Court name
High Court of eSwatini
Case number
244 of 2007

Khumalo v Reilly NO and Others (244 of 2007) [2011] SZHC 111 (28 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 111













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE



Civ.
Case No. 244/07







In
the matter between







PRINCE
KHUMALO
…................................................................................Plaintiff



vs



TERENCE
EVEZARD REILLY N.O
…...............................................1st
Defendant



ELIZABETH
REILLY N.O.
…............................................................2nd
Defendant



JAMES
WEIGHTON REILLY N.O.
…................................................3rd
Defendant



PETROS
MGCIBELO NGOMANE N.O.
…........................................4th
Defendant







CORAM:
Mamba J



FOR
Plaintiff: Mr. S. Dlamini



FOR
Defendants: Mr. K. Motsa







JUDGMENT



28th
April 2011







[1]
The Hlane Game Sanctuary which has been referred to herein as either
Hlane Royal National Park or as Hlane Wild Life Nature Reserve is
situated in the Lubombo Region, near Simunye. It comprises more than
one camp and there is at least one gate leading in or out of each
camp. Two of such gates are the Elugodvweni and Emdolofiyeni gates. I
shall hereinafter refer to these gates as the first and second gate
respectively.











[2]
According to the plaintiff, at about 7 pm on 25
th
June 2006, he together with his
friend Stanley Phuzukumila Sifundza, otherwise commonly known as
Mafudede, a Siswati corruption or rendition of Mcfadden, left Siteki
bound for KaKhuphuka to fetch certain persons who had earlier that
day been transported there by Sifundza. They travelled in Sifundza's
Kombi bearing registration number SD 633 PN. It was just the two of
them in the motor vehicle and Sifundza was driving it. The shortest
route to their destination, he said, was the road that passed through
the Hlane Game Reserve.











[3]
On reaching the game park, they went through the first gate without
any incident but when they got to the second gate, the boom gate was
closed. Sifundza stopped his motor vehicle, sounded his horn or
hooter two times and about fifteen (15) Game Rangers emerged from the
dark. They demanded to search the motor vehicle to which permission
was granted by Sifundza, who alighted from the motor vehicle and
opened the doors thereof to the Game Rangers to conduct the search.
After the search, which apparently revealed nothing, Sifundza
returned to his place behind the steering wheel in readiness to go
through the gate but the Game rangers would not open it. Again he
alighted from the motor vehicle to seek an explanation from the game
rangers why they would not allow him through. Sifundza then decided
to call the police and since he had insufficient money on his mobile
telephone to call the police, one of the Game rangers advised him to
call them on their 999, which is one of the Police free telephone
lines. The game ranger also advised him to go through the gate to
stand on an ant-hill nearby where he would be able to have access to
telephone network coverage. Mafudede obliged.







[4]
After Mafudede had proceeded to the ant-hill one Game ranger opened
the boom gate and advised the plantiff to drive the Kombi through to
the other side to join Sifundza on their journey as the search on the
motor vehicle had yielded nothing to warrant their further detention
there. The plaintiff says he complied but lo and behold, as he drove
past the gate and whilst still on the first gear, he had the sound of
rapid gun fire. The shots hit him and his vehicle. In all three shots
hit him on the left shoulder-blade. He jumped out of the moving
vehicle and fled into the dark forest or thicket. From his hide-out
in the bush, he was able to see the game rangers searching the Kombi
again with the aid of a torch. They unsuccessfully looked for him in
the nearby bush and he was able to overhear one of the game rangers
saying that if found he should be killed as a way of destroying any
evidence against them.











[5]
The Plaintiff says he managed to crawl on his knees in the dark
forest until he reached a sugar cane field. In the early morning
hours of the next day, a police officer from Simunye called him on
his mobile telephone. He told him of his ordeal and location. Later
police in the company of Mafudede came and took him to Good Shepherd
hospital for medical attention. From there he was transferred to the
Mbabane Government hospital and later to Chris Hani Baragwanath
hospital in South Africa where he was hospitalized for about
six-weeks. The plaintiff testified further that two bullets are still
lodged in his body. He told the court that the doctors advised him
against an attempt to remove them as they were lodged or imbedded in
a sensitive or precarious part of his body.











