THE HIGH COURT OF SWAZILAND
the matter between:
: MASUKU J.
PLAINTIFF : MR P.R. DUNSEITH
DEFENDANT : MR P.M. SIMELANE
ON APPLICATION FOR ABSOLUTION FROM THE INSTANCE
this defended action, the Plaintiff claims an amount of E37,729.66
from the Defendant in respect of medical expenses, loss of earnings
and general damages for pain and suffering permanent disability and
loss of amenities of life. In its Particulars of Claim, the Plaintiff
alleges that on the 22nd January 1996 and at about 6:40p.m, near
Siphiwe Grocery, Ka-Khoza location, in the District of Manzini, he
was unlawfully assaulted by a member of the Royal Swaziland Police,
whose particulars are to him unknown.
is further alleged that the Plaintiff was shot in his posterior right
knee and was injured as a result of the assault, which assault
necessitate surgery for the removal of the bullet and repair of the
it is alleged that the unknown Police Officer who shot the Plaintiff
was then and there acting in the course and scope of his employment
by the Defendant.
its Plea, the Defendant denied that the Plaintiff was shot on the
date, place and time alleged by a Police Officer. The Defendant
averred that no member of the Police Force ever assaulted the
Plaintiff on the date alleged or at all.
is abundantly clear that the claim is for damages resulting from a
personal injury. For that reason, Rule 18 (10), which is mandatory in
its tenor, enjoins a plaintiff to furnish certain particulars,
including the date of birth nature and extent of injury and the
nature and duration of the disability alleged to have given rise to
the damages. It also enjoins a Plaintiff to state separately so far
as practicable what amount is claimed for.
costs and hospital expenses and other similar expenses and how these
and suffering, stating whether temporary permanent and which
in respect of (i)
the 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:
the enjoyment of amenities of life, giving particulars and stating
whether the disability concerned is temporary or permanent; and (d)
disfigurement, with a full description thereof and stating whether it
is temporary or permanent.
- rule (12) of the same Rule states that if a party fails to comply
with any of the provisions of the Rule, the pleading shall be deemed
to be on irregular step and the opposite party shall be entitled to
act in accordance with Rule 30.
is an incontrovertible fact that the Plaintiff has dismally failed to
totally or even substantially comply with the peremptory provisions
cited herein above. According to the wording of Rule 18 (12), the
Particulars of Claim shall be deemed to be an irregular step. The
Defendant has however not proceeded in terms of Rule 30 but appears
to have accepted the Combined Summons as they stand.
must emphasize that in the drawing up of pleadings, the requirements
set out in the Rule, particularly in Rule 17 and 18 must be
specifically included. Rule 18 for instance would be regarded as
peremptory in nature, having regard to the use of the word shall.
Where the requirements of the sub-rule have not been complied with,
the Court is entitled even mero motu to raise the issue of
non-compliance and to order as to it seems fit. I will however
condone the non - compliance in this case but send out a warning that
these Rules are there to regulate the smooth functioning of
litigation and should be observed religiously. Any deviation from or
non - compliance with any provision of the Rules, particularly Rule
18 will no longer be tolerated. The Court will not hesitate to mero
motu regard any pleadings not compliant therewith an irregular step.
the commencement of the hearing, it was agreed by the parties'
representatives that the Court should only determine the question of
liability, leaving the quantum to the parties. By further agreement,
it was recorded that the Defendant conceded, and rightly so in my
view that the Plaintiff was shot. The outstanding issue for
determination was whether the Defendant was responsible for the
CHRONICLE OF EVIDENCE
Plaintiff gave his evidence first. He stated that he was 30 years old
and lived at Ka-Khoza, where he rented a flat. He also stated that he
had never been to school and could not write except to sign.
the events of the 22nd January, 1996, the Plaintiff stated that he
did not go to Coca Cola, Matshapha, where he was employed as a
forklift driver because there was a national strike. In the evening
at around 7.00pm of that day, he went to Siphiwo Grocery at Ka-Khoza.
According to the Plaintiff, the shop is situated on the left side of
the main road to Matsapha, past the traffic lights.
he reached the shop, he bought some items through the burglar bar
door which was locked.
he was given his change, he heard a gun shot and looked at the
direction from which it came and there saw a Police Officer in a
firing position shooting and he ran away. Plaintiff states that he
could not see type of the gun used because people ran away and he
followed suite. He was asked whether it was a gun or a rifle and he
stated that it was a rifle because the Police Officer used both
was the Plaintiffs further evidence that he knew the person was a
Police Officer because of the uniform he wore. The Policemen was
standing at the bus stop next to a blue Police van. Plaintiff further
stated that he ran towards the bus stop where the Police were. When
asked if he ran towards the danger by Mr Dunseith, the Plaintiff said
that he just ran away because he heard the sound and was frightened.
