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[2017] ZAWCHC 33
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Mandhlaami v Minister of Police (7279/2013) [2017] ZAWCHC 33 (29 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 7279/2013
In
the matter between:
PASSMORE
MANDHLAAMI
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
DELIVERED ON 29 MARCH 2017
GAMBLE,
J:
INTRODUCTION
[1]
The Hex River Valley is known far and wide
for its picturesque beauty -there is hardly a calendar or tourist
guide promoting South
Africa that does not feature a photograph of
this idyllic rural landscape. The area is known for its fruit
production, particularly
its export grape farms, which traditionally
employ numbers of seasonal workers to tend the vineyards in
preparation for, and during,
the annual harvest.
[2]
The plaintiff, Mr. Passmore Mandhlaami, is
a Zimbabwean national who headed south in 2011 in search of a better
life. During 2012
he was employed as a seasonal worker on a fruit
farm in the Elgin district and in the spring of that year, on the
advice of a friend,
he moved to the Hex River Valley where he took up
employment on a farm known as
Goedehoop
where he worked under the supervision of Mr. Dawid Louw, the farm
manager. The plaintiff lived in a backyard dwelling in the township
of De Doorns East adjacent to the village of that name, and commuted
to his place of employment on a daily basis utilising transport
provided by his employer.
[3]
Early in November 2012 there was a
concerted period of strike action amongst farm workers in the Hex
River Valley. The apparent
peace and tranquility which customarily
pervades the area was shattered when the strike turned ugly: there
was widespread violence
and destruction of property which
necessitated the intervention of the police over a number of days.
Early in the evening of 7
November 2012 the plaintiff sustained a
gunshot injury to his left eye and as a consequence thereof the eye
was surgically eviscerated
and replaced with a prosthesis. It is
common cause that the plaintiff’s injury was caused by a rubber
bullet fired by a member
of the South African Police Services
(“SAPS”). In the result, the plaintiff claims damages
from the defendant as a
consequence of the injuries sustained on that
day.
[4]
At the commencement of proceedings the
court was informed that the parties sought only a determination on
the merits and that all
issues relating to quantum would stand over
for later determination. During the hearing the plaintiff was
represented by Adv W.S.Coughlan
and the defendant by Advs P.A.Botha
and N.Mayosi. The court is indebted to counsel for their detailed
heads of argument which have
assisted in the preparation of this
judgment.
SETTING
THE SCENE
[5]
Before
detailing the events which led up to the shooting of the plaintiff,
some geographical and historical detail is necessary.
The Hex River
Valley (for the sake of convenience “the Valley”) lies
adjacent to, and mostly to the north of, the N1
highway which
connects the Western Cape with the hinterland. It is hemmed in on all
sides by towering mountain ranges and is traversed
by the Hex River.
Generally speaking, it may be said that the Valley lies in a
terrestrial plain from West to East. Beyond the
Western entrance to
the Valley lies the town of Worcester and at the eastern end lies the
town of De Doorns
[1]
.
Beyond De Doorns the N1 snakes its way up a steep mountain pass which
transports all manner of road traffic through to the Karoo
and
beyond.
[6]
Along
the floor of the Valley lie various farming communities at places
such as De Wet, Sandhills and Orchard where, in addition
to farms,
there are schools, shops, wineries and local residential areas. As
the N1 bypasses De Doorns, the town lies to the north
of the highway.
To the south of the N1 at that point is a large informal settlement
known as “
Stofland”
[2]
.
Many of the seasonal workers employed in the Valley reside in
Stofland and make their way to the village and the farms beyond,
crossing the N1 by way of a vehicle overpass.
[7]
Adjacent to the Hex River is the main
railway line which connects Cape Town with Johannesburg. It permits
the conveyance of goods
and passengers, a small number of who may be
fortunate to travel on the iconic luxury Blue Train which travels
between those cities.
Trains leaving De Doorns for the North are
bound to traverse a series of long tunnels, eventually emerging on
the expansive plains
of the Great Karoo beyond the Hex River Pass.
The incident in which the plaintiff was injured occurred in the
proximity of that
railway line, close to the local station and one
such tunnel.
[8]
The 2012 farm workers’ strike was a
much publicised event in the local print and electronic media, as
well as on television.
It was remembered by many because it was the
first of its kind in that area, and because it was particularly
violent and destructive.
Indeed, one of the police officers who
testified on behalf of the defendant, a warrant officer with more
than 20 years’ experience
in public order policing, told the
court that the reason he so clearly remembered the events about which
he testified was because
this was one of the most violent strikes he
had ever policed. Photographic and video evidence placed before the
court demonstrated
how buildings had been burnt or vandalised, how
vineyards had been set alight and public property had been damaged.
The level of
anger and belligerence amongst the protesting strikers
is also apparent from that evidence.
[9]
One of the most alarming acts of vandalism
viewed by the court was a trench which had been dug across the road
surface of the N1
highway in the immediate vicinity of the bridge at
Stofland. As a consequence, the highway was closed for a number of
days and
vehicles travelling to the North were required to leave the
highway to the west of De Doorns and travel along a local route
through
the centre of the village. Not only did this cause traffic
congestion, but it rendered such vehicles liable to specific attacks
along a narrowed stretch of road. Video footage also demonstrated how
the railway line to the North was compromised and rail traffic
brought to a standstill.
[10]
In short, the events of early November 2012
in the Valley effectively isolated large parts of the Western Cape
from the rest of
the country. Access to the interior of the country
could only be achieved through circuitous routes, whether by road or
rail, with
delays and concomitant cost excesses on all fronts. It was
understandable, therefore, that a large contingent of police officers
attached to the Public Order Policing Unit (“POP”), the
K9 Unit from Worcester and surrounds, and the local police
stations
hastened to the area in an attempt to restore calm, protect property
and to allow normal road and rail traffic to eventually
resume.
THE
EVENTS OF WEDNESDAY 7 NOVEMBER 2012
[11]
Much of what occurred during the time when
the plaintiff sustained his injury, as well as events which preceded
this episode on
that day were captured on video by a police video
team. The video footage was placed before the court by agreement and
subsequently
the defendant handed up a narrative/description of that
video material. The original video footage contains audio content as
well
as contemporaneous commentary from the videographer and it is
therefore not necessary to go into the footage in any great detail:
it is a matter of evidence on record.
