occurred. He struck me as an
impressive witness even under cross-examination not withstanding that
he may have been the complainant.
also testified that he heard three shots after the shouts for PW 1 to
stop. Two were next to his house and the last one next to the toilet
some 30 to 35 metres away from his house. This is also consistent
with DW 3's evidence. I therefor reject the Plaintiff's story that
only one shot was fired and proceed to reject his story that no
source of light was provided. DW 1 to DW 4 are in unison that
Nhlabatsi was carrying a torch on the night in question. Even DW 1,
who was a disinterested and dispassionate witness confirmed this.
the foregoing reasons it is my view that the Plaintiff's version of
the shooting be rejected. The case must therefor be decided on the
Defendant's version. In view of PW 2's evidence that there were metal
fragments found also in the wound on the posterior of the thigh, I am
prepared to accept that that wound was also caused by the same
bullet. In any event, there is no medical or other evidence to
support the Defendants claim that the Plaintiff was injured by a tree
stump. I hasten to add that it does not necessarily follow that
because I have rejected the Plaintiff's version as improbable that
his claim must as of necessity be dismissed. The question to be
determined at this stage, it being common cause that the Plaintiff
was shot by DW 3 is whether on the defence version, the Defendants
have shown on a balance of probabilities that there was full
compliance by them with the provisions of Section 41 of the Act,
thereby justifying the shooting.
said this, there is in my view no evidence whatsoever that the
Plaintiff was assaulted by the RSP as testified by him. According to
his version, PW 2 must at least have observed some bruises on the
Plaintiff's body. PW 2's report indicates that there were none. Even
DW 1, the Plaintiff's roommate did not confirm such assaults. The
Plaintiff has in my view failed on a balance of probabilities to show
that he was assaulted with fists and kicked with heavy boots by the
law applicable to Section 41 of the Act.
41 of the C.P. & E reads as follows:-
any peace office or private person authorised or required under this
Act to arrest or assist in arresting any person who has committed or
is on reasonable grounds suspected of having committed any of the
offences mentioned in Part II of the First Schedule, attempts to make
such arrest, and the person whose arrest is so attempted flees or
resists and cannot be apprehended and prevented from escaping, by
other means than by such officer or private person killing the person
so fleeing or resisting, such killing shall be deemed in law to be
section shall not give a right to cause the death of a person who is
suspected of having committed one of the offences mentioned in Part
II of the First Schedule and, the offence of theft is limited for the
purposes of this section to theft in a dwelling at night time, and
theft of stock or produce, as defined in any law for the preventing
the theft of stock or produce.
Section entitles any peace office or private person to shoot and kill
a person who has or is suspected on reasonable grounds to have
committed an offence listed in Part II of the First Schedule. There
must however have been an attempt to arrest that person by the peace
officer or private person but such attempt having been foiled by the
arrestee fleeing or resisting arrest and there being no other means
at the arresting person's disposal to apprehend and prevent the
arrestee from escaping than by shooting him. In terms of this
sub-section, if the arrestee is killed, this becomes justifiable
next question for determination is whether an arresting officer can
find refuge under this Section if he, in an attempt to arrest a
person who is fleeing or resisting arrest shoots at the arrestee in
an attempt to apprehend him but the arrestee is wounded but not
killed by a firearm. In my view, the answer must be in the
affirmative for Parliament can never be said to have intended the
protection to avail an arresting officer who inflicts a fatal wound
but deny such protection to one who inflicts less serious injury.
Such conclusion would border on the absurd because it would be
anomalous for an arresting officer or private person, ostensibly
acting in terms of this Section, to shoot with an intention to kill
the arrestee, to be protected by this Section, where as if he only
manages to wound the arrestee
intending to kill him, will not be protected. Such a situation would
be untenable. In my view, the more serious must include the less
serious and for that reason, the word killing in this case occurring
in Section 41(1) must be taken to also include wounding.
for the view I have taken can be found in various cases in the
Republic of South Africa before this Section was amended to
distinguish between wounding and killing. In REX VS BRITZ 1949 AD 293
at 299, Shreiner J.A., who dealt with a similarly worded statute
stated the following at page 299.
argument for the applicant was based on section 44 and although it
deals only with the justification of homicide it seems to have been
assumed, in his favour, that by implication, based presumably on the
notion that the greater includes the less, the section could, if its
conditions were satisfied, provide him with protection. "
learned Judge of Appeal did not criticise the Judge a quo for his
approach but decided the issue on the basis and assumptions made by
the Judge a quo.
