Pleadings vital function: Assumption of risk

Note: Footnotes omitted and emphasis added

[1] The plaintiff claims damages from the defendant of R2.7 million arising from an incident that occurred on 10 August 2011 in Grabouw. At commencement of the trial the merits and quantum were separated (by agreement) and accordingly I am only required to determine the merits at this stage.

[2] In her particulars of claim the plaintiff alleged that on the day in question, at approximately 6.15am, near the corner of Old Cape and Industrial Roads, Grabouw, she was

‘wrongfully, unlawfully, alternatively maliciously, alternatively further negligently, and without just or probable cause’ shot in the right eye by members of SAPS acting in the course and scope of their employment with the defendant, and who:

(a) failed to handle their firearm(s) with proper consideration for safety of members of the public;

(b) failed to properly handle a firearm(s) loaded with ammunition (rubber bullets); and

(c) failed to avoid the shooting of the plaintiff when by the exercise of reasonable care ‘he/she/they’ could and should have done so.

[3] It is common cause on the pleadings – and I quote verbatim – that at all material times the ‘said’ SAPS member(s):

3.1 were obliged by the preamble and s 14 of the South African Police Service Act (“SAPS Act”) to ensure the plaintiff’s safety and security, and uphold and safeguard her fundamental rights as guaranteed by Chapter 3 of the Constitution, including her right to dignity, life, freedom and security, as set out in s 10, s 11 and s 12 thereof;
3.2 were obliged, by virtue of the SAPS Code of Conduct to create a safe and secure environment for the plaintiff, to prevent action(s) which might threaten her safety or security, uphold the Constitution and the law, render a responsible and effective service of high quality, utilise all available resources responsibly, efficiently and cost-effectively to maximise their use, uphold and protect the plaintiff’s fundamental rights, act transparently and in an accountable manner, and exercise the powers conferred upon them in a responsible and controlled manner; and
3.3 accordingly owed the plaintiff a duty of care, pleaded in the following specific terms: (a) not to abuse their power(s); (b) not to act with deliberate or negligent indifference to the plaintiff’s health and safety; (c) to exercise control of their actions; (d) to provide the plaintiff with immediate medical care; and (e) not to randomly open fire on members of the public, including the plaintiff, in a reckless and/or negligent manner.

[4] The plaintiff further alleged that ‘the aforesaid member(s)’ breached their duty of care in one or more of the following respects:

(a) randomly firing bullets at members of the public including the plaintiff;

(b) endangering her life;

(c) disregarding her right to privacy and dignity;

(d) abusing their powers; and

(e) acting with deliberate indifference towards her health and safety.

[5] In the further amended plea delivered on 27 August 2018 the defendant denied that the plaintiff sustained the injury in question as a consequence of any conduct by those SAPS members. In the event of this being proven however, the defendant admitted that the injury was sustained when the members were acting in the course and scope of their employment, but raised three alternative defences.

• First, that the SAPS members in question acted out of necessity;
• second, the plaintiff voluntarily assumed the risk; and
• third, the plaintiff’s own negligence contributed to the injury she sustained.

[6] In a nutshell the defendant based these alternative defences on the following pleaded averments.

Early that morning at around 3.00am a group of people started gathering illegally in that particular area, and this gathering progressively grew until by 6.00am the crowd had swelled to over 1000 people. Members of the gathering were armed with pangas, knopkieries, sticks and stones; the streets in the vicinity were blockaded with cement blocks, burning tyres and stones; and the flow of traffic in and out of Grabouw was brought to a standstill.

[7] The gathering became increasingly riotous, people on their way to work were intimidated and/or assaulted; and their property as well as SAPS property was damaged. Efforts by SAPS members to restore calm and disperse the crowd resulted in stones and bottles being hurled at them. These efforts included repeatedly, but unsuccessfully, requesting the crowd to disperse in English, Afrikaans and isiXhosa. Ultimately the only reasonable means of averting the danger to both the public and SAPS members was to fire rubber bullets into the ground.

[8] The defendant also pleaded that the plaintiff had knowledge of the risk ‘in entering the gathering’ and therefore consented to the possibility of injury (i.e. the alternative defence of voluntary assumption of risk); or failed to exercise reasonable care (i.e. the further alternative defence of contributory negligence).

The evidence

[9] The parties agreed that the plaintiff bore the onus to prove that the injury she sustained (which resulted in her losing her right eye) was caused by the SAPS members and, if she succeeded, the defendant bore the onus to prove the defences raised.