[6]
The evidence of Mafudede Sifundza, who gave evidence as Pw2, is in
all essential respects, similar to that of the plaintiff. Sifundza
testified though that he saw and spoke to about 4 game rangers at the
second gate. These game rangers were armed with spears, knobksticks
and guns. One of them rebuked him for hooting in the park and said
this was prohibited. His evidence was that it was the plaintiff who
advised him to call the police on their 999 emergency line.











[7]
The plaintiff has stated in his particulars of claim that the rangers
acted intentionally and unlawfully in shooting and wounding him as
aforesaid and they were acting during the course of their employment
as servants of Big Game Park Trust, and within the scope of such
employment. Consequent upon such shooting, the plaintiff says he
suffered damages in the sum of E930,000-00 which he now claims from
the Defendants, in their capacities as Trustees of the said Trust.











[8]
The defendants admit that on the relevant date, an employee of the
Trust, one Simon Hlandze who was at all material times acting as a
Game ranger or a person acting on the instructions and or directions
of a Game ranger, fired about six shots with a firearm at a Kombi
motor vehicle that was occupied by the plaintiff and another person,
unknown to them. The defendants have stated that the motor vehicle
was fired at whilst it was in the process of being driven away at
high speed from a check point in an endeavour to resist or avoid an
arrest by the game rangers. The rangers wanted to arrest the
occupants of the motor vehicle because they had evidence or at least
reason to suspect that the occupants of the motor vehicle had
contravened the provisions of the Game Act Number 51 of 1953 (as
amended) (hereinafter referred to as the Act) in that they had hunted
and or killed two Timpala. In the circumstances, the defendants plead
that their action in shooting and wounding the plaintiff was lawful
and justified as per the provisions of s 23(2)(d) of the Act.











[9]
Before I revert to the evidence led by the defendants in support of
their case, I note that the defendants have not pleaded that they
were acting in private (self) defence in shooting the plaintiff.
Whilst they aver that the rangers had evidence that the plaintiff and
his confederates had hunted game in the nature of two timpala, they
have not alleged that they were themselves under attack or that they
had reason to believe that such attack was imminent; or that their
property (game) was under attack and protection or defence thereof
necessary. The plea or defence is squarely based on the right to
effect an arrest; grounded on a reasonable belief that the person
targeted to be arrested has contravened one or more of the provisions
of the Act. That being the case, I shall not burden this judgment
with an examination or discussion on whether or not the defendants
have satisfied the requirements of private or self-defence. I say so
notwithstanding that both Counsel made submissions before me on this
point. That is not the defendants' case though.











[10]
The evidence by the four (4) defence witnesses may be summarized as
follows:



[10.1]
On the day in question, at about 2.00 pm, a white BMW (motor vehicle)
owned and driven by Mafudede entered the Game park through the first
gate and drove towards the second gate. Through their communications
radio (walkie Talkie), the rangers at the first gate alerted those at
the second gate about the presence and movement of the motor vehicle
aforesaid. However, after sometime, the motor vehicle drove towards
the first gate and exited the park before it reached the second.
Before it left the Park, the rangers (at the first gate) demanded to
search it. This demand was strenuously resisted by Mafudede who
stated that his motor vehicle could only be searched by the police.
He, however, later relented. The search yielded nothing and before
driving away from that check point, Mafudede held Vusi Mahlalela, a
game ranger,by the scruff of his neck - literally - and informed him
that he would shoot him dead the next time he came across him. There
were three occupants in the motor vehicle. These were the plaintiff,
Mafudede and an unidentified person.







10.2.
Being suspicious of the unexplained sudden change of direction of the
BMW motor vehicle, another game ranger Simon Hlandze and two of his
co workers went to investigate. They were able to find the spot where
the motor vehicle had stopped and later returned to the first gate.
Next to the road on that spot, footprints or tracks and blood stains
on the ground lead them to two dead male timpala. They had been shot
and their throats slit open. They left them there and returned to the
second gate. (I shall assume that the intention was to scout or
survey the Park from a vantage point in an endeavor to discover who
would return to collect the dead animals).