[12]
The police evidence was to the effect that
earlier in the day a large gathering of striking workers and other
interested parties
took place at a sports ground in De Doorns East
which is located roughly between the railway line and Stofland. When
the meeting
dispersed, a crowd of people moved in a northerly
direction through De Doorns East towards the railway line, while
others took
to the N1 highway. The evidence of the local police
chief, Lt Col Kriel, was to the effect that the railway line
effectively divides
the commercial centre of De Doorns from the
residential areas to the south. He testified that there had been
attacks the previous
day on certain shops in the commercial centre
and the police feared that this might occur again on the Wednesday.
Not only were
the police concerned about arson and the looting of
such businesses, but there was a real threat that the only road
capable of
carrying traffic through the village to the North might be
blockaded.
[13]
Reinforcements were called in from areas to
the west (Sandhills and Orchard) and at around 18h30 two bulky police
armoured troop
carriers (known as “
Nyala’s”)
were on the scene at the southern end of Station Street, close to the
railway line. Also present were several marked 4x4 police
vans
attached to the K9 (or Dog) Unit from Worcester and ordinary patrol
vans from the local police station. Close to that point
in Station
Street there is a steel footbridge over the railway line which
affords pedestrian access from De Doorns East to Station
Street and
the businesses beyond. Due to the absence of adequate fencing along
the railway line itself, pedestrian access to Station
Street could
also be obtained by crossing the railway line in the direction of the
commercial area. In the immediate vicinity of
the footbridge, on
Station Street, there was the “
Matroosberg
Liquor Store
” as well as some
private dwellings.
[14]
In the video footage of events on and
around the pedestrian bridge (commencing at approximately 18h40 on
Wednesday 7 November 2012),
one sees a number of police vehicles
arriving with the customary haste and enthusiasm and the immediate
deployment of armed policemen
clad in riot gear and protective
clothing. Their arrival is immediately greeted by a hail of stones
thrown mostly by young men
then on the northern side of the railway
line in the vicinity of the stairs to the footbridge. The police then
take up a position
in an open space to the left of the footbridge (as
one views the scene) and on the northern (or village) side of the
railway line,
in an attempt, mainly, to prevent any interference with
pedestrian traffic over the footbridge. On the other side of the
railway
line one sees a large crowd of unruly protesters advancing
and throwing stones and similar objects across the railway line in
the
general direction of the police. On the audio content of the
video one can regularly hear the “
ping
”
of stones striking the metal of the footbridge and the railway
tracks.
[15]
As the protesters advance some of the armed
police officers move towards the railway line and ascend the
footbridge, while others
move down a slight embankment and cross over
the tracks. In the process the police discharge their shotguns in the
general direction
of the crowd. On the southern side of the railway
line, where the protesters are gathered, one sees in the distance
houses to the
right (the west) of a sizeable open space, which for
the sake of convenience I shall call “the public space”.
A few
blue gum trees are scattered around that public space.
Approximately 50 m or so to the south of the railway line, there is
an electrical
substation, located on the public space and enclosed
with barbed wire.
[16]
The evidence of the police was that, in
addition to keeping the footbridge open for pedestrians, they were
concerned about the protesters
causing damage to the substation and
so they sought to protect it from attack. To the left of the
substation, and beyond it, the
police witnesses pointed out a crèche
and said they were concerned that it too might be attacked and
vandalised. The crèche
fronts onto Malva Street which lies on
the southern perimeter of the public space.
[17]
The video footage recorded in the vicinity
of the footbridge covers a period of about an hour and from time to
time the videographer
changes position but always remains on the
northern side of the railway line. The images clearly depict waves of
protesters advancing
towards the railway line, throwing stones (and
later some petrol bombs) and then retreating as the police discharge
their shotguns
in the general direction of the protesters and the
public space. There is an ebb and flow of activity as the protesters
advance
and retreat in response to the advance and retreat of the
police towards them. All the while, stones and other objects are seen
to be thrown in the direction of the police and can be heard striking
the metal objects, as referred to earlier.
[18]
Several of the police officers who were
deployed in the vicinity of the footbridge gave evidence in support
of the activities which
can be seen on the video. I do not deem it
necessary to repeat their evidence verbatim since there was no
particular issue drawn
from the side of the plaintiff in regard
thereto. I shall touch on limited aspects thereof later.
THE
PLAINTIFF’S EVIDENCE
[19]
The plaintiff told the court that he was
not a member of any trade union and appeared to wish to distance
himself from the cause
of the strikers. He explained that he
customarily went to work using transport provided by his employer
which collected him and
his fellow workers in the village. During the
strike, said the plaintiff, arrangements were made for the
farmworkers on
Goedehoop
to be collected outside the local police station to ensure their
safety. The plaintiff said that he did not go to work on the first
day of the strike as there were people cruising around the township
in a car warning workers through a loudhailer that people should
refrain from going to work or face the consequences if they did so.
That was on Thursday 1 November 2012.
[20]
The plaintiff testified that he did not go
to work on Monday 5 November 2012 either: the strike was on-going and
his landlady had
cautioned him against doing so. The plaintiff went
on to say that on that Monday he received a call from Mr. Louw
telling him that
if he did not attend work the following day he would
lose his job. Accordingly, he said, he woke up early on the Tuesday
morning
(at around 04h00) and went off to the police station to avail
himself of the farm transport. The plaintiff said he worked a full
day on Tuesday, 6 November 2012 and returned home at around 17h00. On
his way home he claimed to have been accosted by 2 men who
enquired
of him whether he was on his way back from work. When the plaintiff
told them that he had not worked that day they threatened
him with
harm in the event that they found out that he had done so.
[21]
Turning to Wednesday, 7 November 2012, the
plaintiff said that he did not go to work on that day. He testified
that later in the
day he had received a phone call from Mr. Louw
enquiring why he had not been at the police station to meet the farm
transport.
He said that he told his employer that he had been
threatened the previous afternoon on his way home from work, thereby
intimating
that he feared for his personal safety. The plaintiff
testified that he spent most of the Wednesday in and around his home.
[22]
The plaintiff testified that sometime
between 17h00 and 17h30 on the Wednesday afternoon a friend,
Alexander Tom, came to visit
him. The 2 men ambled up to the police
station (for reasons which were not at all clear to the court) and
were required to cross
the footbridge on the way. This they were able
to do without incident sometime to between 17h30 and 18h30. Indeed,
the plaintiff
said that there were no police vehicles present when he
and Tom crossed the bridge.
