Kotze v Minister of Safety and Security (36826/09) [2011] ZAGPJHC 101; 2012 (1) SACR 396 (GSJ) (25 August 2011)

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[2011] ZAGPJHC 101
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Kotze v Minister of Safety and Security (36826/09) [2011] ZAGPJHC 101; 2012 (1) SACR 396 (GSJ) (25 August 2011)

IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
REPORTABLE
Case Number : 36826/09
DATE:25/08/2011
In the matter between:
JOHANNESS STEPHANUS KOTZE
….................................................
PLAINTIFF
and
MINISTER OF SAFETY AND SECURITY
….........................................
DEFENDANT
JUDGMENT
HARTFORD A J
A
THE NATURE OF THE CLAIM
This is a delictual claim for damages brought by the Plaintiff, Mr
Johannes Stephanus Kotze, against the Minister of Safety and

Security arising out of the fact that the Plaintiff was shot by
members of the South African Police Services on 28 August 2008
at 5
Isak De Villiers Street, Meyersdal (para 4, Particulars of Claim).
The allegations in the Particulars of Claim are that the incident
was caused intentionally by the members of the South African
Police
Services (hereinafter referred to as “the Police”),
alternatively was caused entirely by the negligence of
the Police,
who were negligent in one or more of the following respects:
“
5.1 They failed to determine the identify of the Plaintiff
before firing on him;
5.2 They failed to exercise the necessary care and skill when
given the circumstances they both could and should have done so;
5.3 The failed to avoid the incident when by taking reasonable and
proper care they both could and should have done so;
5.4 They failed to give a warning shot and/or shots when they both
could and should have done so;
5.5 They failed to establish whether it was necessary to open fire
on the Plaintiff given the circumstances when they both could
and
should have done so.”
(para 5, Particulars of Claim)
In the alternative to the above, the Plaintiff claims that the
Defendant owed a legal duty and/or a duty of care to the Plaintiff

to:
“
6.1 Take all reasonable and necessary steps to prevent
injury or harm being caused to the Plaintiff;
6.2 Take all reasonable and necessary steps to avoid the
occurrence of the incident complained of, more specifically to avoid
members
of the South African Police Services to open fire (sic) on
the Plaintiff.”
(para 6, Particulars of Claim)
The Plaintiff pleaded that he was severely injured and,
inter
alia
, sustained eleven gunshot wounds as a direct consequence of
the incident and was obliged to undergo medical treatment.
I was advised that the Plaintiff’s wife, Mrs Kotze, had
brought a separate action against the Minister of Safety and

Security in a similar vein. She was a passenger in the vehicle and
was also injured and sustained six gunshot wounds in the incident.

The parties agreed that the outcome of this matter on the merits
would also apply to the claim of Mrs Kotze.
It was further agreed that the issues of liability and quantum would
be separated and an Order was granted by me separating the
issues in
terms of Rule 33(4) of the Rules of Court.
In response to the claim, the Defendant pleaded that, on 28 August
2008, at approximately 23h00 and at 5 Isak De Villiers Street,

Meyersdal, members of the South African Police Services, acting in
the course and scope of their duties with the Defendant, fired

several shots at a vehicle, the occupants of which were believed at
the time to be fleeing suspects in a reported house robbery
in
progress at the time and at the given address.
The said Police members
“acted bona fide in the
circumstances and in terms of the provisions of
section 49(1)
of the
Criminal Procedure Act, 51 of 1977
, as amended. In the premises,
the Defendant denied that the members acted negligently.”
(para 3, Defendant’s Plea)
Section 49(1)
was pleaded by the Defendant as its defence, and
although the Plaintiff pointed out that
section 49(1)
contained only
some definitions, it was made clear by the Defendant that he had
meant to rely on
section 49(2)
during the trial, and not
section
49(1).
Although the Plea was not formally amended, I accept that
the trial was conducted on the basis that
section 49(2)
was the
intended defence of the Defendant.
Section 49(1)
simply defines the meaning of
“arrestor”
and
“suspect”
.
Section 49(2)
reads as follows:
“
If any arrestor attempts to arrest a suspect and a suspect
resists the attempt, or flees, or resists the attempt and flees,
when
it is clear that an attempt to arrest him or her is being made
,
(my emphasis)
and the suspect cannot be arrested without the
use of force, the arrestor may, in order to effect the arrest, use
such force as
may be reasonably necessary and proportional in the
circumstances to overcome the resistance or to prevent the suspect
from fleeing:
provided that the arrestor is justified in terms of the
section in using deadly force that is intended or is likely to cause
death
or grievous bodily harm to a suspect, only if he or she
believes on reasonable grounds –
a) that the force is immediately necessary for the purposes of
protecting the arrestor, any person lawfully assisting the arrestor

or any other person from imminent or future death or grievous bodily
harm;
b) that there is a substantial risk that the suspect will cause
imminent or future death or grievous bodily harm if the arrest is

delayed; or
c) that the offence for which the arrest is sought is in progress
and is of a forceable and serious nature and involves the use of
life
threatening violence or a strong likelihood that it will cause
grievous bodily harm.”
In addition to the factors pleaded as its defence set out in
section
49(2)
, the Defendant admitted at the pre-trial conference that the
standing service orders and procedures current and in place at the

time of the incident were those appearing from two circulars annexed
to the further pre-trial minute.
The first circular, dated 24 May 2002, referred to the
Constitutional Court judgment of
Ex parte Minister of Safety
and Security and Others: in re S v Walters and Another
[2002] ZACC 6
;
2002
(4) SA 613
(CC) and stated that:
“
Existing standing orders which are inconsistent with this
judgment are hereby repealed to the extent that they are inconsistent
therewith.”
(para 6, p 3)
The first circular quoted extensively from this judgment as follows:
“
In order to make perfectly clear what the law regarding
this topic now is, I tabulate the main points:
a) …
b) …
c) …
d) Where arrest is called for, force may be used only where it is
necessary in order to carry out the arrest.
e) Where force is necessary, only the least degree of force
reasonably necessary to carry out the arrest may be used.
f) In deciding what degree of force is both reasonable and
necessary, all the circumstances must be taken into account,
including
the threat of violence the suspect poses to the arrestor or
others, and the nature and circumstances of the offence the suspect

is suspected of having committed; the force being proportional in all
these circumstances.
g) Shooting a suspect solely in order to carry out an arrest is
permitted in very limited circumstances only.
h) Ordinarily such shooting is not permitted unless the suspect
poses a threat of violence to the arrestor or others or is suspected

on reasonable grounds of having committed a crime involving the
infliction or threatened infliction of serious bodily harm and
there
are no other reasonable means of carrying out the arrest, whether at
that time or later.”
The first circular then quotes further from the judgment that:
“
The right – and indeed the duty – of police
officers to protect their lives and personal safety and those of
others
is clearly endorsed and in no respect diminished.”
Approximately fourteen months later, a second circular, dated 18
July 2003, was issued by the National Police Commissioner.
This
circular refers to the fact that
section 49
of the
Criminal
Procedure Act has
been amended and in a heading entitled
“Changes
brought about by the new section”
the following is stated:
“
In the interim, members must adhere to the following
guidelines:
(1) Force (such as the use of a firearm), which could result in
the death or grievous bodily harm of the person to be arrested may

only be used if the member believes on reasonable grounds –
a) that the force is immediately necessary for the purposes of
protecting the member, any person lawfully assisting the member or

any other person from imminent or future death or grievous bodily
harm;
b) that there is a substantial risk that the suspect will cause
imminent or future death or grievous bodily harm if the arrest is

