In March 2025, the High Court reaffirmed the well-established principle that the failure to call a key witness in litigation may result in adverse inferences being drawn against the party who elects not do so.
In this case, the claimant instituted an action for damages against a security services company following an incident in which the claimant was wrongfully shot by an armed security guard acting in the course and scope of his employment with the defendant.
The court reaffirmed that any infringement of bodily integrity is prima facie unlawful and once harm is proved, the onus shifts onto the defendant to justify the event. The claimant and an eyewitness testified on the claimant’s behalf. Their testimonies indicated that the claimant was holding a gate shift mechanism called a ‘pennetjie’ when he was shot at by the security guard.
The onus thus shifted onto the defendant to establish that the shooting was justified and not unlawful. The defendant did not call the shooter as a witness to testify on its behalf. The court consequently drew an adverse inference against the defendant for the shooter’s failure to testify given that he was the individual who shot at the claimant and could have provided an exculpatory account of events if he had one.
The only defence which was raised by the defendant was based on hearsay statements led by the shooter’s colleague indicating that that the claimant appeared to have been armed. The court determined that the defendant failed to discharge the burden of proof after failing to lead its employee as a factual witness and dismissed the defendant’s defence on the basis that no application was made to admit the hearsay evidence that was presented. The defendant was held liable for the claimant’s damages.
This judgment serves as a reminder that employers can be held liable for the wrongful acts committed by their employees whilst acting in the course and scope of their duties, particularly where they fail to provide key absolving evidence. Failing to call key witnesses can lead to adverse inferences being drawn.