Mr Dunseith further asked if the Plaintiff was running to any
particular place and he said that he was not running to any specific
place. His main preoccupation was to run away from danger.
Plaintiff continued to state that his right leg became limp and he
fell after hearing noise from the gunshot and he started bleeding. It
was the Plaintiffs further evidence that he also saw Noxolo Mdluli,
who was with him at the shop fall down a short distance from him.
Sikelela Dlamini, who featured as PW2 then came and asked what was
wrong with the Plaintiff and after being told, Sikelela then helped
the Plaintiff to limp to the bus stop. At the bus stop, he asked some
Policemen driving a white van to convey him to Raleigh Filkin
Memorial Hospital and they obliged. The blue Police van had already
driven off by this time.
Plaintiff was hospitalised for two weeks and during the
hospitalisation, he underwent a successful operation for the removal
of the spent bullet. The bullet was given to the Plaintiff who in
turn gave it to his present attorney. Mr Dunseith again asked the
Plaintiff of the direction he ran from the shop after the gun sound
and he stated that he ran to the right from the shop.
cross examination, Mr Simelane asked PW 1 to describe the situation
at the shop and PW 1 stated it was violent with people toyi-toying
but that if you used the overhead bridge, you could reach the shop
without any difficulty. He proceeded to state that the shops in the
area had been closed for the whole morning and were only opened in
the afternoon. It was
to him that there was indiscriminate throwing of stones and large
boulders were put on the road to prevent flow of traffic and PW 1
stated that he did not see this. PW 1 stated that it was dark by then
and the streetlights were the source of light. He stated that he
could see clearly up to fifteen metres.
asked if it was the Police who shot him, PW 1 agreed and stated that
there were three shot.
he heard the first one, he saw a policeman holding a gun and pointing
1 confirmed that when he heard the first gunshot, he ran towards the
Police Officer. He was then asked to relate how he was shot in the
posterior of the knee if he was shot whilst running to the Police
Officer and his answer was incoherent. He said he was running away
with his back to the Police Officer and joined the road leading from
the shop entrance. PW 1 then stated that he did not run towards when
probed further, PW 1 stated that the man who shot him was wearing a
black trouser and a cap. Mr Simelane then asked if PW 1 had ever seen
a riot Police Officer wearing a cap and he stated that he had never
seen it before but he saw it on the day in question.
1 also stated that he saw the Police Officer clearly and that he was
fifteen metres away from the Police Officer when he fell down. It was
further put to PW 1 that on that day, the Police were carrying sticks
and none were armed with guns. PW 1 maintained that the officer he
saw was carrying a rifle. It was further put to PW 1 that the Police
were not using a van but a riot vehicle called a cab-star. In
response, PW 1 stated that he saw a Blue police van with fence to
protect the windows. PW 1 further stated that he recorded a statement
with the Police when he was from the theatre at the hospital. He
denied being given a Police Form to be completed by the Doctor but
stated that the Police informed him that they would revert to him
later but they never did.
1 was further asked if he was approached by any Police Officer about
his shooting after being treated and the answer was in the negative.
It was put to PW 1 that Police approached him with a view to going to
the scene to count the paces but PW 1 refused stating that he would
go until a Mr Jan Sithole said so. In answer, PW 1 denied having said
that. According to him, he told the Police that he would want to see
his attorney first since he had instructed an attorney. When asked if
he realised that he had admitted being approached by the Police, PW 1
stated that it had been some time since the incident occurred.
was further put to PW 1 that it was not Sikelela who helped him but
Police Officers picked him up and put him in the van. PW 1 maintained
that he was picked up by Sikelela. PW 1 was asked how far from him
Noxolo had fallen and he stated that she was about six paces away and
had fallen to his left side. It was put to him that Noxolo was not
found anywhere near him but PW 1 insisted that Sikelela picked him up
and left Noxolo lying on the ground.