delayed; or
c) that the offence for which the arrest is sought is in progress
and is of a forceable and serious nature and involves the use of
life
threatening violence or a strong likelihood that it will cause
grievous bodily harm.
(2) …
(3) If a member believes on reasonable grounds (as set out in
sub-paragraph 1 above) that the use of force (such as a firearm),
which could result in the death or grievous bodily harm of the person
to be arrested, will be necessary to effect an arrest, such
member
must,
where it is reasonable in the circumstances to do so,
issue a clear warning to the person who is to be arrested that force
will
be used against him or her unless he or she submits himself or
herself to custody. In such an event the said warning should inform

the person to be arrested that lethal force will be used (e.g. that
he or she will be shot at) unless he or she submits to the
arrest
(my emphasis)
. Furthermore, where a member reasonably
believes that it will be necessary, in order to effect the arrest, to
fire a shot at the
person to be arrested, a warning shot must precede
any shot fired at the person, unless the firing of a warning shot may
endanger
the lives of other people or could reasonably be expected to
have the result that the person will escape the arrest. This does

not apply to instances of private defence where the life of a member
or of another person is in immediate danger and immediate
action is
necessary to ward off the danger.”
Paragraph 5 of the second circular states as follows:
“
Existing standing orders which are inconsistent with the
instructions contained in the circular, are hereby repealed to the
extent
that they are inconsistent therewith.”
At the second pre-trial conference held on 13 March 2011, a number
of facts were recorded as constituting common cause facts
between
the parties. These appeared in paragraphs 4.1 to 4.19 of the second
pre-trial minute. I quote only the more important
ones herein:
“
4.1 On 28 August 2008 at approximately 22h40 the SAPS
received a telephone call from Fox Security Company that there was a
robbery
in progress at 5 Isak De Villiers Street, Meyersdal.
…
4.3 The control room operator informed the armed response
supervisor, Barnett, that the people were held (by the robbers) and
that
she could hear over the phone that they were being assaulted.
4.4 Two of the Fox Security Armed Response vehicles were first to
arrive at the address.
4.5 Shortly thereafter at least three South African Police
Reaction Unit motor vehicles also arrived at the scene but not all
together.
4.6 The motor vehicles all stopped some distance away from the
said address.
4.7 The security company and the SAPS members took up position
along the street both to the east and the west of the address itself.
4.8 A shot was fired somewhere on the premises. The parties are
in agreement that this shot was fired by one of the robbers at the

Plaintiff’s children who were then standing on the balcony in
front of the main bedroom. The approximate position that the
robber
was standing in and the approximate trajectory of the shot fired at
the children on the balcony are depicted on the site
plan included in
the Plaintiff’s bundle of exhibits.
4.9 Approximately one minute later a second shot was fired on the
premises. The parties are in agreement that the second shot was

fired by a robber, standing on the outside of the house, into a
bedroom and the shot was fired through the windowpane and through
the
bed into a door leading into the bathroom. The trajectory of this
shot is depicted on the photographs included in the bundle
of
exhibits.
4.10 The South African Police at the time did not know who had
fired the shots and at who or what. Defendant will however contend

that two further shots were also fired and will provide Plaintiff
with details of the alleged further shots for consideration by

Plaintiff.
…
4.12 Plaintiff and his wife managed to escape from the robbers and
sought to make good their escape in their Toyota Land Cruiser
motor
vehicle.
4.13 A white Toyota Land Cruiser (with Plaintiff and his wife
being the occupants) then reversed out of the gate and continued to

reverse west (that is up the street) into the street.
4.14 As the Toyota reversed into the street as aforesaid, the SAPS
opened fire on the vehicle with R5 semi-automatic rifles and 9 mm

pistols.
4.15 The vehicle reversed approximately 15 metres up the road
before stopping in the vicinity of a storm water culvert and then
proceeded to drive forward in an easterly direction down the road
past the address while the SAPS continued firing.
4.16 The vehicle eventually came to a stop around a bend
approximately 130 – 150 metres east of the address and in the
immediate
vicinity of a storm water culvert.
4.17 Plaintiff was the driver of the vehicle and his wife was
sitting in the left front passenger seat.
4.18 Plaintiff sustained some ten gunshot wounds during the
incident and his wife some six gunshot wounds.
4.19 The robbers all escaped.”
Paragraph 5 of the second pre-trial minute also stated as follows:
“
The parties are further in agreement that the Special
Service Orders then current in the South African Police at the time
of the
incident were those appearing from the circulars dated 24 May
2002, a copy of which is annexed hereto and 18 July 2003, a copy of

which is also annexed hereto.”
An inspection in loco was held at 5 Isak De Villiers Street on 14
March 2011. The minutes thereof recorded,
inter alia
,
“
11. The culvert approximately 60 m from the middle of the
gate in a westerly direction was pointed out;
…
13. The positions of where the Fox Security vehicles and the South
African Police Service vehicles had stopped were pointed out.
14. The position of where the first Fox Security vehicle had
stopped in Isak De Villiers Street was pointed out as being 70 m from

the middle of the gate and west from the Plaintiff’s residence.
15. It was pointed out that the first Fox Security vehicle had
stopped on the left of the road and was facing in an easterly
direction
i.e. down hill.
16. It was pointed out that a further Fox Security motor vehicle
had stopped some distance behind the first Fox Security motor
vehicle.
17. It was further pointed out that a police vehicle had stopped
right next to the first Fox Security motor vehicle in the road,
being
approximately 70 m from the middle of the gate.
18. It was further pointed out that a SAPS motor vehicle had
stopped behind the first Fox Security motor vehicle facing in an
easterly
direction.
19. The position of the culvert was pointed out as being
approximately 60 m from the middle of the gate.
20. The positions where Inspector Heyns had stopped his SAPS motor
vehicle and where Captain Jonck had stopped his motor vehicle
were
pointed out.
21. Inspector Heyns’ motor vehicle was facing in a westerly
direction and was stopped on the left hand side of the road, east
of
the Plaintiff’s residence, approximately 70 m from the middle
of the gate.
22. It was pointed out that Captain Jonck’s vehicle was
stopped diagonally across the road facing roughly in a south-westerly

direction and occupying about two thirds of the width of the road.
…
30. The positions of the vehicles as described above are depicted
on the sketch plan, a copy of which is annexed hereto as Annexure

“A”.”
The trial ran for approximately eleven Court days until 30 March
2011, and on the last day of the hearing, full argument was

addressed to the Court, accompanied by written Heads of Argument.
A month after the conclusion of the trial and argument, the
Defendant filed Supplementary Heads of Argument, attached to which

was a Notice of Intention to Amend his Plea dated 29 April 2011.
This introduced a new ground of defence, being a plea of

contributory negligence on the part of the Plaintiff, and a plea
that any damages should be apportioned in terms of section 1 of
the
Apportionment of Damages Act, 34 of 1956, to such an extent as the
Court deems just and equitable.
A Notice of Intention to Oppose the Amendment was filed by the
Plaintiff on 4 May 2011. In that Notice of Intention to Oppose,
the
Plaintiff did not set out the grounds on which he objected to the
amendment. For another month, nothing further transpired
and, only
after I wrote to the parties enquiring as to whether any further
steps were to be taken, were amended pages filed by
the Defendant on
7 June 2011 to reflect the plea of contributory negligence.
Thereafter, in that it was entirely unclear as to what the status of
the amended pages were, and after some correspondence from
me to the
parties, enquiring as to this, the Plaintiff agreed that the
amendment could be effected. The Plaintiff declined to
file a
replication arising out of the amendment or to apply to reopen the
hearing. The Defendant similarly advised that he did
not wish to
apply to reopen the hearing. A further month later, in July 2011,
both parties filed further Supplementary Heads
of Argument on the
issue of contributory negligence. In the latter Heads of Argument,
the Defendant sought that there should
be an apportionment of ninety
percent against the Plaintiff in favour of the Defendant.
I will deal with the issue of contributory negligence towards the
end of this Judgment.
B
THE APPLICABLE PRINCIPLES
In that the Defendant admitted that the Police had shot the
Plaintiff, the first question to be decided is whether the conduct

of the Defendant was wrongful. If it was not wrongful, that is the
end of the enquiry. If it was wrongful, the next enquiry
is whether
the Police were negligent. If the Police were negligent, the next
enquiry is whether there was contributory negligence
on the part of
the Plaintiff.
The conduct would be wrongful if it could not be brought within the
parameters of
section 49(2)
of the
Criminal Procedure Act, 51 of
1977
, as read with the standing service orders and procedures set
out in the two circulars already quoted. The onus rests on the