[23]
After leaving his friend at the police
station, the plaintiff said he returned home via the same route. When
he got to the footbridge
he noticed a number of police officers and
vehicles in the vicinity. He said he was cautioned by the police not
to use the footbridge
as it was dangerous to do so and a safe route
across the tracks was pointed out to him. The plaintiff said he then
walked parallel
to the railway line (in an easterly direction)
towards the railway tunnel which is on the outskirts of the town. He
said that he
then crossed the railway line in the vicinity of the
tunnel and walked across a patch of open veld before coming to Malva
Street
where he turned right in the general direction of the crèche.
That route would, perforce, have taken him back in the direction
of
the public space.
[24]
The plaintiff testified that just before he
reached the crèche he heard the sound of gunshots coming from
the direction of
the footbridge. When he got to the corner of the
crèche building (which was adjacent to the public space), the
plaintiff
said he emerged from behind the building and looked in the
direction of the footbridge to see what was going on. While doing so
he saw a group of angry protesters standing around shouting and
toi-toiing. At that very moment he felt pain in his left eye. He
brought his hand up to his face and when he cradled his left eye
blood and a rubber bullet fell into his hand. He immediately realised
that he had been shot.
[25]
The plaintiff ran home and eventually
received emergency medical attention at a local clinic. He was
thereafter transported to Worcester
and later Tygerberg Hospital in
Cape Town where surgery was performed and the damaged eye removed.
The plaintiff said he returned
home on 15 November 2012 wearing an
eye patch. He said he encountered Mr. Louw and explained to him what
had happened.
[26]
Under cross-examination it was pointed out
the plaintiff that the route that he followed after crossing the
railway line and turning
right into Malva Street was unnecessarily
circuitous. He was asked why he did not cross over the road and walk
home through an
informal settlement on the southern side of Malva
Street known locally as “
Hasie
Square
”. In reply the plaintiff
said that, although he had not lived in the area very long, in that
time he had come to hear that
Hasie Square was dangerous and
crime-ridden, hence his decision to take a longer route home where
there were streetlights.
[27]
The cross examination of the plaintiff in regard to the events both
before and after he crossed the railway line was detailed
and fairly
technical. Mr. Coughlan readily conceded that the plaintiff’s
evidence was not without blemishes and I agree with
that comment. But
it must be borne in mind that the plaintiff was a stranger in a
foreign environment, that the situation was volatile
and mobile and
that as dusk drew closer visibility became compromised. In the
circumstances, whether there was one Nyala or two,
where precisely
the police were standing and who was firing what in which direction
is precisely the sort of inconsistency which
one would expect from a
lay witness when his evidence is measured up against a seasoned
police officer who has had been able to
refresh his memory from a
video-clip.
THE
POLICE EVIDENCE
[28]
Besides adducing the evidence of certain of
the police officers who were on duty at the footbridge that day, the
defendant presented
the evidence of Mr. Louw. The latter testified
that he was appointed to the position of farm manager at
Goedehoop
Farm
in December 2001. He was
subpoenaed
duces tecum
by
the defendant and duly produced the farm’s payroll for the
period relevant to this matter. According to this record, said
Mr.
Louw, the last time the plaintiff was paid was 24 October 2012 when
he was remunerated for 8 days’ work. Mr. Louw further
testified
that during the period 1 to 15 November 2012 no seasonal worker,
including the plaintiff, was at work on the farm. He
recalled seeing
the plaintiff when he returned from hospital on 15 November 2012
wearing an eye patch and testified that he took
a photograph of the
plaintiff’s injured eye.
[29]
The police officers called to testify on
behalf of the defendant were the local station commander, Lt. Col
Kriel, W/O Isaacs of
Paarl POP, W/O West of Paarl POP, W/O Bothma of
the K9 Unit in Worcester, W/O Louw of the De Doorns Detective Branch
and W/O Dicks,
a ballistics expert who testified as to the possible
causes of the plaintiff’s injury. Kriel was called, inter alia,
in attempt
to refute the suggestion that Hasie Square was a dangerous
place, while Louw testified about a statement taken from the
plaintiff
in December 2012. Isaacs, West and Bothma all testified
about the events of the day in general, and the shooting at the
footbridge
in particular.
[30]
West testified that he was the second in
command of the POP unit on duty at the footbridge that early evening
and identified himself
on the video fairly easily because he is a
left-handed shot. He had no difficulty singling himself out amongst
the various other
right-handed police officers who were discharging
their firearms in the vicinity of the footbridge that day. West
testified that
he had been issued with a particular calibre of rubber
bullet and demonstrated to the court the size of the round in
question.
It is best described as a hard rubber ball about the size
of a small marble – about 10mm in diameter.
[31]
While viewing the video, West was able to
point to the electricity substation and his proximity thereto after
he had crossed the
railway line and moved up the slight embankment on
the southern side of the track. He said he took up a position
alongside the
wire enclosure at the substation and sporadically fired
rounds in the direction of the crowd which had then retreated into
Malva
Street. On the video West can be seen firing shots to his left
while standing at the fence and it is possible that one or more of
these rounds may have travelled in a trajectory towards the crèche
where the plaintiff says he was standing.
[32]
West told the court that he believed that a
group of the protesters was attempting to set fire to the substation
with petrol bombs
while shielding themselves behind a rubbish tip
which they were rolling across the open space in the direction of the
substation.
West testified that because the POP unit commander (W/O
Muller) remained in the Nyala that day, he (West) was in charge of
the
members deployed on the ground in the vicinity of the footbridge.
It was West who gave orders as to when to fire and when to cease
fire. He testified that his instructions that day were for the police
to open fire only when they were being attacked with stones
and
similar objects, and to cease fire when there was no such activity on
the part of the protesters. The conduct of the police
officers
deployed in the vicinity of the footbridge that day (as seen on the
video recording) accords with those instructions.
[33]
In reviewing the video material one is
struck by the relative patience and reticence on the part of the
police, who were severely
provoked and constantly being pelted with
stones, to open fire. On many occasions the police sought shelter
under the footbridge
or behind the Nyala’s. As described above,
there was an ebb and flow as the parties engaged with each other back
and forth.
So, when under attack the police would advance towards the
protesters, cross the railway line if necessary, discharge their
firearms,
repulse the protesters and retreat back to their original
positions. One does not see an indiscriminate and persistent
discharge
of firearms in an attempt to mow down the protesters.
[34]
Ultimately, the video footage shows that
after about 40 minutes of persistent pelting of the police, the crowd
was driven back across
the public space to Malva Street, where they
congregated
en masse.
In
the result, it was the measured resistance of the police which
restored relative calm to the area around the railway line, the
footbridge and the electrical substation.