Simelane proceeded to ask PW 1 about why he did not show the bullet
to the Police and his response was to the effect that the Police had
told him that they would come back but never did. As a result, he
took the bullet to his attorney. Mr Simelane then pointed out the
difficulty that now existed as a result of the disappearance of the
bullet in comparing the bullet with the service firearms and he
stated that he could never trust the Police with the bullet. When
asked to state the size of the bullet, PW 1 stated that it was +- 3
centimetres and then demonstrated the size with his fingers. I shall
revert to this later.
re-examination, PW 1 confirmed having seen the casbar and he stated
that he walked past it on his way to the shop. He also stated that
when he said he ran towards the road, he meant the in road, not the
2 was Sikelela Judas Dlamini who stated that he was employed as a
carpenter by Shoetique at Matsapha but resided at Ka-Khoza. He
confirmed knowing PW 1 as they lived in the same residential area but
stated that he was neither his friend nor relative. On the 22nd
January. 1996, PW2 stated that because of the unsafe situation that
prevailed, due to a strike, he did not report for work. Just before
19h00, he got information that the shop was open. Together with his
wife and PW1, PW2 went to the shop. PW 1 went ahead of the couple.
Before reaching the main road, there was a blue Police van from
Manzini travelling towards Matsapha.
were some young boys at the bus station carrying stones and as the
Police vehicle approached, the boys went into the road and the Police
van put on its hazard lights. The boys threw stones at it ant it
passed where PW 2 was then stopped. The boys then ran away and hid
behind an incline. Then one officer in blue uniform and a cap
vehicle and he fired three shots from a gun in the direction of the
boys. PW 2 and his wife then ran away for a short distance and later
came back when the van drove away.
transpired from PW 2's evidence that PW 1 had already crossed the
road PW 2 then crossed the road as his wife was afraid and on an
in-road, he found PW 1 sitting down. Next to him was a girl. PW 2
helped PW 1 into his feet and was informed by PW 1 that he had been
injured and PW 2 noticed a wound on the back of PW 1 's leg. PW 2
said that he later gathered that the girl was Noxolo Mdluli and whose
parents he knew as they grew up together. Some Policemen in a white
van then came and took PW 1 to hospital. Notwithstanding that Mr
Simelane put to PW1 that no officers were wearing blue uniforms, PW 2
confirmed having seen some Police Officer in blue uniform.
Dunseith asked if the gun shots were fired by the Police Officer PW 1
saw and he confirmed that stating that immediately when the Police
van stopped, the officer alighted, produced a gun and that when he
fired, there were flames of fire being emitted from the gun.
cross-examination, Mr Simelane notified PW 2 that PW 1 never
mentioned that they were walking together at some stage. PW 2 stated
that he was surprised by this and he did not know why PW 1 did not
mention it. He discounted any possibility that what he said was
untrue. PW 2 confirmed that when the shooting started, PW 1 was no
longer within his view. PW 2 estimated the distance from the shop to
where the Policeman was at 30 -40 metres. He stated that the gun was
being pointed to the Manzini direction and could from that position
shoot somebody at the shop. It was put to PW 2 that because PW 1 was
not within eyesight, he could not positively state that PW 1 was shot
by the Police.
response, PW 2 stated that there was no gun which was fired around
that time, except the one fired by the Police Officer three times.
2 was told that PW 1 had said that the uniform worn by the Policeman
was a black trouser and not blue. PW 2 insisted that the Police
Officer was wearing a blue uniform with a cap. He denied the
suggestion that no Policemen were wearing caps on that day and also
controverted Mr Simelane's suggestion that all Police Officers were
wearing jungle green uniforms. PW 2 denied seeing a hippo at the
scene, whereas PW 1 said he saw it. It was further put to PW 2 that
no Police Officers were carrying guns but sticks to disperse
mobs. PW 2 strongly disagreed, stating that during the day he had
seen some Police Officers carrying guns and others firing teargas
canisters and that they were in a huge truck. PW 2 was further asked
if he could differentiate between the sound emitted by a gun as
opposed to a tear gas canister and he stated that he could. He had
witnessed shooting by Police in funerals where their colleagues had
died and had also observed Police throwing teargas canisters in
re-examination, Mr Dunseith asked as to where PW 2 crossed the road
and it was his evidence that he crossed on the road because no people
use the overhead bridge at that time. He stated further that he was
some distance away from the overhead bridge.
to take the witness stand on the Plaintiff's behalf was Mr Dunseith.