Defendant to establish this. An examination of the Police conduct
must thus be made to see whether it fell strictly within the

confines of
section 49(2)
and was therefore justifiable conduct and
not wrongful. (
Malahe and Others
v The Minister
of Safety and Security and Others
,
[1998] ZASCA 64
;
1999 (1) SA 528
SCA at
542G-H.)
It is therefore necessary to give a brief analysis of the
requirements of
section 49(2).
In essence, there are four aspects that should be satisfied before
the use of lethal force. First, there must be an attempt
to arrest
the suspect, and in this sense, there must first have been an
attempt to deprive the suspect of his freedom in order
to secure his
presence in Court (
Wiesner v Molomo
, 1983 (3) 151 {A}
at 158E). Secondly, there must have been resistance to the arrest
by the suspect, or the suspect must have
fled, or resisted the
arrest and fled, when it was clear to him that an attempt was being
made to arrest him. Thirdly, it must
not have been possible to
arrest the suspect without the use of force. Fourthly, once force
was used, such force could only
be used as was reasonably necessary
and proportional in the circumstances to overcome the resistance or
to prevent the suspect
from fleeing. Thereafter, three further
grounds are set out for the use of deadly force in
section 49(2).
In order to assess whether the Police acted in accordance with the
parameters of
section 49(2)
and the standing service orders and
procedures in place at the time of the incident, I must examine the
evidence and establish
the facts that occurred, having regard to all
the uncontested evidence, agreed facts (insofar as the evidence does
not clearly
show the agreed facts were wrong), the credibility of
the witnesses and the probabilities.
The evidence of the parties extended over many days. The Plaintiff,
his wife, Mrs Kotze, and his son-in-law, Mr Sinden, gave
evidence
for the Plaintiff. The Defendant called seven witnesses, being Mr
Barnett, the security officer employed by Fox Security,
and several
policemen who attended the scene, being Captain Marais, Constable
Rapetswa, Captain Simpson and Captain Jonck. He
also called Mr
Nkosi, the Police photographer and Ginene Kotze, the Plaintiff’s
daughter.
C.
ANALYSIS OF THE EVIDENCE AND THE RELEVANT FACTS
There were inconsistencies in the evidence of many of the witnesses
and I have had to sift through much of the evidence to extract
the
salient features of the incident in order to establish what factors
were relevant to the defence raised by the Defendant
in terms of
section 49(2).
I shall start with an analysis of the evidence given
by the Plaintiff’s witnesses.
The evidence of Mr Kotze
The Plaintiff testified that he had been on holiday in the Western
Cape and had left his daughter and his son, at their house
at 5 Isak
De Villiers Street, Meyersdal (hereinafter referred to as “the
premises”). He was driving back with his
wife, Mrs Kotze, in
a white Toyota Land Cruiser, VX model, and, when in Bloemfontein,
had telephoned his children to advise them
to expect them within
four hours. He arrived at the premises shortly before 11 pm and
noticed that the right-hand sliding gate
was open sufficiently for a
car to enter. He opened the double garage door to the left with his
remote and when he drove in,
he realized immediately that something
was wrong, as to his right he saw his son’s car loaded with
videos, tv’s and
hi-fi’s. Mrs Kotze telephoned Fox
Security, their armed response company, and while she was speaking,
three armed robbers
came down the stairs. She screamed
“come
quickly”
and tried to run away whilst speaking on the
phone. Certain events thereafter took place, which are not
relevant, save that
at some point the robbers fled up the stairs
leaving the Plaintiff and his wife unattended in the foyer. They
jumped up from
the floor and went to their Land Cruiser where the
keys were still in the vehicle and the garage door was, according to
the Plaintiff,
still open.
He said that the quickest route out was to reverse far from the
robbers and, as they reversed, they focused on the garage as
they
were worried about the robbers.
They reversed through the sliding gate and up into the road, in a
westerly direction and, as they got into the road, automatic

gunshots went off immediately. He testified that he could hear the
gunshots hitting the vehicle from the back and they did not
stop.
He said that the stacked up luggage in the vehicle gave them
protection and that, as they drove out, he expected a possible

threat to come from the staircase in the house and that when the
shooting started, he thought it was the robbers.
He testified that, once the shots went off, they lowered their heads
and tried to duck as much as possible. He continued reversing
up
the street and the firing continued. He then got stuck. He did not
see anything whilst reversing up the street and when the
vehicle
came to a standstill, he put it into forward gear to get away from
the gunshots coming from the back. He thought it
was the robbers
shooting at him and that they were a big syndicate trying to take
him out. As he put the car into forward drive,
they lowered their
heads and tried to go forward no matter what happened and get away
from the gunshots. He did not see the
street and, as he went
forward, more shots came from both sides. He could feel the vehicle
was hit from the side and the noise
inside the car was like
explosions. The vehicle lost its power and he found it difficult to
steer with the steering wheel becoming
very hard. He could not
really see where he was going. He did not see any vehicles in the
front and more shots came through
the front windscreen. Then the
vehicle lost almost total power and came to a standstill. He
jumped out immediately and the
first thing he saw was a policeman.
He then realized that the Police had shot them and screamed
“you
are shooting at the wrong people”
.
He testified that, in reversing out of his garage, he heard nothing
from the street side at all, saw nothing indicating that
there was a
Police presence in the street and that he would have stopped if he
had known it was the Police. He did not hear
any warning shots and
he did not hear the words
“stop police”
. He did
not see any blue lights flashing and there was automatic gunfire
with no pause between them. The windows of the Land
Cruiser were
shot out at the back and sides and he was in ICU for thirty eight
days.
He stated that the light that night was as usual in the street and
you could see people and cars in the street. There were more
lights
in the house and there were garden wall lights on the houses. He
did not hear any shots at all in the house and he was
not aware of
anything that disturbed the robbers. He was not aware of any shots
fired at his car from the house as he reversed
out. He did not hear
the Police shouting
“here they come”
or anyone
shouting
“Fox Alarms”
. Once the shots went off,
he ducked as he could hear the bullets very close to his head. He
was hit in his shoulder by two
bullets and when asked whether he had
been hit in the upper parts of his body, he stated that he had a
scratch wound on his head
but did not know the cause. The luggage
from their holiday was stacked up quite high in the back of the
vehicle and they did
not see the Fox vehicle or any Police vehicle
up the road whilst reversing. He also did not see any vehicles
whilst going forward
and said that he did not swerve onto the
sidewalk to avoid a Police vehicle. He said the first shots were
fired from behind,
he heard the metal and explosion from the first
bullet and the bullets definitely came from higher than lower. He
stated there
were two burst tyres on the vehicle and scuff marks on
the tyre and that it had definitely hit something like a storm water
drain.
He stated the firing had started as soon as he left the
outside of the gate turning into the main road.
He was questioned about the report of a psychologist, one Prinsloo,
whom he and his wife had seen. He said that he was advised
of two
gunshots that his children had told him about which were fired in
the house, but he was not aware of a third gunshot at
all. He,
however, had not heard any shots himself.
An important issue is when the shots by the Police were first fired.
Under cross examination, Mr Kotze testified that he heard
the first
hail of bullets as he reversed
“into the street into the
main street”
(Record, p 81, line 24).
Thereafter, he testified under re-examination in relation to where
his vehicle was when
the firing commenced that
“as soon as
I have left the outside of the gates, turning into the main road,
and the fire did not stop almost where the
vehicle came to a
standstill, continuously firing roughly fifteen to eighteen seconds”
(Record, p 100, line 25).
He further testified that when the first shots came through the back
window
“it was parallel with the road going in the opposite
direction in reverse gear”
(Record, p 101,
line 7 9,) and shortly thereafter stated
“I do
not know if I was facing a hundred percent in line, reversing up.
As soon as I have left the driveway of the house,
bullets came from
the back”
(Record, p 101, line 15). He also
states
“I was turning, while I was turning. … While
I was turning into the … the first shots came from the back”
(Record, p 101, lines 19 24).
Although the parties agreed, in the second pre-trial conference,
that one of the common cause facts was that:
“As the Toyota
reversed into the street as aforesaid the SAPS opened fire on the
vehicle with R5 semi-automatic rifles and
9 mm pistols”
(para 4.14), the Plaintiff’s evidence itself is not entirely
clear as to whether the first shots started as the Toyota
reversed
into the street, or when the car was already facing
“a
hundred percent in line, reversing up”
. What does seem
clear from the evidence of the Plaintiff is that the shots were
fired at him either as he started turning into
the street, or just
as he had left the driveway of the house into the street so that he
may already have been facing straight
down or almost facing straight
down in the road.
The Plaintiff’s counsel argued that any evidence in conflict
with the agreed facts falls to be rejected. He referred to
the
Plaintiff’s evidence (Record, p 43, line 20),
“as I
got into the road, automatic gunshots went off immediately
”
and then submitted that the Plaintiff’s evidence was not
disputed under cross examination at all (para 5.11, Heads
of
Argument). However, the Plaintiff’s evidence is not entirely
clear, as set out above, and despite it being an agreed
fact that
the shots commenced as the Toyota reversed into the street, the
evidence of the Plaintiff himself is inconclusive.
As appears from
Fourie v Sentrasure Bpk
,
1997 (4) SA 950
NCD: a
court can ignore an admission on the pleadings when it appears
clearly, after full investigation of the facts, that the
admission
does not accord with the facts, and where injustice would result if
the admission were given effect to (pg 973 I/J
– 974 B/C).
Irrespective of whether the Plaintiff’s vehicle was shot at as
it touched the road, or as it was turning into the road,
or as soon
as it was facing straight downwards in the road, what is apparent is
that the gunfire commenced in an extremely short
space of time, in a
matter of a couple of seconds, after the Plaintiff reversed through
his open gate at high speed.
The Plaintiff’s counsel submitted that, from the point where
the Plaintiff’s vehicle exited the gate, it only travelled