[35]
W/O Dicks took measurements on the scene
and drew up a sketch plan depicting the material points. With
reference to certain forensic
literature available to him, and in
particular with reference to the use of a pig’s head in an
experiment to test the penetrative
strength of the rubber bullet,
Dicks came to the conclusion that, depending on the elevation of the
shot-gun relevant to the horizontal,
it was possible that West could
have injured the plaintiff in the manner described by the latter when
he fired his shotgun in the
direction of the crèche while he
was standing near the electrical substation. I should also point out
that the time when
the shooting took place (around 18h50 according to
the contemporaneous commentary of the videographer) generally
coincides with
the plaintiff’s evidence as to the time when he
was injured.
[36]
In the circumstances it seems reasonable to
assume that, if the plaintiff was where he says he was, he was
injured by a rubber bullet
discharged by West. My understanding is
that counsel for both parties were comfortable with this assumption.
I should add that
there was no attack on the integrity or reliability
of the police witnesses by Mr. Coughlan – correctly so because
they testified
largely in accordance with what one witnesses on the
video. I am accordingly satisfied that the police evidence was
reliable and
truthful.
THE
VERACITY OF THE PLAINTIFF’S VERSION
[37]
The plaintiff’s evidence regarding
his work attendance during the period of the strike is hard to
believe, given that it is
conclusively refuted by the records
produced by Mr. Louw. Ms. Mayosi, who delivered the closing argument
on behalf of the defendant,
was critical of the plaintiff’s
evidence, describing him as insincere and untruthful. She suggested
that the plaintiff’s
version went far beyond just simple
mistakes and was rather a detailed fabrication involving non-existent
conversations with non-existent
third parties. The only reasonable
inference in such circumstances, she argued, was that the plaintiff
was part of the group of
protesters and had been injured while acting
in concert with them.
[38]
In
support of her argument, counsel dealt with a number of cases
involving the cautionary approach to be adopted in the assessment
of
single witnesses. The problem with that argument is that the cases
referred to are all criminal matters in which the burden
of proof is
higher. In addition, there is a specific statutory provision in the
Criminal Procedure Act, 41 of 1977
[3]
which permits a conviction to follow in such circumstances. I do not
understand there to be any such cautionary rule in civil matters.
Moreover, our criminal courts have repeatedly warned about drawing a
line through an accused person’s entire testimony just
because
he has been dishonest on a particular aspect.
[39]
In
Mtsweni
[4]
,
for
instance, Smalberger AJA , stressed that false evidence did not
necessarily always warrant the ultimate inference. He observed
that
in evaluating false evidence on the part of an the accused person
consideration should be given to a number of factors including
the
nature and extent of materiality of the lies, the age, cultural and
social background and the level of education of the person
concerned,
as also the fact that deposing to an untruth might seem more
acceptable in the circumstances that telling the truth.
[40]
In
Goodrich
[5]
,
an action for divorce, the erstwhile Appellate Division discussed in
some detail the conclusions to be drawn from false evidence
given in
civil matters. Greenberg JA approach the matter thus –
“
The
question as to its weight is not a question of law; in each case one
has to ask oneself whether the fact that a party has sought
to
strengthen his case by perjured evidence proves or tends to prove his
belief that his case is ill-founded, and one should be
careful to
guard against the intrusion of any idea that a party should lose his
case as a penalty for his perjury. As a general
rule, I think it can
be said that a carefully prepared false statement, and
a
fortiori
, a conspiracy with
others that they should give false evidence, is more likely to be an
indication of consciousness of the badness
of the case than a lie
told on the spur of the moment. But the circumstances of each case
must be investigated. In the present
case, the fact that this false
evidence was given has not influenced my decision.”
[41]
In my view, a similar approach is warranted
in the present case. The evidence of Dicks, with specific reference
to the elevation
of the firearm, suggests that the distance between
West and the Plaintiff at the time of the injury was anything between
42 and
118m. Under cross examination Dicks accepted that the
plaintiff’s version as to where he was when he was shot was
consistent
with his measurements and calculations and assumptions as
to where West was when he discharged his shot-gun.
[42]
In my view, it is important also to have
regard to the fact that the video footage in this matter covers the
activity of the crowd
of protesters in some detail and over a
protracted period of time. When the plaintiff was struck in the eye
with the rubber bullet
it was undoubtedly painful and the reaction
which he described - to cover his eye with his hand - is only
natural. Had he been
in the front line of attack amongst the
protesters at the footbridge, and had he been struck by such a
bullet, it is fair to assume
that the plaintiff’s response
might have been picked up on the video footage. The absence of any
such footage is, of course,
not conclusive but it is consistent with
the fact the plaintiff might have been partially obscured, as he says
he was, behind the
crèche.
[43]
I have grave reservations regarding the
veracity of the plaintiff’s version in light of the evidence of
Louw but in the absence
of any direct evidence to the contrary on the
part of the defendant as to the plaintiff’s whereabouts at the
time of the
shooting, and given the defendant’s acceptance of
the fact that he was shot in the vicinity of the footbridge (for the
Minister’s
defence is based on a justification of the conduct
of the police officers at that specific locality), I am unable to
reject the
plaintiff’s evidence that he was shot while standing
in Malva Street in the vicinity of the crèche, looking in the
general direction of the police.
ONUS
OF PROOF
[44]
In
light of the admission in the plea that the plaintiff was struck by a
rubber bullet discharged by an employee of SAPS, the defendant
drew
the onus to justify the shooting
[6]
.
The defendant raised the following defences of justification in the
plea
·
Self defence;
·
Necessity;
·
Voluntary assumption of risk; and
·
Contributory negligence.
[45]
The individual grounds of defence are
raised by the defendant against the following statutory background.
THE
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1966.
[46]
S
12(1) (c) of the Constitution provides for freedom and security of
the person and the right to be free of violence whether from
a public
or private source.
[7]
[47]
S 205
of the Constitution provides generally for the establishment and
structure of the national police service and s 205(3) in
particular
requires the police service to prevent and combat crime and to
maintain public order for the protection of the inhabitants
of the
Republic
[8]
THE
SOUTH AFRICAN POLICE SERVICE ACT, 111 0F 1998
[48]
The South African Police Service Act 111 of
1998 (“the SAPS Act”) is legislation that was enacted to
provide for the
establishment, organisation, regulation and control
of the SAPS. The following provisions thereof are relevant in this
matter :
“
13
Members
(1)
Subject to the Constitution and with
due regard to the fundamental rights of every person, a member [of
the SAPS] may exercise such
powers and shall perform such duties and
functions as are by law conferred on or assigned to a police
official.
