Chinodakufa and Others v Minister of Police (2018/1830) [2025] ZAGPJHC 1043 (13 October 2025)

Case Note

Chinodakufa, Mabvirekare and Butoyi v Minister of Police
Case No 2018/1830, Gauteng Division, Johannesburg
(“Chinodakufa v Minister of Police (2018/1830) [2025] ZAGPJHC ___ (13 October 2025)”)
13 October 2025 – Van Aswegen AJ

Reportability

The judgment is expressly marked reportable because it revisits the constitutional limitations on police use of deadly force under section 49 of the Criminal Procedure Act 51 of 1977. It clarifies the evidentiary burden that rests on the State when reliance is placed on statutory justification for a shooting, emphasises the requirement of proportionality and objective reasonableness, and illustrates how courts must weigh police evidence against constitutional values protecting life, bodily integrity and the presumption of innocence. The decision is therefore of broader doctrinal value for criminal-procedure, delict and constitutional-law jurisprudence and serves as practical guidance for law-enforcement conduct and subsequent civil litigation.

Cases Cited

S v Ganiel 1967 (4) SA 203 (N)
S v Webber 1971 (3) SA 754 (A)
Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA)
Ex Parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC)
April v Minister of Safety and Security 2003 (1) All SA 270 (SE)

Legislation Cited

Criminal Procedure Act 51 of 1977, section 49 and section 40
Constitution of the Republic of South Africa, 1996, Chapter 11 and section 12
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, section 3
Uniform Rules of Court

Rules of Court Cited

Uniform Rule 18(4)

HEADNOTE

Summary

Three passengers travelling in a yellow Nissan Micra were wounded when two police officers fired four shots at the vehicle during a night-time incident in First Street, Betrams, Johannesburg. The officers alleged that the shooting was justified under section 49(2) of the Criminal Procedure Act because they believed a crime was in progress, that the occupants posed a lethal threat and that the shots were aimed only at the tyres to halt the fleeing car. Liability and quantum were separated. Only the question of liability, turning on the defence of statutory justification, was determined.

After hearing the evidence of the two officers and the first plaintiff, the court found substantial contradictions, improbabilities and exaggerations in the police version, particularly regarding their observation of a supposed firearm, the lapse of time between warning and aimed shots, and the absence of any alternative means of effecting an arrest. It held that the State had failed to discharge the onus of proving that the force used was reasonably necessary, proportionate or that any of the prerequisites of section 49(2) were present.

The shooting was accordingly declared unlawful, the defendant (Minister of Police) was found vicariously liable for all damages to be proved, and costs followed the result.

Key Issues

The court addressed whether the policemen had an objectively reasonable suspicion that the plaintiffs or the person who leapt into their car were suspects in a forcible, violent crime; whether any clear attempt at arrest had been made; whether the occupants resisted such arrest; and whether the use of potentially deadly force—in the form of four shots fired toward the vehicle—was necessary and proportionate as contemplated by section 49(2).

Held

The court held that the police officers' belief that a crime was afoot was speculative, their fear of deadly violence ill-founded, their firing of shots retaliatory rather than preventive, and their account riddled with inconsistencies. None of the statutory requirements of section 49(2) were satisfied. Consequently, the shooting was wrongful and unlawful, rendering the defendant liable.

THE FACTS

The incident unfolded shortly after 21:00 on 25 September 2017. The plaintiffs were travelling slowly southward along First Street after negotiating past a disturbance in nearby Sydney Street. A man—subsequently identified as “Odar”—ran from the melee, crossed behind a marked police vehicle moving in the opposite direction, and jumped onto the bonnet and then into the Micra’s front passenger seat. The driver braked, and confusion reigned in the dark street where only some lamps worked.

Two officers, Sergeants Muhlari and Maponyane, had exited their patrol vehicle almost simultaneously with the runner’s entry into the Micra. Both claimed to shout “police” and to activate blue lights and siren. Within seconds they discharged two “warning” shots into the roadway. They testified that, as the Micra accelerated away, one rear passenger pointed “an object” which they assumed to be a firearm, whereupon each fired a second shot aimed at the right rear tyre.

The Micra rolled forward only a short distance and came to rest near the bottom of First Street. The first and second plaintiffs had both been struck by ricocheting or direct rounds; no firearm or other weapon was ever found in or around the vehicle. The third plaintiff and the runner were arrested but soon released.

THE ISSUES

The single issue for determination was liability—specifically, whether the defendant could escape delictual responsibility by proving that the discharge of firearms was lawful under section 49(2). This required demonstration that a lawful arrest was in progress, that the suspects resisted or fled, that no lesser force would suffice, and that deadly force was objectively reasonable and proportionate. If any element failed, the State would be liable.

ANALYSIS

The court began by analysing the statutory text of section 49(2) alongside constitutional imperatives safeguarding life, dignity and bodily integrity. It reiterated that shooting at a suspect is permissible only under “very limited circumstances” set out in Walters and Govender, namely where the suspect poses an immediate threat of serious violence or is reasonably suspected of previously inflicting serious bodily harm and cannot otherwise be apprehended.

Turning to the evidence, the judge found the plaintiffs' version straightforward, internally consistent and corroborated by objective features such as the absence of weapons and the short travelling distance. By contrast, the officers’ accounts contained mutually destructive contradictions: whether vehicle windows were open or closed; how much time elapsed between shots; how far the Micra had travelled; whether the officers walked or were driven to the stationary vehicle; and why no mention of the alleged pointing gesture appeared in the plea or contemporaneous statements.

Crucially, the court held that the officers never possessed reasonable grounds to suspect that any crime, let alone a violent one, had been committed. Their perception of danger rested solely on a fleeting, poorly illuminated “hand movement” that may not have occurred at all. They conceded they did not know what offence, if any, was involved, and failed to consider obvious, less-intrusive alternatives, such as pursuing the one-litre Micra with their more powerful patrol SUV, summoning back-up, or blocking the road.

Given these findings, the proportionality and necessity requirements collapsed. The shots, even if aimed at tyres, constituted deadly force because ricochet or mis-aim could (and in fact did) injure innocent passengers. The attempt to characterise the conduct as “retaliation” betrayed a mindset of vengeance rather than lawful arrest. Applying precedents such as April, the court concluded the defence under section 49(2) was unsustainable.

REMEDY

Having found the shooting unlawful, the court declared the Minister of Police liable for all damages to be proven by the plaintiffs. Quantum stood over for later determination. The defendant was ordered to pay the plaintiffs’ costs on the High Court scale, including counsel’s fees.

LEGAL PRINCIPLES

The judgment re-affirms that an arrestor who relies on section 49(2) bears the onus to prove each statutory prerequisite on a balance of probabilities. The inquiry is objective: beliefs must be reasonable, force must be strictly necessary, and proportionality is assessed against the seriousness of the suspected offence and the immediacy of any threat.

It further stresses that shooting to effect arrest is an extreme measure. Even a perceived threat must be clearly articulated and corroborated, not inferred from ambiguous gestures in poor light. Where the State cannot demonstrate genuine efforts to pursue arrest by less harmful means, or where the evidence reveals speculative suspicion, the use of firearms will be branded unlawful, and vicarious liability will follow.

Finally, the case illustrates that inconsistencies, omissions and reconstructions in police testimony will be scrutinised rigorously, especially when weighed against constitutional norms that value human life above expedient law-enforcement tactics.