some five metres before coming under fire. This, he said, was
because it was five metres from the Plaintiff’s gate to
the
point where the street started. He submitted it would probably have
taken no more than one second to cover that distance
of five metres,
and that the necessary implication from the aforegoing is that the
Police opened fire within one second of the
Plaintiff reversing out
of the gate.
Irrespective of whether this submission is right or wrong, even if
the Plaintiff had only first been fired at as his vehicle
turned
into the road and the vehicle was already facing straight down, only
another few metres would have been covered and another
very short
period of time would have elapsed in addition to the brief period it
took for his wheels to touch the street as he
reversed five metres
out of the gate.
The Plaintiff was not challenged on his evidence which, effectively,
gave a maximum time for the commencement of the gunshots
to have
been that he was
“100% in line, reversing up”
.
It was never put to the Plaintiff in cross examination that he was
any further up the street when the first shots were fired.
Thus,
even taking the most prejudicial of the Plaintiff’s versions,
the window period before the shots commenced was extremely
short,
and must have been only a matter of a couple of seconds.
The evidence of Mrs Kotze, who occupied the passenger seat of the
vehicle
She also described the events leading up to the shooting. In
relation to the time that the shooting commenced, she stated that

they ran to the car, reversed out and the moment they hit the street
up the road, shots started coming from the back. The car
then
stopped. She told her husband to put the car in first gear and go
forward as she thought there were other robbers in the
street and
she wanted to get away. She said that she ducked after the shots
started and her husband told her to duck. As they
went forward the
shots kept coming and never stopped. She sustained six gunshot
wounds, being wounds to her left upper arm,
left breast, lower left
leg, right arm and the back of her right hip.
She did not hear any shots in the house, no shouting from the Police
or Fox Security, nor a purported shot through the roof of
the car.
She said that the shooting started the moment they went out of the
driveway and that, as they reversed out, she sat
upright as she
wanted to watch the garage in case the robbers came. She started
ducking for the first time the moment the car
reversed out and the
shots started. She did not notice any persons outside as they were
reversing and the first time she saw
a person after the shooting
started was after their car had stopped around the corner.
She stated that, after reversing out of the driveway, she never saw
other vehicles in the street, never heard sirens and never
saw blue
lights. She said the luggage had been packed for the holiday and
there was some in the boot and some in the middle
row of seats. She
confirmed the luggage was as appeared in photograph B4 number 5.
She stated that the report of Prinsloo, the psychologist, is
incorrect in recording that the robbers had shot at them from the

second storey and that there was a hole in the roof of their car, as
it was the children who had told them afterwards that shots
were
fired. Neither she nor Mr Kotze heard the shots go off in their
house.
In relation to the position of the car when the shooting commenced,
her evidence, like that of Mr Kotze, varied as she then said
the car
had already reversed and was facing down the road when she heard the
gunshots. She still had her head up until then
and saw no Police as
she exited the gate. She saw no vehicle further down eastward as
there was no time to look, as the moment
they reversed the shots
started.
She said the windows were all closed in the car and she heard no
shouting, saw no Police or Police vehicles and only saw Captain

Jonck when the vehicle stopped. She said her side was partially
obscured by the luggage, but if there were vehicles behind her
as
they reversed, she was sure she would have been able to see them.
Even when the vehicle stopped before Mr Kotze put the car
into
forward gear, she did not see any cars.
She said they raced down the road, and she kept her head down all
the way forward until the car came to a stop. She did not
see two
vehicles blocking the road as she was ducking and not looking
outside. She could not remember if the Land Cruiser’s