(2)
…
.
(3)
(a) A member who is obliged to
perform an official duty, shall, with due regard to his or her
powers, duties and functions perform
such duties in a manner that is
reasonable in the circumstances.
(b) Where a
member who performs an official duty is authorised by law to use
force, he or she may use only the minimum force which
is reasonable
in the circumstances.
”
[49]
S 17 of the SAPS Act provides for the
establishment of a national public order policing unit (“the
POP”) which, in terms
of ss 17(2) and (3) may be deployed
locally subject to the control of the relevant Provincial
Commissioner. The deployment of the
POP is governed by s 17(6) which
is to the following effect-
“
S 17(6)
The National Commissioner shall, upon receiving a direction under
subsection (5), deploy the national public order policing
unit or
such part thereof as may be necessary to restore public order to the
area concerned, and may from time to time if he or
she deems it
necessary, deploy additional members of the unit in the area
concerned, or, subject to subsection (7), withdraw members
of the
unit from the area concerned if their continued presence is no longer
required to restore or maintain public order in the
area concerned or
in any part thereof.”
[50]
When the POP is deployed it is required to
perform its functions in accordance with, inter alia, The Standing
Order (General) 262
on Crowd Management issued on 16 September 2004
(“SO 262”)
THE
REGULATION OF GATHERINGS ACT, 205 OF 1999
[51]
The Regulation of Gatherings Act, 205 of
1993 (the “RGA”) was enacted to regulate the holding of
public gatherings and
demonstrations at certain places. The relevant
provisions of the RGA are to be read in conjunction with SO 262 and
are intended
to regulate the use of force by the police on crowd
management during public gatherings and protests.
[52]
The RGA is new order legislation designed
to promote the rights of freedom of expression, assembly and
association guaranteed in
ss 16, 17 and 18 of the Constitution,
rights which the RGA expressly provides must be exercised “
peacefully
and with due regard to the rights of others..”,
thereby
contemplating a balancing of proportionality with the rights of
freedom and security guaranteed under s12 of the constitution.
[53]
It is instructive in that s 9 of the RGA
contains extensive provisions relating to the powers of the police in
circumstances covered
by that Act. In particular s 9(2)(b)
contemplates that if a police officer of a designated rank has
reasonable grounds to believe
that a gathering or demonstration poses
a danger to persons or property that cannot otherwise be averted,
s/he can order the crowd
to disperse; if it fails to do so, the
police may, for the purposes of dispersing the crowd, use force
“
excluding the use of weapons
likely to cause serious bodily injury or death.”
In such event, the RGA provides in s 9(2)(c) that
“
(c) The
degree of force which may so be used shall not be greater than is
necessary for dispersing the persons gathered and shall
be
proportionate to the circumstances of the case and the object to be
attained.”
SO
262
[54]
The purpose of SO 262 is to regulate crowd
management during gatherings and demonstrations in accordance with
the principles contemplated
in the Constitution and with due regard
for acceptable international standards. Para 1(3) thereof provides
that one of the duties
of the police is to promote public safety and
to adopt a pro-active role in an attempt to defuse conflict before it
escalates to
the level of violence. In terms of para 11(1) the use of
force must be avoided at all costs and police members deployed for
purposes
of the operation in question must display the highest degree
of tolerance. Para 11(1) further stipulates that the use of force and
the dispersal of crowds must be in compliance with the provisions of
ss 9(1) and (2) of the RGA.
[55]
Para 11(2) of SO 262 prescribes a list of
requirements which are to be followed by the police if the use of
force becomes unavoidable.
These include that
·
the degree of force must be proportional to
the seriousness of the situation and the threat posed in terms of
situational appropriateness;
·
the force is to be reasonable in the
circumstances;
·
minimum force must be used to accomplish
the envisaged goal; and
·
the use of force is to be discontinued once
the objective has been achieved.
[56]
SO 262 also regulates the type of weapons
and ammunition that may be used by the police during “
crowd
management operations”.
Para’s
11(4)(a) and (b) prohibit the use of “
37mm
stoppers,… and sharp ammunition including birdshot and
buckshot”,
while para 11(4)(c)
prescribes that “
the use of rubber
bullets (shotgun batons) (may only be used to disperse a crowd in
extreme circumstances, if less forceful methods
prove to be
ineffective).
[57]
Further, SO262 provides that “
(f)orce
may only be used on the command of or instruction of the….
operational commander… Members may never act individually
without receiving a command from their commander
(para 11(5)). Importantly, para 11(7) retains the position at common
law, whose “
principles of self
defence or private defence are not affected by this Order.”
WAS
THE DEPLOYMENT OF THE POP AND THE USE OF FORCE JUSTIFIED?
[58]
The defendant argues that the members of
the SAPS who were deployed in the Valley early in November 2012 were
required to use the
minimum force necessary so as to :
·
subdue and special disperse crowds;
·
maintain law and order;
·
protect life and property; and
·
identify and arrest the perpetrators of
violent conduct.
[59]
The defendant argues further that the
conduct of the SAPS officers during the strike was justified if
regard be had, inter alia,
to the evidence of Kriel, regarding the
following events which were recorded by the police’s Joint
Operational Command Centre,
set up for that purpose:
59.1 On 5 November
2012 a group of more than 1000 people had invaded the N1 highway in
the vicinity of Stofland rendering vehicle
traffic impassable.
59.2 Thereafter, on
the same day, the group moved westwards along the N1 in the general
direction of Orchard and Sandhills and,
in the process, orchards,
vineyards and shops belonging to foreign nationals were burnt and
looted.
59.3 On 6 November
2012 the SAPS recorded further incidents of violence in the Valley
including,
·
At “
Elim
Farm”
where security guards
opened fire on people unlawfully protesting on farm property;
·
Innocent bystanders who were being
intimidated by striking workers at “
De
Hoop Farm”
near Hex River;
·
A crowd of approximately 300 people who had
burned tyres on the road in front of the”
JJ
Supermarket”
in De Doorns;
·
A fire at “
Monte
Vista Farm”
;
·
An attack on a shop in Hennie Street, De
Doorns.
[60]
On 7 November 2012, the following further
incidents of violence were reported :
·
The Sandhills community had blocked the N1
with tyres and stones;
·
Large groups of people were marching along
the N1 in the direction of De Doorns;
·
“
Hexview Farm”
in
Sandhills was set alight;
·
The N1 highway was dug up near the Stofland
bridge
·
Vineyards at “
Modderdrift
Farm”
were set alight.