also S VS MNANZANA 1966 (3) SA 39 and MATLOU VS MAKHUBEDU 1978 (1) SA
946 (AA) the headnote of which reads as follows regarding the
provisions of Section 37 (1) of the Criminal Procedure Act, 56/1955:-
section contemplates intentional killing and to avoid unacceptable
anomalies the word "killing", in the section must be
construed as including intentional "wounding".
find therefor that the Defendants can seek cover under the provisions
of this section, not withstanding that the victim was not killed but
injured. This will be so however, if they can show on a balance of
probabilities that they have met all the necessary requirements,
entitling them to benefit thereunder, the onus to prove that lying on
the Defendants. See MSOMI VS MINISTER OF LAW AND ORDER AND OTHERS
1993 (1) SA 168 (WLD) at 176 G, where Levy A.J. stated the
onus of proof that the shooting of plaintiff was justifiable in terms
of the Act rests upon the defendants, "
proceeding to consider the requirements for protection under the
above provisions, I find it apposite to state the underlying
principles governing the proper interpretation and application of
this Section, which though being drawn from South Africa, are highly
relevant and persuasive in our jurisdiction. This is to be found in
the lapidary remarks of van den Heever J.A. in MAZEKA VS MINISTER OF
JUSTICE 1956 (1) SA 312 (AD) at 316; (A), where the learned Judge of
Appeal stated the following:-
empowering private persons as well as peace officers to kill a person
suspected on reasonable grounds of having committed an offence, who
flees in order to escape arrest, the Legislature could not possibly
have intended that recourse to shooting should be had light
heartedly. The sub-section gives protection only if the guilty or
suspected person cannot be apprehended, and
from escaping by other means:.....There can be no doubt that the
intended sec.44 (1) to be strictly interpreted." (my emphasis).
also WIESNER VS MOLOMO 1983 (3) SA 151. Requirements for application
of Section 41.
following are the requirements to be met by the arresting person or
officer. He must show on a balance of probabilities that:-
was authorised by the Act to arrest the person who was assaulted or
to assist in his arrest;
made an attempt to arrest the injured person
injured person must have been aware of the attempt to arrest him;
injured person resisted arrest and could not be taken into custody
without the application of force
force employed to overcome the resistance or to prevent the flight
was reasonably necessary in the circumstances
See also R VS CONSTABLE JOHN DLAMINI and du Toit et at, "Commentary
on the Criminal Procedure Act, Juta 1995 at pages 5 - 29 - 30.
the above requirements to the facts.
is beyond dispute that DW 3 was a peace officer, regard had to the
provisions of Section 2 of the C.P, & E, which describes a peace
officer in the following
any magistrate or justice; a sheriff or a deputy sheriff; and police
officer or person carrying out under any law the powers, duties and
functions of a police officer in Swaziland; a gaoler or a warder of
any prison or goal, and any chief."
is clear in casu, that PW 3 and his companions, who are police
officers were carrying out functions, powers and duties of police
officers. They were therefore in my finding entitled and authorised
to arrest the Plaintiff. It is also clear from the evidence, although
the Plaintiff was later acquitted, that he was suspected on
reasonable grounds to have committed the crime of theft, which falls
under those offences listed in Part II of the First Schedule. In my
view, the first requirement is satisfied.
and (c) From the Defendant's evidence, which I accepted, I am
satisfied that the Police Officers did make an attempt to arrest the
Plaintiff. According to DW 3, he and Nhlabatsi, after the Plaintiff
had opened the door introduced themselves and as they took out their
identify cards, the Plaintiff ran Nhlabatsi down and fled. At this
stage he knew that they were Police Officers. There is evidence by
DW 2 that the Police had come on some previous occasion looking for
the Plaintiff. Plaintiff's denial of this was totally
unconvincing. The Plaintiff was therefor aware of the intention to
and (e) It is again clear from the Defendants' witnesses that the
Plaintiff resisted arrest. In fact he fled. DW 3 testified and this
was confirmed by DW 2 and DW 4 that he shouted to the Plaintiff to
stop, but to no avail. They chased him but he outran them. Two
warning shots were fired but they did not have the desired effect,
hence he was eventually shot. According to DW 3 and DW 4, the
Plaintiff was about to jump over the fence and disappear into the
dark, thereby causing all prospects of apprehending him to evaporate.