10.3.
Mphikwa Gamedze, a Game ranger stationed at the second gate testified
that at about 8 pm they received a message from their colleagues at
the first gate that a Kombi had entered the park and was driving
towards the second gate. Indeed the Kombi approached the second gate.
It had its bright lights on. Before getting closer to the gate, it
stopped and switched on its dim lights. The driver got out of the
motor vehicle and moved through its front towards the other side of
the motor vehicle. He and his colleagues noticed that something was
being pulled and dragged out of the motor vehicle. After the
passenger door was closed, the driver returned to his side and again
drove the motor vehicle towards the gate. It stopped just before the
closed gate and the driver hooted twice before the Game rangers
approached it. The driver was Mafudede who told the Game rangers to
open the gate for him as he was rushing a sick person to hospital.







10.4.
After introducing themselves as Game rangers, the rangers-sought
permission from Mafudede to search the motor vehicle, which
permission was granted. Mr Sifundza opened, the passenger door to the
rangers. On the floor of the motor vehicle the rangers found animal
fur, blood and dung (animal droppings) which they determined belonged
to an impala. On being asked about these, Mafudede denied its origin
and suggested that these were probably the remains of a goat that had
been carried by a traditional wedding party that had used his motor
vehicle earlier that day.







10.5.
Upon inspection at the spot where the Kombi had stopped just before
reaching the gate, two rangers, Majahonke Manana and Dumsani Dlamini
found two dead timpala. When the rangers would not open the gate to
allow the Kombi through, Mafudede indicated that he wanted to
telephone his attorney on his mobile telephone, claiming that the
rangers were abusing him. He told the rangers that he could not have
access to the telephone network from the spot near his motor vehicle
and he then moved through the boom gate apparently in an attempt to
locate a spot from which he could use his cellular telephone. He,
however, ran away and disappeared into the dark, leaving his Kombi
and two occupants behind.







10.6.
On being asked to alight from the Kombi, the two occupants refused to
do so and locked themselves in the motor vehicle, and one of them
took the drivers seat. This person, it is common cause, was the
plaintiff. In an attempt to resolve the stand off, the rangers
resolved to drive in their motor vehicle to the nearest police
station. When the boom gate opened to let their motor vehicle
through, the plaintiff drove the Kombi through the gate at high speed
and drove away. It was at this stage that Simon Hlandze, fired about
seven shots with an R5 rifle at it in an effort to stop the motor
vehicle, so that its occupants could arrested. He aimed at its
wheels. He believed, reasonably, he said, that the occupants of the
Kombi had violated the Act by hunting game in the Park. The two dead
timpala that had been off-loaded from the motor vehicle, the dung,
blood and animal fur found in the motor vehicle were evidence of this
contravention of the Act, he said.







10.7.
The Kombi was found about 700 metres away from the gate by the
rangers. Its lights were on. The front doors were opened and, its
occupants had vanished. A search in the nearby surroundings revealed
nothing. There was blood on the driver's seat and the right front
wheel had been shot and punctured. The Police were alerted and they
arrived at the scene at about 11 pm in the company of Mafudede. They
were shown the animal fur, dung and blood in the Kombi and the two
dead timpala. The rangers and Mafudede immediately recorded their
respective statements to the police on the incident. These statements
were handed in court by consent and were individually marked exhibits
A to G. That concluded the case for the defendants.











[11]
From the above evidence, one notes that:




  1. The
    plaintiff and Mafudede deny having driven in the white BMW in the
    game park in the afternoon on the day in question. Mafudede says he
    was watching a soccer match at Mpolonjeni at that time and could not
    have been at the Game Park. He also testified that he never ever
    owned such a car;



  2. The
    plaintiff and Mafudede aver that they were the only two occupants of
    the Kombi in the game park that evening.



  3. Both
    Mafudede and the plaintiff testified that they were allowed by the
    game rangers to go through the second gate. They did not run away
    from the check-point and were surprised when the Kombi was fired on
    and it was only then that they ran away into the dark forest.




(d)
The plaintiff's case is that there was no blood, dung or animal fur
found in the Kombi.







[12]
For purposes of this judgment, it is not necessary for me to make a
finding on whether or not the plaintiff and Mafudede were in the game
park at around 2 pm on the relevant day. A determination of this
point would only be necessary and or desirable where the credibility
of the witnesses and the probabilities in the case are on the
spot-light. I suspect that the only reason the defendants led this
evidence was to suggest that these two persons, plus the unknown or
unidentified third person, had entered the game park in the
afternoon, killed the two timpala and left them in the park with the
intention of collecting them at night under cover of darkness. They
then returned at night on this mission and were caught by the rangers
at the second gate. As to when the animals had been hunted and
killed, is in my judgment, a secondary and peripheral issue to the
incident of the actual shooting in question.