[61]
As already stated, many of these incidents (and others not listed)
appear on the video footage and are also graphically depicted
in a
set of 84 colour photographs placed before the court by agreement.
These photographs show -
·
Large crowds of people congregating at
various places in the district;
·
The police being stoned by such crowds;
·
Vehicles burning;
·
The N1 highway damaged by burning tyres in
places and elsewhere strewn with rocks and stones, to the extent that
it appeared to
be impassable;
·
Damage to private and public property.
[62]
As indicated earlier, the video material placed before the court also
demonstrates events as they unfolded in the vicinity
of the
footbridge over the railway line. As already stated, the crowd was
belligerent, unruly and acting in concert. Many of the
demonstrators
were hostile towards the police, pelting them with stones and bricks.
There can be little doubt too that the police
were justified in
fearing damage to property in the commercial centre of the town, the
occupation of public thoroughfares and roads
and the isolation of the
railway service through the town. In short, the situation by its very
nature demanded the deployment of
the POP.
[63]
I did not understand Mr. Coughlan to take issue with the fact that
the POP unit was properly deployed at the footbridge that
evening.
Rather, counsel sought to suggest that there were other methods of
crowd control available to the police which would have
rendered the
use of rubber bullets excessive in the circumstances. So, it was
suggested, firstly, that the police should have deployed
barbed wire
near the railway tracks to prevent the crowd from reaching town or
ascending the footbridge. The police answer to that
suggestion was
that barbed wire is customarily used to block a narrow space so
as to contain (or box-in) a crowd. It was
said that the use of barbed
wire across a wide front such as that being controlled by the police
on the day in question would have
been impractical given that the
sections of barbed wire which are deployed are relatively short and
would not have covered so wide
an area. Further, it was said that the
barbed wire is transported on a trailer from which it is unfurled,
and has to be specifically
ordered in advance.
[64]
It was further suggested that use should have been made of a water
cannon. The police witnesses explained that there are only
2 water
cannon vehicles available in the Western Cape and that one of them
was out of service at the time. The available water
cannon was in
Cape town (a fair distance away – probably about 2 hours by
car) and it would have taken too long to bring
the bulky machine
through given that it is driven at the speed of a truck. Simply put,
the water cannon were not readily available
to the POP at that stage.
In any event, West testified that use of the water cannon would not
have been practicable given the presence
of overhead power lines in
the vicinity of the railway tracks and the risk of electrocution.
[65]
Mr. Coughlan asked the defendant’s witnesses why teargas had
not been used by the police that evening. It was pointed
out by W/O
Isaacs and West that teargas canisters had been fired at an earlier
stage but that due to the prevailing wind these
were not effective in
bringing the crowd under control. Indeed, the wind was both audible
and visible on the videotape and the
smoke discharged by the rifles
when rubber bullets were fired can be seen drifting away on the wind
fairly quickly. Furthermore,
the direction of the wind was such that
the police would have been firing up-wind and so the effectiveness of
the teargas would
not only have been neutralised but it may well have
been blown back in the direction of the police.
[66]
As far as stun grenades were concerned, the police appear to have
made use thereof at an early stage of proceedings but, as
Isaacs and
West also pointed out, the effect of such grenades is no more than to
cause a loud noise - other than affecting the
auditory senses of a
demonstrator, the stun grenade has little effect by way of physical
discomfort and the discharge of such grenades
did not serve to
disperse the crowd on that day.
[67]
In the circumstances, the police argue that their only option in the
circumstances was to resort to firing rubber bullets.
These were said
to be extreme circumstances where less forceful options had proved
(or were considered) to be ineffective.
[68]
Having considered the testimony of the witnesses and having viewed
the video and photographic material, I agree with counsel
for the
defendant that the use of rubber bullets in response to the violent
crowd behavior at the footbridge was justified in the
circumstances.
That, however, is not the end of the enquiry. It is for the defendant
to prove that the conduct of the police was
lawful and therefore
justifiable. It does so by setting up the defences listed in para 44
above, and by showing that it has complied
with s13(3)(b) of the SAPS
Act and the relevant standing orders in employing the minimum degree
of force in the circumstances.
SELF
DEFENCE
[69]
The pleaded defence of self defence was not vigorously pursued in
argument by Ms. Mayosi. In my view this was the prudent approach.
It
could not be suggested in the circumstances that prevailed that armed
police officers clad in protective riot gear (including
helmets) were
confronted with such immediate danger that the only option open to
them was to discharge rubber bullets at the attackers.
It was, for
instance, open to the police to turn on their heels and leave the
area, thereby reducing the level of personal risk
immediately. In
fact, as I have said, the video footage shows them retreating behind
the police vehicles and under the footbridge.
[70]
In
Mugwena
[9]
Ponnan JA postulated the approach to such a defence as follows:
“
Homicide
in self-defence is justified if the person concerned
‘…
had
been unlawfully attacked and had reasonable grounds for thinking that
he was in danger of death or serious injury, that the
means he used
were not excessive in relation to the danger, and that the means used
were the only or least dangerous whereby he
could have avoided the
danger.’(
R v Attwood
1946 AD 331
at 340
)
The test is an objective one. The
question to be answered is whether a reasonable person in the
position of Constable Matumba would
have considered that there was a
real risk that death or serious injury was imminent.”
Objectively
speaking, there was no such danger to West
et al,
nor did any
of the police officers make any such claims in their evidence.
Accordingly, I am satisfied that the defence of self
defence has not
been established by the defendant in the circumstances
NECESSITY
[71]
In order to constitute a lawful defence, necessity must involve a
threat to some legal interest, for instance, a threat to
life or
limb, or a threat of damage to property. The approach was usefully
summarised by Kriek J in
Chetty
[10]
,
a
case in which the plaintiff had been bitten by a police dog while the
police were endeavouring to control an unruly crowd of people
outside
a furniture shop at which a sale was being held.
“
In the
present context I consider that the Police can only escape liability
for harm caused by them if the following requirements
are satisfied:
1.
There must have been reasonable
grounds for thinking that, because of the crowd’s behavior,
there was such a danger (commenced
or imminent) of injury to persons
or damage to or destruction of property as to require Police action.
Whether or not such a situation
existed must be considered
objectively, the question being whether a reasonable man in the
position of the Police would have believed
that there was such a
danger. It has been said that this is the approach in relation to the
requirements of the defence of necessity….
