City of Johannesburg Metropolitan Council v Ngobeni (11) [2012] ZASCA 55 (30 March 2012) 

On 15 September 2004, Patrick Ngobeni (the plaintiff) was shot by Mandlakayise Lucas Mabaso (Mabaso) and Thabo Ezekiel Ledwaba (Ledwaba), two Metropolitan Police Officers who were acting within the course and scope of their employment with the City of Johannesburg (the assault).  The plaintiff was subsequently detained under police guard at the Rand Clinic and Natalspuit Hospital until his release on 8 April 2005.

As a result of the assault, which the plaintiff contended happened accidentally, the plaintiff has been left permanently paralysed.  He instituted action against the City of Johannesburg as well as Mabaso and Ledwaba for compensation amounting to several million rand for damages suffered. 

The City of Johannesburg, Mabaso and Ledwaba (collectively referred to as the defendants) pleaded that Ledwaba shot the plaintiff in defence of Mabaso, whom the plaintiff assaulted and pointed an unlicensed firearm at.  Ledwaba passed away before the commencement of the trial.  During the trial, the court was therefore faced with two mutually destructive versions, that of the plaintiff on the one hand and Mabaso on the other.

The matter proceeded to trial in the South Gauteng High Court.   During the course of the trial, the plaintiff effectively pursued his claim solely on the basis that Ledwaba had acted negligently when he fired the rounds which caused his injuries.  On the other hand, evidence was led on behalf of the City of Johannesburg in support of a defence of justification.  The trial judge mero motu called witnesses to give evidence and ordered that an inspection in loco be held without any of the parties agreeing to the necessity thereof.  

At the end of the trial, the judge accepted the plaintiff's version and held that the City of Johannesburg and Mabaso were liable for the plaintiff's damages, without pronouncing on the onus.  The trial judge denied leave to appeal. The Supreme Court of Appeal (SCA) was petitioned and granted such leave.  

The following issues were raised on appeal: 

  • Whether the trial judge had adopted the proper approach when faced with mutually destructive versions;
  • Whether the trial judge had shown bias against the City of Johannesburg and Mabaso;
  • Whether the calling of witnesses by a trial judge in civil proceedings was irregular; and
  • Whether the ordering by the trial judge of an inspection in loco was irregular.  

The SCA, per Judge Mhlantla (Judges Navsa, Heher, Tshiqi and Wallis concurring), upheld the appeal with costs including the costs attendant on the employment of two counsel.  The order of the court a quo was set aside in its entirety.  

The SCA held that the plaintiff bore the onus of proof and had the duty to prove that Ledwaba had been negligent in shooting him accidentally. The defendants did not have a duty to prove the defensive justification, because this could not be raised against a claim of negligence.  

The SCA was particularly critical of the conduct of the trial judge and found that: 

  • It was unbecoming of a judicial officer to conduct himself in the mater that the trial judge did;
  • The calling of witnesses by the trial judge was an irregularity;
  • The trial judge improperly interfered and took a very active role in the trial;
  • The trial judge breached many canons of judicial behaviour and was overzealous in his approach; and
  • The conduct of the trial judge constituted an irregularity which would have vitiated the proceedings but for the parties' request that the SCA also considers merits.  

The SCA went as far as finding that the actions of the trial judge, "had the effect of creating a perception that he was the plaintiff's second counsel." 

Webber Wentzel acted for the defendants in this matter.

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