headlights were on. She later stated that, as they were reversing,
if there had been vehicles seventy metres away she would
not have
seen them and that when the vehicle stopped whilst reversing, if
there had been cars twenty metres behind she would
not have seen
them. She thus conceded that the luggage may have played a part in
her visibility. She also said that she did
not concentrate at the
back as she was looking at the house for the robbers and did not
expect anything to come from behind.
In summary, in relation to the exact moment when the firing started,
Mrs Kotze’s evidence varied. In chief, it was that
the
vehicle was hit with automatic gunfire the moment the car hit the
street up the road, but under cross examination it was
that the car
was already facing down the street, reversing up the street when the
shooting started (Record, p 177, lines 13-18).
My comments in relation to the discrepancies in Mr Kotze’s
evidence apply equally to Mrs Kotze’s evidence. Either
way,
the shooting started within a couple of seconds after they exited
the gate.
This is borne out by the evidence of three policemen for the
Defendant; Marais indicated that he could not dispute the
Plaintiff’s
version that the shooting commenced as the
Plaintiff turned into the street, (Marais, Record, p 402 and p 419);
Simpson said
that there were
“split seconds”
before there were a lot of shots (Record, p 534, line 27), and
Constable Rapetswa agreed, under cross examination, that
the firing
from the Police started as the vehicle turned into the road and that
he must have shouted before the vehicle got into
the road (Record,
p 490, line 19).
Only Barnett, the Fox Alarms Security Officer, who testified for the
Defendant, suggested that the shooting started when the
vehicle had
travelled some distance up the road, but this version was not put
under cross examination to either the Plaintiff
or Mrs Kotze. I
reject Barnett’s evidence in this regard.
Having regard to this synopsis of the evidence as to the point in
time when the shooting at the vehicle first commenced, I find
that,
on the probabilities, the Plaintiff’s vehicle must have been
shot at either as it touched the street, or immediately
after it had
straightened backwards into the street, and that this would have
occurred within a couple of seconds of exiting
the gate.
The evidence of Mr Sinden, for the Plaintiff, as read together
with the evidence of Mr Nkosi, the photographer for the Police
Mr Sinden is the son-in-law of the Plaintiff and married to another
daughter who was not present at the robbery. He arrived
at the
property between 1 am and 2 am in the morning after the shooting
incident and inspected the Plaintiff’s car on arrival.
All of
the vehicle’s windows were broken except for the front
windscreen which had bullet holes in it. He inspected the
tyres.
He found three of the tyres were completely flat and one tyre was
partially inflated. He did not find any bullet marks,
or bullet
holes in the tyres. He said he thought the tyres were flat from
hitting the storm water culvert (Record, p 110, lines
4 15).
He did not count the shots but estimated that there were
approximately two hundred shots (Record, p 111, line 20).
There
were bullet holes in the side of the car.
Mr Sinden identified the 186 photographs that he took the day after
the incident. These appeared in Bundle 4, pages 1-179.
He also
took the photographs handed in as exhibit “D” in Bundle
7.
The next day he found bullet holes in the houses next to 5 Isak De
Villiers and opposite there were bullet holes in the house’s

doors and brickwork.
Importantly, in relation to the tyres, he testified that he
inspected the right rear wheel for bullet hole damage. He found
no
sign of bullet marks on the tyre. There were no stickers or any
other markings on the wheel affixed by the Police to mark
bullet
holes, and nor were there any stickers on any of the other wheels to
mark bullet holes. He said the Police had affixed
nothing to any of
the wheels as part of their marking of bullet holes (Record, p 117,
lines 7-15).
He witnessed the Police using cones to mark the cartridges, conceded
that the right front and right rear wheels had not come
near the
culvert and that, as per some of the photographs, the markings on
the vehicle were in line with the tyre.
Mr Sinden’s evidence, which related largely to the photographs
of the vehicle that he had taken, was not contested in any
material
aspect. His photographs clearly displayed the little stickers
placed by the Police on the vehicle to mark the position
of every
bullet hole on the vehicle. I must thus examine the position of
these stickers in order to make findings on the manner
in which the
Police opened fire and the positions on the vehicle to which the
shooting was directed.
On an examination of the numerous photographs that Mr Sinden took,
particularly in relation to the position of the stickers placed
by
the Police to indicate bullet holes on the vehicle, it is
significant that, on the photographs of the tyres taken by Mr

Sinden, there are no Police markings or stickers of bullet holes at
all. Rather, there are some bullet holes marked on the side
of the
vehicle at tyre level, both above and below the level of the tyres,
but there are no markings of bullet holes on the actual
tyres.
Further, in relation to the rear of the vehicle, there is only one
bullet hole on the entire rear of the vehicle below the level
of the
rear window on the right hand side. The rear window is shot out.
Photograph 43, Bundle 4 shows the rear left hand
side of the
vehicle and there are no stickers there, whilst photograph 50
is a close up of the rear of the vehicle and shows
only one sticker
on the right hand side of the vehicle over the writing “Land
Cruiser” above the number plate. Photograph
51 also shows
clearly that there are no bullet holes around the rear left hand
side of the vehicle, either above or below, or
in the vicinity of
the left rear light.
Mr Sinden’s photographs become even more significant when
looked at in conjunction with the photographs taken by Constable

Nkosi on 28 August 2008, in his capacity as the official draftsman
and photographer, attached to the Local Criminal Record Centre

Germiston, for the Police.
Mr Nkosi’s photographs, as appear in Bundle 5, numbered 1 to
209, also show no stickers indicating any bullet holes in
the tyres.
This is consistent with Mr Sinden’s photographs. Out of a
dossier of over two hundred photographs taken by
Mr Nkosi, there
were approximately twenty six photographs taken of the Plaintiff’s
vehicle. Only sixteen of these were
taken close enough to see
bullet holes in the vehicle and none of these photographs were taken
of the vehicle’s tyres at
very close range. His photograph
number 3 (p 203) showed the front right hand tyre as being
flat.
In evidence, Mr Nkosi confirmed that it was possible that he could
have found more than two hundred cartridges at the scene.
In
relation to the photographs he took of the vehicle, he stated that
one Doubelle, who was on the task team, had focused him
on the holes
in the vehicle and told him they were bullet holes. Photographs of
any bullet holes in the tyres were singularly
absent from his large
dossier of photographs, despite Doubelle having specifically
focussed him on the bullet holes in the vehicle
when he was taking
the photographs.
Mr Sinden was never challenged by the Defendant in cross examination
as to his observation that he inspected all the wheels of
the tyres
and could see no bullet holes in them. He further testified that
stickers were placed by the Police on all the bullet
holes on the
vehicle and that no stickers were placed on any of the tyres. His
photographs of the tyres confirm that no stickers
appear on the
tyres. Mr Nkosi’s photographs also confirm that there were no
bullet holes on the tyres.
Thus, arising from the combined photographs taken by both Mr Sinden
and Mr Nkosi, not a single photograph evidences even one
bullet hole
in the tyres. All that is evidenced is that some of the tyres were
flat. The photographs did show a culvert over
which the vehicle had
gone and it was suggested that this may have caused the damage to
the tyres, but I can make no finding
on this.
What is clear from the combination of photographs of Mr Sinden and
Mr Nkosi is that there were numerous bullet holes peppered
over the
vehicle, and that nearly all the windows of the vehicle were shot
out, except for the windscreen, which was itself replete
with bullet
holes, and the back tiny left hand window.
In relation to the right hand side of the vehicle, a large number of
bullet holes appear directly on the driver’s side
door, whilst
a lesser amount of bullet holes appear on the rear door. The rear
window is shot out, but only one bullet hole
below the level of the
rear window is visible. But for this hole, there are seemingly no
bullets on the back right hand panel
of the vehicle (see photograph
25 of Mr Sinden).
In relation to the left hand side of the vehicle, numerous bullet
holes are present on the left hand front passenger door and
the left
hand rear door, all largely above the beading of the vehicle at the
level at which a person would be sitting. Only
two holes appear on
the back panel of the left hand side of the vehicle (Sinden
photograph 32), and both the front left
passenger seat window
and rear left passenger seat window are shot out.
The front windscreen has at least ten bullet holes in it and the
front of the vehicle has approximately four bullet holes in
the
section below the bonnet. Thus, in front, the vast majority of
bullet holes are in the front windscreen, and are not below
its
level.
On a count of the bullet holes marked by the Police on the lower
level of the car, with such “lower level” constituting