. . . . .

Discussion

[68] I will assume in the plaintiff’s favour that, given the medical evidence, she was in all probability struck by a ricocheted rubber bullet. I am fortified in this view by her pleaded case that she was injured near the corner of Old Cape and Industrial Roads, which is where the SAPS members were positioned when they fired rubber bullets into the ground, as well as the testimony of Matsemela and Fortuin that the crowd had by then spilled over onto the sides of the road.

[69] I will also assume in her favour that the version she gave in court about where she was when injured was correct since it fits into the objective facts (despite the differing versions she previously gave as recorded in the various statements referred to earlier in this judgment). I make these favourable assumptions, as opposed to specific credibility findings, since as will appear from what follows they ultimately do not assist her case.

[70] It is inconceivable that the plaintiff would not have heard shots being fired before leaving her home around 6.45am. On the established facts and inherent probabilities the crowd was far from docile as she claimed when she entered the area. While I accept that she would not willingly have proceeded to walk directly into the heart of the protest, on the probabilities she passed at least alongside the protesters at a time when their assault on the SAPS members was well underway.

[71] It was submitted on behalf of the plaintiff that, given the defendant’s election to call Gideon to testify, his counsel clearly foreshadowed that he was required to ‘close the gap’ subsequent to the debate about the plaintiff’s pleaded case during Fortuin’s testimony.

[72] As I see it, the difficulty with this submission is that it overlooks the specific grounds upon which the plaintiff pleaded that the ‘said SAPS members’ – i.e. those stationed at Grabouw who were on the scene at the time the plaintiff was injured, and not the POP unit – breached their duty of care towards her as set out in paragraph 2 of this judgment. Ultimately, and given the evidence of Fortuin and Moos, the plaintiff was constrained to pin her case on the alleged failure by those SAPS members to avoid ‘the shooting incident’ when by the exercise of reasonable care they could and should have done so.

[73] This in turn led to the plaintiff relying on what appears to have been a dereliction of duty on the part of the POP unit, but without seeking to amend her particulars of claim to that effect, despite this being pertinently raised by the Court during Fortuin’s testimony. I agree with counsel for the defendant that the pleading of law (i.e. the SAPS Act and Code of Conduct) provided no factual basis for the defendant to be alerted to the case he would later be required to meet.

[74] Had the plaintiff pleaded reliance on POP’s apparent dereliction of duty from the outset the defendant may well have approached his defence in a different manner; and even if the late amendment was introduced and allowed, the defendant would have been afforded a proper opportunity to deal with it even if this caused a postponement.

[75] Summons was issued on 28 July 2014, just under 8 years before the trial commenced, yet the plaintiff did not even request trial particulars or seek admissions from the defendant. It is thus fair to accept that she intended all along to place the blame only on the Grabouw SAPS members who were on the scene on the morning of the incident.

The fact that the defendant later adduced Gideon’s testimony does not alter the case he was required to meet, and in any event Gideon’s evidence merely supported the main pleaded defence of necessity.

[76] Counsel for the plaintiff placed reliance on Sentrachem Bpk v Wenhold where the Court [SCA] in turn referred to Shill v Milner 1937 AD 101 in which it was stated that:

‘The importance of pleadings should not be unduly magnified. The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry.

But within those limits the Court has wide discretion. For pleadings are made for the Court, not the Court for pleadings. Where a party has had every facility to place all the facts before the trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal merely because the pleading of the opponent has not been as explicit as it might have been.’

[77] To my mind however, and for the reasons already given, to “read into” the plaintiff’s particulars of claim the case which, seemingly by dint of fate, evolved during Fortuin’s evidence, would not only cause prejudice to the defendant but would also prevent a full inquiry.

This too is evident from the sparse testimony of Gideon himself. Put differently, as a result of the plaintiff’s own choice, this Court does not have before it ‘all the materials on which it is able to form an opinion, and this being the position it would be idle for it not to determine the real issue which emerged during the course of trial’.

I am also unable to agree with the submission made by plaintiff’s counsel that the following reference in his opening address was sufficient notice to the defendant of the case he had to meet:

‘On the defendant’s own admission, between the hours of 02h00 and 03h00, the group of protesters were growing larger, and the SAPS should have deployed specialised members/units to maintain law and order, which they failed to do.’

[78] What is contained in an opening address, if not borne out by the pleaded case, cannot be elevated to anything more than that.

But in any event, this submission was not supported by the subsequent evidence. It was rather an assumption based on how the plaintiff viewed the defendant’s case.