2.
The means used in an endeavour to
restore order and avert such danger, and resulting in one or more
members of the crowd being injured,
were not excessive having regard
to all the circumstances, such as the nature and the extent of the
danger, the likelihood of serious
injury to persons, the value of the
property threatened, etc.”
[72]
The learned judge went on to refer to the cautionary remarks of Van
Winsen AJ (as he then was) in
Ntanjana
[11]
–
“
The very
objectivity of the test, however, demands that when the Court comes
to decide whether there was a necessity to act in self-defence
it
must place itself in the position of the person claiming to have
acted in self-defence and consider all the surrounding factors
operating on his mind at the time he acted. The Court must be careful
to avoid the role of the armchair critic, wise after the
event,
weighing the matter in the secluded security of the courtroom…
[73]
The
dictum
of Van Winsen AJ has particular relevance in the
present case because it was argued before him that the applicable
Standing Orders
relevant to the situation at hand placed a higher
standard of duty on the police than would otherwise have been
expected. The court
rejected that notion and commented as follows at
410C:
“
After a
perusal of these Standing Orders I cannot agree that this contention
is well founded. Even if it were, that cannot affect
the common law
liability of the police which is what the Court is here called upon
to consider. While it may well be that a man
imbued with a higher
than normal sense of responsibility in the execution of his duty as a
policeman might very well have been
prepared to take the personal
risk of grappling with the deceased and thereby save the deceased’s
life, Constable Vorster
cannot in law be held responsible for failing
to disclose such a sense of responsibility. The law requires of the
police no higher
and no less a standard of duty than is required of
any member of the public placed in a similar situation, viz. that
standard to
which the ordinary and reasonable man in the street is
required to conform.”
[74]
Ms. Mayosi also relied in argument on the decision in
Petersen
[12]
,
a case in which the police were attacked and stoned by an angry crowd
which had gathered while they were arresting people for
the illegal
possession of abalone. In the process the police had initially fired
rubber bullets from their shotguns (to no avail)
and then resorted to
the use of sharp point ammunition (aiming at the ground) when they
ran out of rubber bullets. In the process
a young man called Justin
Petersen was injured and his mother sought damages from the police in
the local magistrates’ court.
[75]
On appeal to the Supreme Court of Appeal, Brand JA approach the
matter thus:
“
[11] Can
it be said that in these circumstances the police action which caused
Justin’s injuries does not attract liability
because it was
justified in circumstances of necessity? Unlike self-defence - also
referred to as private defence - the defence
of necessity does not
require that the defendant’s action must be directed at a
wrongful attacker. There was therefore no
need for the respondent to
establish that Justin was himself part of the attacking crowd. What
the respondent had to prove in order
to establish the justification
defence of necessity appears, for example, in broad outline, from the
following statements in
‘
Delict
’
volume 8(1) LAWSA (2ed) by JR Midgley and JC van der Walt, paragraph
87:
‘
An
act of necessity can be described as lawful conduct directed against
an innocent person for the purpose of protecting an interest
of the
actor or a 3
rd
party… against a dangerous situation…
Whether
a situation of necessity existed is a factual question which must be
determined objectively…
A
person may inflict harm in a situation of necessity only if the
danger existed, or was imminent, and he or she has no other
reasonable
means of averting the danger…
The
means used and measures taken to avert the danger of harm must not
have been excessive, having regard to all the circumstances
of the
case…’ ”
[76]
In light of the situation which existed on that day in the Valley
generally, in and around De Doorns in particular and at the
footbridge specifically, I am of the view that the police were
lawfully discharging their statutory duties under s 207(3) of the
Constitution and the SAPS Act to maintain public order and secure the
safety of the inhabitants of the area and their property,
when they
took control of the volatile and dangerous situation in the vicinity
of the footbridge and the electric substation. The
question that then
follows is whether they adhered to the recognized common law
principles in general, and to the requirements
of SO 262 in
particular. The test in both instances is similar – objectively
viewed, was the force employed proportional
to the threat which
presented?
[77]
It is significant to note that, as one sees on the video footage, the
arrival of the police on the scene was immediately met
by a violent
response from the crowd across the railway tracks. The numbers were
stacked against the police - about a dozen or
so of them against
several hundred protesters - and the latter showed no inclination to
retreat. On the contrary, the protesters
advanced aggressively and
tauntingly towards the law enforcement officials: some even came over
the bridge to confront the police
as they were ascending it from the
northern side notwithstanding the earlier use of stun grenades and
rubber bullets in an attempt
to repel them. Having effectively
prevented the crowd from crossing the railway line and reaching the
business centre of the village,
a further danger presented. The
attempt by a part of the crowd to attack the substation is apparent
from the video footage and
that activity presented a real and
imminent threat to public safety and public property in the area.
[78]
There was, in the circumstances, no other option for the police in
their attempts to restore calm and protect property. West,
as the
senior officer on the ground, was justified in giving the order to
fire rubber bullets and he himself was entitled to take
aim at those
persons intent upon damaging the substation and to fire rubber
bullets at them so as to stop them in their tracks.
To quote from the
words of Brand JA in
Petersen
:
“
[12] In
the circumstances counsel for the appellant was unable to propose any
realistic alternative means by which the police could
avert the
danger. And I can think of none. Before firing sharp point ammunition
they had essentially tried everything else. The
question which
sometimes arises in matters of this kind, namely, whether the
defendant should rather have fled, does not even occur.
At the stage
when the police started to fire live ammunition, their attackers
simply did not allow them to flee.”
With
the necessary paraphrasing for the facts at hand, I am of the
considered view that when the police resorted to firing rubber
bullets they had tried everything else and were unable to bring the
crowd under control and restore order. And, when they did open
fire
they did so sporadically and with the requisite degree of constraint.
[79]
Mr. Coughlan submitted that the crowd posed no direct danger to the
police and when they opened fire they did not do so in
order to
defend themselves “
from a real threat of stones and petrol
bombs”.
Counsel went on to suggest that the police should
rather have taken up a defensive line at the railway tracks and that
it was likely
that the crowd would have dispersed of their own accord
when they ran out of stones, or as darkness descended. This was
described
as a realistic alternative by which the police could have
averted the danger resulting from the stone throwing.