question is whether in view of the entire circumstances of the case,
it was reasonably necessary to essay the assistance of the firearm to
apprehend the Plaintiff. Crucial issues to consider in this regard
are the nature of the offence, the amount involved and whether there
were sufficient details available to the Police which would have
enabled them to effect arrest at a later date, regard had to the fact
that it was at night. These must be viewed against the harm or
potential harm that the person to be arrested stands to suffer.
coming to a conclusion on these issues, I will try to avoid the
posture of an armchair critic, wise only after the event. It is my
view that the offence of which the Plaintiff was reasonably
suspected of having committed was not very serious and the amount
involved, i.e. E900.00 was not a very large sum of money to justify
the resort to the firearm. According to the provisions of Section 41
(2), which I consider to apply to cases of wounding, this Section
applies in cases of theft only when the theft is perpetrated at night
and in a dwelling house and involves theft of stock or produce.
conclusions in regard to the effects of the provisions of Section
41(2) find support in the judgement of Rooney J. in THE KING V
THORNTON HENWOOD Crim. Trial 148/80 (unreported) at page 9, where the
learned Judge stated the following:
is unnecessary for me to discuss whether or not the action of the
accused in shooting the complainants falls under section 41(1) of the
Act, cited above. This is because, subsection (2) excludes whatever
protection subsection (1) might afford, from the offence of theft,
excepting only theft in a dwelling house at night time and the theft
of stock or produce. It follows that even if a thief, attempts to
flee or resist arrest and cannot be apprehended or prevented from
escaping by other means, he cannot be lawfully killed unless the
circumstances set out in 41(1) are present and he is a burglar or a
stock thief It should be underlined that this rule applies not only
to private persons making an arrest, but also to peace officers and
policemen as well. There is no law which permits use of firearms with
impunity to arrest car or other thieves."
wish to take the matter further and state that in my view, this
Section further suggests that the action must be taken at the time
the theft is being committed and may not be resorted to at some date
or occasion well after the theft occurred. It is my view that the
failed to discharge the onus on this score as no compliance with the
provisions of subsection (2) has been shown, this being a case
wish to observe further that it would appear that the force the
applied was disproportionate regard had to the seriousness of the
offence. From the evidence, the Police had previously been to look
for the Plaintiff unsuccessfully. They knew his identity, knew where
he stayed and could have obtained further information from DW 2 who
even knew the Plaintiff's home which could have enabled them to
arrest the Plaintiff on some later and less dangerous occasion. The
testimony by DW 3 that they wanted to arrest him before he used up
the money does not justify them having to invoke that kind of force,
considering the amount involved. It is clear in any event that they
did not find the money in the Plaintiff's house after conducting a
thorough search. They could, after Plaintiff's escape have searched
for the money in his house and stood guard as the Plaintiff was bound
to return to his house sooner than later as he was only wearing
pyjama shots and a jersey whereas it was a cold night according to
GOVENDER VS MINISTER OF SAFETY AND SECURITY 2000 (1) SA 959 (D &
at 965, Booysen J. was of the view, which I share, that gross
disproportion between the force applied and the seriousness of the
offence can and does render the shooting unreasonable. In that case,
the Police had shot the Plaintiff on suspicion that he had committed
car theft, which he considered a serious and prevalent offence in his
jurisdiction. Booysen J. found for that reason that the shooting was
in those circumstances justified. At 969 C - D, the learned Judge
stated the following:-
amount and method of force used must therefore be in proportional
balance to the aim that is to be achieved and must be the minimum
force that would be reasonably effective and feasible in the
circumstances. It furthermore includes the weighing up of the nature
and seriousness of the specific crime in question as committed
against the amount and the method of force used"
also S VS MARTIN US 1990 (2) SACR 568 and S V VAN WYK 1992 (2) SA CR
indicated earlier, recourse to the use of a firearm must be anxiously
and soberly considered. Resort thereto must be had only in deserving
cases where the seriousness of the offence and the attendant
circumstances outweigh the discomfort injury or even the death of the
arrestee. A conspectus of the facts of this case leads me to the
conclusion that resort to the use of a firearm was not justified in
casu. The Defendants have in my view failed to discharge the onus and
I find them liable for shooting the Plaintiff. The provisions of
Section 41 cannot in the circumstances avail them.
costs will follow the event. As agreed, the question of quantum will
for now be left for negotiation by the parties.