[13]
On the presence or otherwise of blood, animal fur and game droppings
in the Combi, the rangers were all in unison that such substances
were present in the Combi at the relevant time. Police officers
Pollen Motsa, Alphabert Mkhabela and Simon Lukhele all confirm the
existence of blood stains in the motor vehicle. This is separate from
the blood stains that were on the driver's seat. Motsa also witnessed
the presence of "some fur which I'm not familiar with". Mr
Mkhabela also refers to the presence of "fur and dung
(umsimbane)" in the Combi. It is common ground that "umsimbane"
refers to animal droppings such as that excreted by goats, sheep and
game of the same class. The Game rangers who testified in court were
adamant that the animal dung and fur found in the Combi belonged to
an impala and they were very familiar with these in their daily
operations as Game rangers. Mafudede acknowledged the presence of the
dung to the police and suggested that this was from a goat which had
been transported by someone else in his motor vehicle earlier that
day. He was, however, unable to point out to the police the person
who had transported this goat or where such goat had been taken to.











[14]
Whilst the scenes of crime police officers were called to the scene
and the Combi was photographed jn situ, no such photographs were
exhibited in court. Had such photographs been taken and exhibited in
court, they may have illuminated this issue. Notwithstanding this
deficiency or loop-hole, the evidence before me satisfies me on a
preponderance of probabilities that there was fur, blood and dung
found in the Combi when it was searched at the second gate. I am
further satisfied that the rangers reasonably believed then that the
fur and dung in particular, belonged to an impala.







[15]
The statement made by Mafudede to the police on 26 June 2006, after
the shooting, was handed in by consent as exhibit D. In that
statement he stated
inter
alia
that:



"I
do recall very well on 25
th
June 2006 at about 0700 hours, I
left Siteki to Hlane with Prince Khumalo
and
a person who had asked for a lift to Ngomane
.
...[After the shooting incident] - we went to where the Combi was and
we found that it had been shot at and
the
people I was with were nowhere to be found
and
there was a pool of blood inside the Kombi." (I have added the
emphasis) This statement is a clear acknowledgment by Mr Sifundza
that there were three persons in his Kombi when it got to the second
gate and that when he left it there, two persons remained in it. His
and plaintiffs denial in court of the presence of a third person in
the Kombi at the relevant time is mischievous. It is a lie. The
mischief lies in their unwillingness to reveal or identify the third
person.











[16]
The plaintiff and Mafudede denied that they had the impala in the
motor vehicle they travelled in. They also denied having made a stop
just before reaching the second gate. They did not however deny the
discovery of the two dead timpala by the rangers. They maintained
however, that they had noting to do with these. Again, the evidence
of the rangers is very clear on this point. The motor vehicle
approached with its bright lights. It switched on its dim lights and
stopped. The rangers could clearly see the driver move in front of
the stationary motor vehicle and going to open the passenger's door.
The rangers were able to hear or notice the door being opened and
something being pulled or dragged out of the motor vehicle. It was at
this very spot that the two rangers, Manana and Dumisani Dlamini
found the two dead timpala. This search, one should remember, was
carried out after Mafudede had bolted and the plaintiff and his other
companion locked themselves inside the Kombi. I have no hesitation
whatsoever in accepting the defence evidence that the two dead
timpala were found at the alleged spot and under those circumstances
described by the defence witnesses. The conclusion is, in my
judgment, inescapable that these timpala were deposited there by the
occupants of the Kombi after realizing that the second gate was
closed and they would be searched on reaching it.











[17]
The version of the plaintiff on how he was shot at is rather bizarre
in the circumstances of this case. I have found it as a fact that he
and the third person in the Kombi locked themselves in the motor
vehicle after Mafudede ran away and escaped into the night.
Mafudede's escape and the discovery of the two timpala no doubt
reinforced the suspicion by the rangers that the plaintiff and his
confederates were guilty of hunting game in the park. The game
rangers were determined to at least question the remaining occupants
of the motor vehicle. It is highly improbable that the rangers or
just one of them could have opened the boom gate and told the
plaintiff to drive through and to rejoin Mafudede on the other side.