I do not intend to go into any detailed analysis of this evidence. Mr
Dunseith stated that when instructed by the Plaintiff, PW 1 gave him
a bullet wrapped in cotton wool inside an envelope bearing a Doctor's
stamp. The bullet was spent and he observed some scratches on the
bullet. He then advised PW 1 to obtain ballistic evidence to
determine the type of the firearm used to shoot the bullet. He then
sent a letter to the South African Police Services (SAPS) requesting
them to give the requisite information.
requested Mr Dunseith to open a criminal case with the RSP and then
send the bullet under PCCI number. Mr Dunseith said that he realised
that he could not get any assistance from the RSP because he had
required information about guns in their possession and got no useful
then advised him to ask the services of a Mr Fourie of Pretoria and
sent the bullet by courier.
Fourie was unable to give the information required bud did not return
the bullet, notwithstanding written reminders. Mr Dunseith handed the
letters confirming his evidence, including a courier shipment bill,
confirming that the bullet was sent by courier.
cross-examination, Mr Dunseith was asked as to why the bullet was not
shown to the RSP and he stated that the RSP would not have
investigated the matter and that he did not trust the RSP. Mr
Dunseith referred to a case involving Noxolo Mdluli, in which the RSP
were blamed for her death but they did not institute an enquiry to
establish the truth of the matter.
last witness called was Mr Nimrod Mabuza, a reporter with the Times
of Swaziland. His evidence was that on the 22nd January 1996, he was
assigned to cover and report a stay-away called by the Swaziland
Federation of Trade Unions (hereinafter referred to as "S.F.T.U.")
in Manzini city. Mr Mabuza stated that a report of the incidents was
made by him and published in the issue of the Times of Swaziland,
dated 23rd January, 1996.
4 stated that there were running battles that he witnessed at KaKhoza
and the RSP used riot guns to launch teargas canisters which
dispersed the crowds. It was his further evidence that the RSP were
also armed with batons and shields and some were carrying rifles and
pistols. The majority of the Police however carried batons and
shields. A picture taken in Mbabane was shown to the witness and in
which some Police Officers appeared to be carrying guns.
cross-examination, PW 4 conceded that the report referred to above
was written by him but based also on information furnished to him by
a cub reporter who was also assigned to report on the stay-away in
Manzini. He further conceded that the tenor of the report is
misleading because it does not recognise that the author in writing
the report relied on information furnished by another person.
4 also stated that he did see a Police Officer carrying a gun on the
over-head bridge at KaKhoza.
officer was in company of a soldier and they were wearing the
camouflage uniform. According to PW 4, this officer was carrying a
rifle but the witness did not see him firing any shot.
was PW 4's further evidence that other than RSP and soldiers, he did
not see any other persons carrying firearms. It was further put to
him by Mr Simelane that two Police constables were shot on the 23rd
January 1996, and PW 4's response was that he had heard about it in
Mbabane but did not personally see this happen. This witness was not
FOR ABSOLUTION FROM THE INSTANCE
this juncture, Mr Simelane moved an application for absolution from
the instance in terms of the provisions of Rule 39 (b) of the High
Court Rules as amended. The said sub-rule reads as follows:-
the close of the case for the plaintiff, the defendant may apply for
absolution from the instance, in which event the defendant or one
counsel on his behalf may address the court and the plaintiff or one
counsel on his behalf may reply. The defendant or one counsel may
thereupon reply on any matter arising out of the address of the
plaintiff or his counsel. "
approach to be adopted in dealing with this application and which has
been consistently followed over many years was stated with absolute
clarity in GASCOYNE V PAUL & HUNTER 1917 TPD 170, where the
following was stated by de Villiers J.P.
the close of the case for the plaintiff therefore, the question which
arises for the consideration of the Court is, is there evidence upon
which a reasonable man might find for the plaintiff?... The question
therefore is, at the close of the case for the plaintiff was there a
prima facie case against the defendant Hunter: in other words, was
there such evidence before the Court upon which a reasonable man
might, not should, give judgement against Hunter? "
approach adopted is similar to that which applies in respect of
applications in terms of Section 174 (4) of the Criminal Procedure
and Evidence Act, 67/1938, as amended. In MYBURGH v KELLY 1942 EDL
202 at 206, Pittman J. stated as follows:-
magistrate) is bound to speculate on the conclusion at which the
reasonable man of his conception not should, but might, or could,
arrive. This is the process of reasoning which, however difficult its
exercise, the law enjoins upon the judicial officer."