[79] In Minister of Safety and Security v Slabbert the Supreme Court of Appeal [per Mhlantla JA ] explained it thus:

‘[10] The question that arises for consideration is whether the case pleaded by the plaintiff covers the assertion that the refusal to release him into his wife’s care rendered the further detention unlawful. A perusal of the particulars of claim shows clearly that such a case was not pleaded. As stated, the arrest and detention were challenged on the basis that the police had no legal justification for effecting them. As expected, the defendant’s plea addressed only that issue.

[11] The purpose of the pleadings is to define the issues for the other party and the court. A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.

[12] There are, however, circumstances in which a party may be allowed to rely on an issue which was not covered by the pleadings. This occurs where the issue in question has been canvassed fully by both sides at the trial. In South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd, this court said:

“However, the absence of such an averment in the pleadings would not necessarily be fatal if the point was fully canvassed in evidence. This means fully canvassed by both sides in the sense that the Court was expected to pronounce upon it as an issue.”

[13] The issue on which the court below relied as a basis for liability was not fully canvassed at the trial presumably because it was not pleaded and the parties’ attention was not drawn to it. It was fleetingly touched upon during Magoxo’s cross-examination. The response elicited was that the plaintiff was still drunk at the time his wife made the request. The issue was not pursued and furthermore the plaintiff’s wife did not testify to support the contention.’

[80] In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck the same court [SCA per R Nugent JA] held:

‘[10] But our law also recognises that there are circumstances in which even positive conduct that causes bodily harm will not attract liability. That is so where the harm is caused in circumstances of necessity, which have been described as occurring when the conduct is ‘directed against an innocent person for the purpose of protecting an interest of the actor or a third party (including the innocent person) against a dangerous situation.’

It is well established that whether particular conduct falls within that category is to be determined objectively. That the actor believed that he was justified in acting as he did is not sufficient. The question in each case is whether the conduct that caused the harm was a reasonable response to the situation that presented itself.’

[81] Moreover in Petersen v Minister of Safety and Security it was stated [by FJD Brand JA in SCA]:

‘[11] Can it be said that in these circumstances the police action which caused Justin’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 action must be directed at a wrongful attacker. There was therefore no need for the respondent to establish that Justin was himself part of the attacking crowd. What the respondent had to prove in order to establish the justification defence of necessity, appears, for example, in broad outline, from the following statements in “Delict” volume 8(1) Lawsa (2ed) by JR Midgley and JC van der Walt, paragraph 87:

‘An act of necessity can be described as lawful conduct directed against an innocent person for the purpose of protecting an interest of the actor or a third party . . . against a dangerous situation . . .

Whether a situation of necessity existed is a factual question which must be determined objectively. . .
A person may inflict harm in a situation of necessity only if the danger existed, or was imminent, and he or she has no other reasonable means of averting the danger. . .
The means used and measures taken to avert the danger of harm must not have been excessive, having regard to all the circumstances of the case . . .” ’

[82] The evidence of Fortuin and Moos, supported by that of Gideon, speaks for itself and objectively demonstrates that the SAPS members concerned acted out of necessity when discharging their firearms containing rubber bullets.

As plaintiff’s counsel himself put it to both Fortuin and Moos, they were hopelessly outnumbered. Their undisputed evidence (supported by Matsemela herself) was that they had no access to alternative methods to disperse the crowd such as teargas, stun grenades and water cannons. Both testified that no shots were fired directly at or into the crowd.

Moreover Matsemela did not see them shooting randomly at the crowd and nor did the plaintiff. There was no evidence that anyone other than the plaintiff was injured by a bullet being fired, nor of the distance a fired rubber bullet can ricochet.

[83] While I accept there were certain contradictions between the testimony of Fortuin and Moos as to the exact timeline and sequence of events, I do not consider them to be material.

Both officers testified almost 11 years after the incident and, if anything, the discrepancies in their versions rather show their honesty and that they made no attempt to tailor them to match or to suit the defendant’s case.

[84] While I have sympathy for the plaintiff’s plight – an innocent young woman trying to reach the bus stop to further her hard fought for education – I cannot overlook the fact that she also voluntarily assumed the risk of injury, whether at the hands of one or more of the protesters or the SAPS members acting out of necessity. For all these reasons I am compelled to conclude that the plaintiff’s claim must fail.

[85] The following order is made:

‘The plaintiff’s claim is dismissed with costs.’

Summary