from just in line with the tyres as well as below tyre level and a
little above tyre level, I can count no more than eight bullet
holes
on the right hand side of the vehicle. All of these appear in the
middle section of the car between the two sets of tyres
and at least
seven of these “lower level” bullet holes are in the
vicinity of the driver’s passenger door,
albeit on the lower
side of the driver’s door area.
On the left hand side of the vehicle, on the passenger’s side,
a similar picture appears. If one looks at photograph 31,
Bundle 4,
the majority of the bullet holes are in the upper level of the
vehicle in the vicinity of the passenger seat. Both
front and rear
door windows are shot out. The bullet holes appear to be largely
around the crack where the front passenger door
joins the rear left
hand door. Once again, only three bullet holes appear to be at a
level lower than the beading running across
from the tyres.
Significantly, as appears from photograph 32, Bundle 4, in the
left hand rear part of the vehicle, only
two bullet holes appear,
and these are somewhat higher than the tyre, and are closer to the
rear window level. Photograph 34,
Bundle 4, shows three bullet
holes almost directly in line with the passenger seat and close to
window level.
As already indicated, not a single bullet mark has been marked on
either the front right hand tyre, which was clearly flat in
the
photograph, or on the back right hand tyre, or on the other two
tyres.
On the probabilities, it thus appears that the tyres were not flat
due to being shot, that the vast majority of the fire on the
right
hand side of the vehicle was not directed at the tyres, but at the
driver, and in the case of the left hand side of the
vehicle, that
the vast majority of the fire was not directed at the tyres but at
the passenger.
I turn now to an analysis of the evidence given by the Defendant’s
other witnesses.
d)
The evidence of Mark Barnett (the security officer)
He arrived first at the scene after being informed by the officer in
the control room that a lady was shouting for help at 5
Isak De
Villiers Street, that screaming could be heard and that there was
assaulting taking place at the premises.
He stopped his car approximately seventy metres from the property on
the western side. Later, in his evidence, he changed this
to place
it at forty eight metres from the property. He climbed out of the
car, approached the gate, heard screaming from a
female and noticed
a suspect moving around the dustbin and the trailer parked in front
of the gate with a long firearm in his
hand. He noticed a car
coming up past the driveway with policemen inside who drove past him
and stopped in the top section where
his car was. To the right he
saw a police van coming from the Douglas Harris side with blue
lights on. He saw to the right
that the first Police vehicle had
stopped and the other vehicle had joined it.
He noticed policemen coming down on the left and right side of the
road and, on them approaching, he warned them there was a
suspect
standing at the open gate with a gun. Two policemen took cover
where he was standing against the wall, one behind him
and one
across the road by the neighbour’s driveway.
When a shot was fired, he heard a policeman shout on the left hand
side that they are shooting the people inside. He got up
to
approach the gate and as he did so, the garage door started opening,
and two shots were fired again which were coming from
the house. He
thus heard three shots in total.
After the sliding gate opened the vehicle reversed out of the garage
into the driveway and up the street towards him. While
the vehicle
was reversing out of the gate he shouted
“its Fox, its Fox,
its Fox Alarms”
. He moved one or two steps back into the
side of the road and shouted again
“its Fox Alarms”
.
At that time he said numerous Police around were shouting
“get
out of the car, it’s the police”
.
The vehicle kept on coming up the road in the same movement and
speed and, after they shouted, they all returned to their places

against the wall where they felt safe. He could not see who was in
the vehicle. He got against the wall and made a decision
to stop
the vehicle getting closer. At the vehicle’s back section he
fired eight shots.
At that stage there were numerous shots from the Police from the
Douglas Harris side. There was also a projectile coming from
the
vehicle through the windows penetrating the walls behind them. The
car veered off to the right hand side and rode into the
neighbour’s
driveway with the back right hand light of the vehicle against the
wall. He moved into the road and approached
the car from the front
left door, asked the people to identify themselves and asked them to
get out of the car. He heard the
Police shout
“get out of
the car”
.
The vehicle showed no movement inside, ignored the instructions and
drove down the road at a higher speed than it reversed.
He stated
the halt between reversing and driving forward could have been 10
seconds or five seconds, as it was so quick.
As the vehicle passed him, he fired again at the tyres and back
section of the vehicle. After it went past, he moved slightly
into
the road and there were shots fired from the bottom. He testified
he thought it was the robbers in the car. He conceded
that, as a
security guard, if a suspect is fleeing from the house, it is his
duty to first arrest the suspect and to shoot and
kill as a last
resort. He stated that the Police who had come up from the Johan
van der Merwe street side stopped at the top
next to his vehicle and
would effectively have blocked the road. He said that the second
Police vehicle with blue lights on
the roof stopped behind his
vehicle and he could see the blue lights stopping three to four feet
behind. He noticed another
Fox vehicle that night.
He stated the robber keeping the look-out whom he had noticed, would
have seen his vehicle and might have seen him as he drove
past with
his headlights and hazard lights on.
He stated that as the vehicle went past, he fired shots at the tyres
to stop it. He stated that, from the tree, he had a bird’s

eye view of the opening gate and could see straight through the
garage. Other policemen joined him behind the tree about twenty
two
metres away from the gate, and another Constable joined them in
front of him.
He stated there were blue lights reflecting against the building
that drew his attention to them, and that he was behind the
tree
when he heard the first shot. He did not know who fired it but it
came from the property.
He said that, after the first shot, the policeman on the left
shouted that they were shooting them in the house, and that it

sounded like Murray Simpson.
When challenged as to whether he could see the garage door from the
place where he was standing, he insisted that he could.
He was inconsistent as to when the shouting first started. He both
stated that as the first wheel of the vehicle touched into
the road,
they started shouting (Record, p 267, line 22), and that the
vehicle was actually moving up the road when the
shouting started
(Record, p 266, line 1).
His evidence as to how the shouting took place was also
inconsistent. He testified that he first shouted
“Fox
Alarms”
twice, moved towards the vehicle to try and see
who was in the car, and then again screamed twice when the car was
three to four
metres in front of them. He said the Police shouted
continuously.
He stated that when the vehicle stopped in reverse, it came to a
stand still and that during that period, there was a pause and

quietness. He shouted twice again when the vehicle was stationary,
approached the car and the Police also shouted. He thus
shouted six
times in all over a period with intervals in it, according to his
evidence.
Mr Barnett was invited in Court to show how it was physically
possible to shout six times in the manner described by him, if
the
car was moving at thirty km, which meant it was covering eight
metres per second, and he had only started shouting when
the vehicle
was less than twenty metres away from him, Barnett having estimated
that he was standing twenty two metres from the
gate. He had also
testified the first shots were fired when the back tail lights of
the vehicle were a metre diagonally to the
left of him (Record,
p 289, line 3). It was therefore put to him that it would
have taken less than three seconds,
or even five seconds, to cover
that distance and Mr Barnett was invited to demonstrate that he
could have shouted as described
in his evidence in less than three
seconds, or favourably, less than five seconds. He declined to do
so.
I conclude that it was not possible in the time available for Mr
Barnett to have engaged in the shouting in the manner in which
he
described it to this Court. Furthermore, his version of when and
how he and the policemen shouted changed during the course
of his
testimony. Little credence can therefore be given to this aspect of
his evidence. Furthermore, both Jonck, Simpson and
Mr and Mrs Kotze
stated that there was no interruption or pause in the shooting when
the vehicle hit the wall, and therefore,
again he could not have
shouted in the
“alleged”
pause and quietness when
the vehicle hit the wall.
As stated earlier, his evidence of when the firing first started is
also not borne out by the evidence of Mr and Mrs Kotze, Marais,

Simpson or Rapetswa.
He said he fired at the back left rear tail light and that his
intention was to stop the vehicle going further. He stated he
only
intended to fire at the tyre. I note again that there were no
bullet marks anywhere near the back left rear tail light
or tyre
where Barnett stood. This was despite the fact that he testified
that he had seventeen rounds in his pistol and used
them all.
He further testified that the Plaintiff would have seen a Police
vehicle as there were blue lights on, reflective off the buildings

(p 195, line 8). He was adamant about the latter blue lights. This
was not supported by the evidence of the Police themselves.