[80]
I do not agree with counsel’s submissions. Not only are they
based on a rose-tinted viewing of the video footage, they
are
speculative and unhelpful in the circumstances, emanating as they do
from “
the secluded security of the courtroom
”. The
court was fortunate to view, first hand, the mayhem which prevailed
that evening. The circumstances included an imminent
attack on the
substation, the potential damage which could be caused to the railway
line (a crucial logistical artery to the interior
of the country) and
the prospect of further damage to businesses in the town. That state
of affairs did not permit the police to
flee the scene. To do so
would have been a complete abandonment of their constitutional and
statutory duties. Indeed, those very
duties compelled them to take up
a position which necessitated the dispersion of the crowd.
[81]
The fact that the plaintiff may have been shot shortly after he
emerged into the open at the corner of the crèche while
not
taking part (as he claimed) in the unlawful activities of the crowd,
does not mean that the police (and West in particular)
acted
unlawfully. On the basis of the authority already referred to
[13]
,
the defendant does not incur liability since West was lawfully about
the duty of protecting public property and maintaining law
and order
when he discharged his shot-gun in the direction of the crèche.
VOLUNTARY
ASSUMPTION OF RISK
[82]
In view of the fact that I have found that the defence of necessity
has been established by the defendant, it is not strictly
necessary
to deal with this additional ground of defence put up. However for
the sake of completeness I shall do so briefly.
[83]
The defence of
volenti
non fit inuiria
requires
the defendant to establish that on that evening the plaintiff had
knowledge of the risk of injury, appreciated the ambit
thereof and
consented to such risk.
[14]
It is a defence which is not easily discharged and must be applied by
the court with great circumspection and caution.
[15]
The point of departure is that no one can recover damages for an
injury “
for
which he has himself to thank”.
[16]
[84]
The test for knowledge of the risk on the part of the plaintiff is,
firstly, an objective assessment of the facts to establish
what
inherent risks existed, and
secondly,
a factual finding as to whether the plaintiff foresaw the actual risk
that later ensued and caused his injuries.
[17]
[85]
Under cross examination by Mr. Botha, the plaintiff said that he had
attended a mass meeting at the sports fields on the Friday
and that
he had accompanied the group of marchers as they move down the N1
highway. He would therefore have been aware of the presence
of
heavily armed police in the district at that stage already. The
plaintiff’s evidence was that when he approached the footbridge
on the evening in question he was warned by the police not to cross
it. He said, initially, that he thought that he had been warned
because of the possibility of being hit by stones thrown by the
demonstrators. However he later conceded that he was aware of the
fact that there were armed police and armoured vehicles in the
vicinity of the footbridge, and that there was the likelihood that
the police might open fire on the demonstrators. He also accepted,
albeit somewhat begrudgingly, that if he crossed the footbridge
he
might be injured by a rubber bullet fired by the police.
[86]
The plaintiff confirmed in cross examination that the reason he had
been directed away from the footbridge by the police was
because that
it was considered to be unsafe to be in that area. He therefore opted
to follow a safer option by crossing the railway
line in the vicinity
of the tunnel. When the plaintiff reached Malva Street he did not
take the shortcut available to him through
Hasie Square but proceeded
on down the road past the crèche. He accepted that at that
stage he was walking in the direction
of the group of protesters and
he heard gunshots coming from the direction of the footbridge which
was away to his right. He confirmed,
also, that he appreciated that
the police were probably shooting in the direction of the protesters.
All that notwithstanding,
the plaintiff continued walking along Malva
Street because, as he then suggested under cross examination, it was
getting dark and
it was not safe to be on the street.
[87]
In the prevailing circumstances I am satisfied that the plaintiff
appreciated the risk implicit in walking towards the demonstrators.
He knew the police were firing at them and he accepted the
consequences of proceeding down the road, rather than seeking shelter
in front of the crèche, where he would have been out of the
line of fire and not likely to be hurt by a bullet discharged
by
police firearm. Accordingly I am satisfied that the defendant has
established the defence of voluntary assumption of risk.
CONTRIBUTORY
NEGLIGENCE
[88]
The courts have often cautioned against confusing the concepts of
contributory negligence and voluntary assumption of risk
[18]
.
In light of the finding that the defendant has successfully
established the defence of necessity, the alternative defence of
contributory negligence falls by the wayside. But, in any
event, in the absence of any finding that the police were negligent
in the way in which they conducted themselves that evening, there is
no room for a finding that there was contributory negligence
on the
part of the plaintiff: he cannot be regarded as a joint wrongdoer in
the circumstances. In any event, no argument was presented
by Ms.
Mayosi in relation to this ground of defence, and I understood
therefore that the defendant had abandoned this line of defence.
CONCLUSION
[89]
In the result I am satisfied that the defendant has discharge the
onus of proving that the police action in which the plaintiff
was
injured on 7 November 2012 at De Doorns was lawful, that the degree
of force applied in the circumstances in defending life
and the
property of others was not excessive and that the defence of
necessity has accordingly been established. His claim for
damages can
accordingly not succeed.
ORDER
OF COURT
The
plaintiff’s claim is dismissed with costs
__________________
GAMBLE,
J
[1]
According
to Google Maps, some 32 km away.
[2]
“
Dustbowl
”
would be a fair translation.
[3]
S 208
[4]
S v Mtsweni
1985(1)
SA 590 (A) at 593I – 594E
[5]
Goodrich v Goodrich
1946
AD 390
at 396-7
[6]
Mabaso v Felix
1981
(3) SA 865
(A) at 873E – 874E
[7]
S
12.
Freedom and security of the person
(1) Everyone has the right to freedom
and security of person, which includes the right –
(c) to be free from all forms of
violence from either public or private sources.
[8]
S 205 Police service –
(3) The objects of the police service
are to prevent, combat and investigate crime, to maintain public
order, to protect and secure
the inhabitants of the Republic and
their property, and to uphold and enforce the law.
[9]
Mugwena v Minister of
Safety and Security
2006(4) SA 150 (SCA) at [22]
[10]
Chetty v Minister of Police
1976 (2) SA 450
(N) at
452F – 453A
[11]
Ntanjana v Vorster and
Minister of Justice
1950
(4) SA 398
(C) at 406A;
[12]
Petersen
v Minister of Safety and Security
[2010]
1 All SA 19
(SCA) at 23
[13]
Petersen
at [11]
[14]
Santam Insurance Co. Ltd. v
Vorster
1973 (4) SA 764
(A) at 781 B - E
[15]
LAWSA
2
nd
ed Vol 8 Part 1 at p167
et
seq.
[16]
Maartens v Pope
1992
(4) SA 883
(N) at 886 G-H
[17]
Vorster
,
ibid.
[18]
See, for example,
Vorster
at 777