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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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