Specifically, Captain Jonck stated it was not policy for the Police
to have lights on when approaching such a scene and not a
single
Police Officer said that their blue lights were switched on.
There were a number of other serious problems with Mr Barnett’s
evidence. He gave evidence that the suspect at the gate
was holding
a long gun and that he had informed the Police members on their
arrival of such facts, although these allegations
were never stated
in his affidavit which was attested to less than a week after the
incident. What Barnett did confirm, however,
was that the Police
vehicles that had stopped next to his vehicle would effectively have
blocked the road (Record, p 218, line
9).
It became increasingly obvious through Mr Barnett’s cross
examination that he was becoming uncomfortable but was nevertheless

determined to offer a version irrespective of the obvious fallacies
in it. By way of example, in spite of all the photographic
evidence
relating to the height of the luggage stacked in the vehicle, he
insisted that there had been much more luggage than
the photographs
recorded and even implied that the luggage must have been tampered
with. There was no evidence from anyone else
to this effect. There
are other such examples which I shall not detail.
In conclusion, Mr Barnett’s evidence was improbable and
unsatisfactory in several respects and in many aspects did not

accord with the evidence of the Police. I have attached little
weight to his evidence when assessing the facts.
e)
The evidence of Captain Riaan Marais
He testified that three shots were fired from the property and that
he heard someone shouting
“here they come”
before
the car reversed out of the gate. He said the shouting started when
the vehicle’s rear wheels touched the road
and, as it
reversed, it came at high speed and he heard someone yell
“stop
police stop police”
. Then “all hell” broke
out and gunshots started ringing.
Mr Marais fired at the passenger side of the vehicle when it was
reversing and he fired twenty rounds. When the vehicle came
to a
standstill, they were trying to approach it when the vehicle
immediately sped forward. He stated that when he heard the

shooting, he thought it was directed at the Police and that he
thought the suspects were shooting at them. He was the only
policeman who thought this. He said that the Police do not normally
arrive with sirens and blue lights at a house robbery as
they do not
want to warn the robbers and he said his blue lights were not on, as
alleged by Barnett. Like Barnett, he saw a
man standing inside the
small gate, but he made no mention of the long gun which Barnett had
referred to. He stated the robbers
would probably have heard the
Police car and seen their headlights going past. He described the
scene as
“chaotic”
. He could not recall a
policeman shouting that
“they are shooting the people
”.
He stated that he could not dispute Mr Kotze’s testimony that,
as he got out into the road, he was hit by automatic gunfire
and the
first bullets flew through the rear window (Record, p 402, line 9).
Marais used his R5 rifle on single fire and not
automatic.
Importantly, he stated that he directed his fire at the vehicle as
it came parallel to him, that he directed his fire at the
occupants
and that it was his intention to shoot to kill them. He also fired
at the back of the vehicle as it was going forward
and tried to hit
the occupants. He said he could not dispute that someone else must
have fired the first shots from the rear
through the window as Mrs
Kotze had testified.
He said the vehicle was on the other side of the road about ten
metres away and that he was five to seven metres away from the
left
hand side on reversing. He said that the vehicle was reversing
fast, that he kept shooting at the vehicle as it went forward
and he
shot at the back of the vehicle, also whilst trying to shoot the
occupants.
He conceded that it was not difficult to direct fire at tyres at a
distance of seven metres, and that in retrospect it would
have been
possible to shoot at the tyres. He heard Rapetswa yell
“stop
police”
only once as far as he could remember and then
conceded that in evidence the day before he had said they shouted
“stop police”
twice. In the end he said he was
not certain how many times
“stop police”
was
shouted. He only heard Rapetswa shout. It is noteworthy that he
did not hear Barnett shout six times or at all, as testified
by
Barnett.
He said that he was unable to conclude that the occupants would have
known they were the Police at that stage and could also
not conclude
that the driver would have heard the order to stop. Importantly, he
stated that he could not dispute that there
was no proper
identification of the Police and contact from the Police on which
the driver could react. He conceded that the
steps taken in
relation to alerting the driver of their presence may not have been
known to the driver. He also conceded that
he did not think the
Police should have opened fire without first directing it at the
tyres.
No evidence was given by Mr Marais that he believed the people in
the vehicle would shoot at them and indeed no other witness

testified to this effect.
He also stated that, if they had got the whole road blocked off,
there would have been no excuse for killing the driver as he
could
not get away in any case (Record, p 378, line 11). Mr
Marais agreed under cross examination that he had parked
his vehicle
next to Mr Barnett, as Mr Barnett alleged, and that they had
effectively blocked off the road surface.
All in all, Marais confirmed my earlier findings that, on the
probabilities, the shooting started almost instantly either as
the
vehicle reversed out of the gate or as it turned into the street,
facing straight down. Furthermore, Marais stated that
he had shot
immediately to kill the occupants and not at the tyres. His
evidence suggests too, that, on the probabilities, neither
Barnett
nor anyone else acted in a matter sufficiently to alert the
Plaintiff of their presence.
f)
The evidence of Constable Rapetswa
He testified he was alone in his position when he heard someone say
“here they come”
and then heard two shots. When
the car reversed out he said he shouted
“police stop”
several times. The car did not stop and he shot at the wheels. He
said it reversed, stopped on the other side of the road and
he went
again and shouted
“stop we are police stop we are police”
and it went forward. He stated he shot at the tyres at the back as
it reversed so that he could stop it, and then shot at it
again when
it was going in an easterly direction. He said the car was
reversing at high speed and he saw luggage in the back.
He also said he parked his car in the middle of the road and not
behind the two Fox vehicles and that the road was blocked off

effectively so that the suspects could not escape.
Mr Rapetswa, importantly, agreed with Mr Marais that the firing from
the Police started as the vehicle turned into the road and
that he
must have shouted before the vehicle got into the road (Record,
p 490, line 20). He said he shouted before
the shooting
started, and when he realized the car was not stopping, he started
the shooting (Record, p 491-492).
Mr Rapetswa’s evidence on several issues was improbable and
unsatisfactory, particularly having regard to the time frames
which
he gave. In essence, his evidence was unreliable and little weight
could be placed thereon.
g)
The evidence of Murray Simpson
Mr Simpson’s evidence was of little assistance. He was
further away down the road and very unclear about the sequence
of
events being put to him. His final version was that he saw lights
reflecting, the gate opened, the car reversed, two of its
wheels at
least touched the road and two shots rang out. The shouting
occurred probably once the vehicle had straightened up,
or maybe
even at forty five degrees after it had come out. He said there
were
“split seconds before there were a lot of shots”
(Record, p 536, line 23). He conceded that as he did not
know who was firing the shots, it could
“definitively have
been
” the Police firing through the rear window of his
vehicle and that therefore what he was saying might be fully
consistent
with the Plaintiff’s evidence (Record, p 409).
Although Mr Simpson did not appear to be an evasive witness, his
evidence was too unclear, probably arising out of his poor memory,

to be of any cogent weight.
h)
Evidence of Captain Jonck
He was on the eastern side at the time the incident happened, with
poor vision towards the house. He heard a member shouting
that
“the
gate was opening and they are on their way out”
. He heard
a vehicle moving in reverse and seconds later he heard automatic
fire as well as hand guns. He stated that, on his
side, the road
was more or less blocked as his vehicle was parked skew in the
street. Of significance, he states that other
than hearing someone
shouting that
“they are opening the gate”
, he did
not hear anything else. He stated that the moment the vehicle came
out, there was chaos and specifically, that if there
had been
shouting before the rapid gunfire, he would have heard it. He also
said he could not dispute the evidence of the Plaintiff
and Mrs
Kotze when they said that they heard no shouting at all (Record,
p 570, lines 1-16).
Captain Jonck’s evidence contradicts the evidence of Barnett
and Rapetswa that there were warning shouts before the shooting.
I
have already found that Barnett and Rapetswa’s evidence was
unreliable. It appears from Jonck’s evidence there
were no
warning shouts at all, as he said that if there had been warning
shouts prior to the gunfire, they would have been heard
by him. It
thus seems that, on the probabilities, the gunfire must have
commenced almost simultaneously with the shouts, thus
effectively
drowning out the warning shouts, if there were any.
i)
The evidence of Miss Ginene Kotze, the Plaintiff’s
daughter
She confirmed there was a third shot whilst she was in the house
some four or five seconds after the second shot while she was

