Zizipho Bridgette Zide v Xhobani Security Services and Falcon Firearm Training Academy

On 8 June 2016, the appellant was shot during a student protest at Walter Sisulu University, Mthatha Campus, resulting in rupture of her right eyeball. She claimed R16 million in damages from two security companies (first and second respondents), alleging she was unlawfully and intentionally/negligently shot by a security guard inside Chumani residence while it was quiet and peaceful. About 500 students were protesting violently, throwing rocks and bottles at security guards protecting the Great Hall examination venue. The second respondent was contracted by the first respondent for crowd control expertise. Security guards fired rubber bullets and paintballs at protestors after negotiations failed. The appellant testified she was shot by a security guard on the stairway landing between the 2nd and 3rd floors of her residence, describing the shooter as wearing black attire and having light complexion. She claimed she was not part of the protest and was heading to the library. Respondents pleaded that shooting occurred in private defence/necessity and that if the appellant was shot, she was among or near protestors, having voluntarily assumed the risk.

• Whether the appellant's evidence as a single witness was credible and satisfactory in all material respects
• Whether the appellant was shot inside Chumani residence or in the vicinity of the protesting students
• Whether the security guards' use of force was justified on grounds of necessity and/or private defence
• Whether the appellant voluntarily assumed the risk of injury (volenti non fit injuria)
• Whether the appellant contributed to her injury through her own negligence
• Which respondent's employee shot the appellant and the implications for vicarious liability
• Whether the trial court materially misdirected itself in rejecting the appellant's evidence

The appeal was dismissed with costs on scale A referred to in Uniform Rule 67A, including costs of the postponement on 5 February 2024.

The binding legal principles established are: (1) For a single witness's evidence to found judgment in civil proceedings, it must be credible and satisfy the court that truth has been told, despite any shortcomings; contradictory evidence on material issues, particularly when coupled with disavowal of prior testimony and avoidance of innocuous concessions, destroys credibility. (2) Where a defendant admits conduct but pleads justification (private defence/necessity), the onus shifts to the defendant to establish the defence, but the plaintiff bears the evidentiary burden regarding disputed facts such as location and circumstances. (3) The defence of necessity/private defence in crowd control situations requires: (a) reasonable grounds for believing there was imminent danger to life, limb or property; (b) use of proportionate force having regard to the nature and extent of danger, likelihood of serious injury, and value of property threatened; the court must avoid being an "armchair critic" and consider circumstances operating on the actor's mind at the time. (4) For volenti non fit injuria to succeed: the plaintiff must have had knowledge of the risk, appreciated its ambit, and consented (expressly or impliedly); where the plaintiff foresaw and appreciated the danger, consent will be implied; the injury must result from materialization of the risk that was subjectively foreseen and assumed. (5) An appellate court will only interfere with factual findings and credibility assessments where there is demonstrable material misdirection by the trial court.

The court made important observations regarding: (1) The duty of courts to ensure competent interpretation and to seek clarification where interpretation may be inaccurate, particularly where this might result in miscarriage of justice - the court is not merely an umpire but an administrator of justice (citing R v Hepworth). (2) The drawing of adverse inferences from failure to call witnesses requires proof that the witness was available and their evidence would elucidate the facts; absent indication of availability, such inference should not be drawn. (3) The court expressed sympathy for the appellant's injury and loss of sight in one eye, acknowledging the pain and horror she experienced, but noted that her election to present a false version rather than being candid militates against her success. (4) The court noted that counsel representing the appellant in the trial court should have corrected the manifestly inaccurate interpretation regarding the description of the shooter during re-examination. (5) The importance of proper collation of appeal records to avoid postponements and wasted costs.

This case is significant for its application of principles concerning: (1) Assessment of credibility of single witness testimony in civil cases, particularly where the witness gives contradictory evidence and avoids making innocuous concessions; (2) The defence of necessity/private defence in the context of crowd control during violent student protests, establishing that security personnel may use proportionate force (rubber bullets, paintballs) when faced with violent attacks and after less harmful methods fail; (3) The defence of volenti non fit injuria where a person places themselves in proximity to violent protest action despite foreseeing the risk of harm; (4) The proper interpretation of witness testimony and the court's duty to seek clarification where interpretation may be inaccurate or ambiguous; (5) Standards for appellate interference with trial court findings of fact and credibility; (6) The distinction between onus of proof and evidentiary burden in civil proceedings involving admitted conduct with justification defences.