(Mafudede
had of course escaped into the dark). It is again unlikely in the
extreme that having allowed the plaintiff to drive through the gate,
the rangers would then open fire on the motor vehicle. I accept the
evidence of the defendants that the plaintiff, without any prompting
from the rangers, drove the Kombi away from the check point in the
manner and under the circumstances described by the rangers, in
particular Simon Hlandze who then fired at it with his R5 rifle. I
now examine the lawfulness or otherwise of that shooting.







[18]
I should point out from the outset that where the act complained of
(injuria) involves an interference, very often physical interference
with the plaintiffs property or bodily intergrity, such as an
assault, arrest and false attachment of property, once the plaintiff
establishes such interference, the defendant bears the onus or burden
of proving that the interference, in this case the assault, was
lawful or excusable. See MAKHOSAZANA DLAMINI v RADIO SHOP Civ Case
3118/05, judgment of this court delivered on 28 April 2011, MINISTER
OF LAW AND ORDER v HURLEY, 1986(3) SA 568 (A) MABASO v FELIX, 1981
(3) SA 865(A). The plaintiff need not of course prove that the
defendant knew that his actions are unlawful. Vide MINISTER OF
FINANCE v EBN TRADING (PTY) LTD 1998(2) SA 319(N) at 329 and MINISTER
OF JUSTICE v HOFMEYER 1993(3) SA 131(A) at 157. In the present case,
the plaintiff has clearly proven that he was on the day in question
shot and wounded by servants of the defendants. The defendants admit
this fact and have pleaded that it was lawful or justified in the
circumstances. The origin of this defence is s23(2) and (3) of the
Act which provides that:



"23
(2) Any game ranger or person acting on the instructions of a game
ranger shall have the powers and the right:



(a)
to carry and use firearms in the execution of his official duty
provided such firearms are properly licensed;



(b)to
use firearms in self-defence or if he has reason to believe that his
life, or the life of any of his colleagues, is threatened or is in
danger;



(c)
to arrest without a warrant any person suspected upon reasonable
grounds of having contravened any of the provisions of this Act or
regulations made thereunder;



(d)to
use reasonable force necessary to effect the arrest of or to
overpower any person who resists arrest and who is suspected on
reasonable grounds of having contravened any of the provisions of
this Act;



(e)to
carry out searches without a warrant under section 22 of this Act;



(3)
A game ranger or person acting on the instructions of a game ranger
shall not be liable to prosecution in respect of any act or omission
done in the exercise of his powers or rights under subsection (2) of
this section."











[19]
It is common ground that Simon Hlandze, the person who actually shot
the plaintiff was not a game ranger but a person acting on the
instructions of a game ranger. This is contained in his testimony in
court and in the statement which was handed in by consent as exhibit
B. Again, it is common ground as per exhibit G, that the firearm he
used in the shooting was "properly licensed". (I do not
know what is meant by being "properly licensed" in this
section. I would have thought that a firearm is either licensed or
not licensed at all; any qualification of the act of licensing clouds
the issue). The reference to prosecution in subsection 3 above refers
to criminal prosecution and is not, in my judgment a blanket or an
all embracing immunity from such criminal prosecution or civil
liability. The immunity obtains only in those cases that fall with
the acts sanctioned by subsection 2. For instance, the use of an
unlicensed firearm, an arrest without reasonable belief that there
has been a contravention of the Act or the use of unreasonable force
to effect an arrest, may not attract the protection in question.











[20]
In narrating and analyzing the evidence above, I have referred to the
events and discoveries that were made by the game rangers and also
the reactions of the plaintiff and his companions or fellow
travellers. The question whether or not the rangers reasonably
suspected that these persons had committed a contravention of the Act
ie hunting game, is objective. See DUNCAN v MINISTER OF LAW AND
ORDER, 1986(2) SA 805 (A) at 814 where the court said:







"It
was common cause that Bronkhorst was a peace officer and that the
assault on Ruhsmann constituted an offence referred to in Schedule 1.
It was also common cause that the question whether a peace officer
"reasonably suspects" a person of having committed an
offence within the ambit of s40 (1) (b) of the Act is objectively
justiciable. And it seems clear that the test is not whether a
policeman believes that he has reason to suspect, but whether, on an
objective approach, he in fact has reasonable grounds for his
suspicion (cf Watson v Commissioner of Customs and Excise 1960 (3) SA
212 (N) at 216; R v Van Heerden 1958 (3) SA 150 (T) at 152; Wiesner v
Molomo 1983 (3)SA151
(A)
at 159)." I have no doubt whatsoever that any reasonable person,
having witnessed the plaintiff and his companions stop their motor
vehicle before reaching the gate and off-loading something which
later turned out to be two dead timpala, the discovery of blood, fur
and dung in the Combi and the abandonment of the Combi by Mafudede
and his running away and disappearance, plus the act of locking
themselves in the Combi by the plaintiff and the unidentified third
person, would have suspected that the plaintiff and his companions
had contravened the provisions of the Act. This suspicion was
therefore reasonable in the circumstances. See also BCC
PHARMACEUTICALS (PTY) LTD v MINISTER OF HEALTH AND OTHERS, 2007 (3)SA
72(C).







[21]
After the discovery of the two dead timpala the rangers demanded that
the occupants of the Combi should get off the motor vehicle and they
refused to do so. The rangers restricted their movement by
inter
alia
not allowing
them through the gate. But even before this incident, their movement
had been curtailed and it was this curtailment or restriction that
prompted Mafudede to escape on the pretext of trying to telephone his
attorney. Simon Hlandze clearly stated that when the rangers opened
the gate to allow their own motor vehicle through, the aim was to
call the police to the site where the plaintiff was held. When the
gate opened and the plaintiff sped away in the Combi, Simon Hlandze
shot, first, at the Combi's right front wheel, in an attempt to
arrest and detain the plaintiff and his companion. When the plaintiff
drove through the gate and sped away in the Combi, it was clear to
him that he was about to be arrested and detained. He was running
away from this. (Mfanimpela Motsa v Mduduzi Ndlangamandla and
Another, Civil Case Number 2788/2006 a judgment by Agyemang J,
delivered on 28/10/2010) and the cases therein cited and Prince and
Another v Minister of Law and Order and others, 1987 (4) SA231

(E).











[22]
The next question is whether the force used by the rangers was
reasonably necessary to effect the intended arrest of the plaintiff.
Whilst it is important to note that a firearm was used in wounding
the plaintiff, it has to be remembered that the game ranger who
actually shot the plaintiff did not go out of his way to arm himself
with the gun in order to deal with the situation at hand. The
situation found him armed with that R5, so to say. He was in a game
park and looking after game. It is a matter of common notoriety for
which this court may legitimately take judicial notice of, that armed
poaching is rife in our game parks. Consequently rangers have to be
armed with appropriate weaponry to protect themselves and the game
under their guard. Again, it should be noted that Simon Hlandze
deliberately aimed at the right front wheel in trying to prevent the
Combi from driving away. This evidence has not been challenged and is
supported by the evidence of Alphabert Mkhabela, the Police officer
who examined the Combi and found a bullet hole in the rim in
question. The shooting occurred at night and in the dark. Visibility
was also compromised by the dust caused by the speeding Combi. So,
the situation was sudden, unexpected, fast and fleeting. This
situation was solely created by the plaintiff. I do not think that
under those conditions it would have been realistic for Hlandze to

resort to some other means of
trying to prevent the plaintiff from fleeing the scene and evading
arrest. He used that which was readily available to him for him to
respond appropriately to the situation. The fact that not all the
gunshots hit at their intended target i.e. the wheels, does not
detract from the central fact that there was no deliberate intention
to shoot at the plaintiff. I am not unmindful of the fact that no
less than six shots were fired at the fleeing Combi and some of these
hit and shattered the rear windscreen of the motor vehicle and 3 hit
the plaintiff. A lot of factors could account for this and this
should not lead to the conclusion that there was a deliberate and
conscious attempt to kill the plaintiff rather than arrest him. Such
a conclusion is certainly not supported by the probabilities or
circumstances of this case. In the result I hold that the force used
herein was reasonable to effect an arrest of the plaintiff and his
companion.











[23]
For the foregoing reasons, the action is dismissed with costs.











MAMBA J