On 3 November 2018, the plaintiff alleged he was unlawfully assaulted by members of SAPS in Molteno, Eastern Cape, when he was shot on his left foot with a firearm. He claimed he was walking home from work around 19h00-20h00 when he encountered children being chased by police. He heard gunshots, turned to run away, and sustained an injury to his left foot resulting in fracture of the 4th and 5th metatarsals, tissue loss, and traumatic amputation of the 4th toe. He was hospitalized and underwent surgery. The defendant denied the allegations, pleading that SAPS members were conducting a stop and search operation when they were attacked by stone-throwing youths, necessitating the use of minimum force in self-defence and to protect state property. The defendant specifically denied shooting the plaintiff, or alternatively pleaded justification based on self-defence and necessity. Merits were separated from quantum. At trial, only the plaintiff testified before closing his case, whereupon the defendant applied for absolution from the instance.
Absolution from the instance granted with costs in favour of the defendant.
At the close of a plaintiff's case in an application for absolution from the instance, the test is whether there is evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff. While credibility should not normally be investigated at this stage, where a witness's evidence has palpably broken down and is clearly untrue due to material contradictions and improbabilities, the court may take credibility into account. A plaintiff who admits he did not see who shot him and merely assumed it was police based on seeing a police vehicle, without corroborative evidence, fails to establish a prima facie case that police members were responsible for his injuries.
The court noted that the plaintiff failed to produce documentation of his alleged month-long hospitalization and failed to call available witnesses (Vuyani) who could have corroborated his version of events. The court also observed the improbability of finding a spent cartridge case at the exact location where the plaintiff claimed to be shot, given that cartridges eject near the shooter's position, not at the point of impact. The court noted discrepancies between the injuries pleaded in the particulars of claim (fracture of 4th and 5th metatarsals, tissue loss, traumatic amputation) and the plaintiff's testimony (only fractured toe).
This case illustrates the application of the absolution from the instance test in South African civil procedure, particularly in delictual claims against the police. It demonstrates that while credibility is not normally assessed at the absolution stage, courts may do so where evidence has "palpably broken down" and is clearly untrue. The case emphasizes the importance of credible, consistent evidence and corroboration in establishing a prima facie case, especially where the plaintiff bears the onus of proving that police members caused the alleged injury. It also highlights that assumptions and speculation (such as assuming police shot him based solely on seeing a police vehicle) are insufficient to discharge the plaintiff's evidential burden.