also find it apposite to refer to some constructive remarks by Beadle
C.J. in SUPREME SERVICE STATION v FOX AND GOODRIDGE (PVT) LTD 1971
(4) SA 90 at 93 F-G:-
the defence is something peculiarly within the knowledge of a
defendant, and the plaintiff has made out some case to answer, the
plaintiff should not lightly be deprived of his remedy without first
hearing what the defendant has say. "
to the facts of the matter Mr Simelane, correctly argued that in
chief, PW 1 stated that when he heard the gun sound, he ran towards
the Police Officer, who was carrying a rifle in the shooting position
and was shot. This supposes that the injury should be in the front
but surprisingly, the Plaintiff's injury was in posterior of his
it was Mr Simelane's contention that in the absence of the bullet
which was lost or misplaced, there was no connecting factor between
the injury of the Plaintiff and the Defendant's servants. Had the
bullet been present, continued Mr Simelane, then, the bullet would
have been inspected and it would be ascertained whether the RSP has
any firearm in the calibre from which the bullet was ejected. There
was therefore nothing, other than the contradictory evidence of the
Plaintiff and PW 2 to link the Defendant's servants to the
Mr Simelane further argued that PW 1 was so contradictory in his
evidence so as to be regarded untruthful. An incident mentioned to
substantiate this was when it was put to PW1 that he was visited by
Police at the hospital, who were desirous of taking him to the scene
to establish what happened. PW 1 stated that he never spoke to Police
Officers. It was then put to him further that he refused to go with
the Police, stating that he would only go at the word of Mr Jan
Sithole. PW1 then denied this stating that what he said was that he
would not go without seeking the approval of his attorney, who he had
instructed to deal with the matter. It was clear then that PW 1 was
untruthful in his evidence in chief. It was Mr Simelane's submission
that the Plaintiff failed to show a prima facie case.
response to the first point, Mr Dunseith stated that under
cross-examination, PW 1 gave a full explanation of the anomaly,
stating that he first ran towards the RSP in order to join an in-road
and was on that in-road that he was shot. This was confirmed at the
scene. It was Mr Dunseith's contention that even if there may be
defects in the Plaintiff's case, they are not sufficient to vitiate
the claim. The Court was asked to assess Plaintiff's evidence taking
into account that the Plaintiff is illiterate and simple.
the second question, Mr Dunseith stated that the presence of the
bullet would have been ideal but the loss of the bullet should not be
held against the Plaintiff as he did all that was to be expected of
him by handing it over to his attorney. It was Mr Dunseith's
the bullet would only help the Plaintiff's case but its absence
should not lead to the collapse of the Plaintiffs case.
was further argued that the Plaintiff stated that he saw a Police
Officer in uniform shooting in his direction. In this respect, he was
corroborated by PW 2, who also stated that he saw the said Police
Officer shooting in the direction of the shop where the Plaintiff
is my considered view without necessarily analysing the evidence led
on the Plaintiff's behalf to minute detail that the evidence of the
Plaintiff was at the least unsatisfactory. This was in respect of the
issues mentioned by Mr Simelane and others that I need not mention
here, PW 2, whose evidence taken alone was in my view good and
unshaken attested to the fact that a Police Officer shot at the
accused and he corroborated the Plaintiff in that material respect.
the circumstances, it is my considered view that the rhetoric
question in SUPREME SERVICE STATION v FOX AND GOODRIDGE (PTY) LTD
(supra), at 93 C, namely:-
there sufficient evidence on which a court might (my emphasis) make a
reasonable mistake and give judgement for the plaintiff? "
be answered in the affirmative in view of the evidence of PW 2 in
particular. I am also alive, in reaching this conclusions to the
earlier dicta referred to and in particular to Herbstein and Van
Winsen" The civil Practice of the Supreme Court of South
Africa", Fourth Edition, 1997, at page 683, which states the
view of the principles set out above, it is clear that a trial court
should be extremely chary of granting absolution from the instance at
the close of the plaintiff's case. In deciding whether or not
absolution should be granted, the court must assume that in the
absence of very special considerations such as the inherent
unacceptability of the evidence adduced, the evidence is true.
court should not at this stage evaluate and reject the plaintiff's
evidence. The test to be applied is
whether the evidence led by the plaintiff establishes what will
finally be established. "
have sought to comply with the above instructing remarks herein and I
hold that the application should fail and the defence to place its
case before Court.