hopping back into the main bedroom. Having regard to what I state
below, whether there were two or three shots within the house
does
not change the picture.
D.
FINDINGS ON THE PROBABLE FACTS ARISING FROM THE
EVIDENCE PRESENTED
It is not necessary for me to make findings of facts on what
occurred prior to the Plaintiff’s vehicle reversing out of
the
gate at high speed. It is common cause that there were at least two
shots fired within the house, and probably three. The
evidence of
all the Police, save for one, suggested that they did not know who
was firing at whom in the house and only one policeman
said he
thought the robbers might be firing at them. On a balance of
probabilities it does not appear that the Police were under
any
immediate threat personally in terms of the shots being fired prior
to the exit of the vehicle from the house, and nor did
any of them
testify that they felt threatened by the shots that had gone off in
the house prior to the exit of the vehicle.
What is required, is to determine whether the conduct of the Police
was justified and implemented in accordance with
section 49(2)
of
the
Criminal Procedure Act as
well as the two circulars referred to,
when the vehicle of the Plaintiff exited the property at high speed.
I am satisfied that the Police attempted to arrest the Plaintiff.
The next enquiry is whether, as the Plaintiff reversed out
of the
gate and up the road, the attempt of the Police to arrest him was
made clear to him. In
Macu v Du Toit en ‘n Ander
,
1983 (4) 629 (A), Cillié J.A. stated at 633G-H:
“
Met betrekking tot die toepassing van die bepalings van art
49(1)(b) van die Wet is die vraag gestel vir wie dit duidelik moet
wees
dat a poging aangewend word om ‘n inhegtennisneming uit te
voer, is dit die arrestant of is dit die arresteerder? Dit is
genoeg
om hier te s
ê
dat dit veral vir die arrestant
duidelik moet wees ‘dat ‘n poging gedoen word om hom (die
arrestant) in hegtennis te
neem’
.”
P.J. Visser in his article entitled
“Geweld en Doodslag by
Inhegtenisneming”
in De Jure 1987, p 123 (at pages
134-135), in commenting on the old article 49 which was couched in
similar terms, states as
follows:
“
Hierdie vereiste word nie uitdruklik in artikel 49(2)
gestel nie, maar indien dit saamgelees word met artikel 49(1),
is
dit by noodwendige implikasie duidelik dat die arresteerder iets
moes gedoen (of self ges
ê het) wat op die
inbedwangstelling van die betrokke persoon se liggaam kon uitloop
(dws die voltooide arrestasie). Hierdie
vereiste word ook erken deur
Regter Coetzee in
S v Barnard
(1) (hierbo
433H-I). Hiemstra (96) se stelling dat die arresteerder ‘van
plan’ moes gewees het om die betrokke persoon
te arresteer, is
vaag en onakkuraat: die blote plan of voorneme is nog nie voldoende
nie en die arresteerder moes iets sigbaars
gedoen het om aan sy plan
uiting te gee…“
As already stated, it seems probable that the vehicle was fired upon
as its back wheels hit the road, or, at the very latest,
as it had
already turned into the road and was virtually straight in it or
already straight. This would have occurred in a matter
of a couple
of seconds.
Thus, the window period for the Police to make it clear to the
Plaintiff that an attempt to arrest him was being made prior to

using force was extremely brief. Whether the attempted arrest was
made clear to the Plaintiff should be determined objectively.
In regard to possible attempts to visually alert the Plaintiff to
their presence, in that there were no blue lights flashing,
and in
that the Police vehicles were parked some metres up and down the
road on either side of the premises, the Police presence
was not
overtly visible to the Plaintiff. It seems probable that the
Plaintiff and his wife did not see them for these reasons
and, in
not being been alerted visibly to their presence, would have had no
reason to believe it was the Police and not the robbers
firing on
them when the shots started moments after they exited the gate.
In regard to the auditory steps the Police took to alert the
Plaintiff and his wife to their presence, no evidence was proffered

of any warning shots being fired first. What the Police rely on is
that they shouted first to the Plaintiff to stop. Neither
the
Plaintiff, his wife, nor Captain Jonck heard these shouts. Captain
Jonck specifically stated that he would have heard the
shouts if
they had occurred prior to the shooting commencing. I have also
found above that the evidence of the witnesses for
the Defendant who
did engage in shouting, or hear shouting, was contradictory and
unreliable. Certainly, on the probabilities,
the shouting occurred
so close in time to the opening of the gunfire as to be meaningless,
even if the Plaintiff would or could
have heard it. I find
therefore that whatever auditory warnings occurred, they were not
sufficiently clear enough to draw the
attention of the Plaintiff and
his wife to the fact that the Police were seeking to arrest them
prior to the opening of the gunfire.
There was also no evidence
proffered of loud hailers or sirens being used.
Again, not being sufficiently alerted in an auditory manner to the
presence of the Police, either by way of a warning shot or
by way of
shouting, loud hailers or sirens, the Plaintiff would have had no
reason to believe it was the Police and not the robbers
shooting at
them when the shots started.
On an objective examination of the steps the Police took to alert
the Plaintiff to the fact that an attempt to arrest him was
being
made, not only were the steps insufficient, but they occurred too
close in time to the commencement of the gunfire to be
of any worth
to the Plaintiff in protecting him from being shot.
On a proper interpretation of
section 49(2)
, even if it is made
clear to a suspect that an attempt to arrest him is being made, the
suspect must have had sufficient time
to react to that clear attempt
before force is utilised. If this were not so, the protection to
civilians contained in
section 49(2)
, prior to being subjected
to lethal force, would be rendered nugatory. This is such a case.
Even, objectively, had the warnings
by the Police been sufficiently
clear to alert the Plaintiff to their intention to arrest him, the
firing commenced within seconds
of such warnings, if not
simultaneously therewith, with the result that the Plaintiff was
physically unable to react to those
warnings prior to being shot at.
There was simply no time in which he could react thereto.
That there should be sufficient time for a suspect to react to the
clear warning is reinforced by the wording of paragraph 3
of the
second circular which states that a member must,
“where it
is reasonable in the circumstances to do so, issue a clear warning
to the person who is to be arrested that force
will be used against
him or her unless he or she submits himself or herself to custody.
In such an event the said warning should
inform the person to be
arrested that lethal force will be used (eg that he or she will be
shot at)
unless he or she submits to the arrest
”
(my emphasis).
This contemplates that the suspect should be in a position to submit
to the arrest arising out of the clear warning. In the
present
case, the Plaintiff was given no opportunity to submit to the arrest
in the time available to him before he was fired
on.
I thus find that the Police did not comply with the second
requirement of
section 49(2)
before engaging in the use of
force, namely to make it clear first to the suspects (here the
Plaintiff and his wife) that an
attempt to arrest them was being
made. The conduct of the Police was therefore wrongful. That is
the end of the enquiry in
relation to wrongfulness. I nevertheless
deal with the third and fourth requirements of
section 49(2)
for
completeness.
In relation to the third requirement, namely that it should not have
been possible to arrest the Plaintiff without the use of
force, the
evidence was that the road was effectively blocked off on the one
side, and partially blocked off on the other side
by the Police
vehicles. The reality, though, is that the Plaintiff did manage to
drive past the Police vehicles on his way forward,
and ultimately
only stopped around the corner after being shot at. Nevertheless,
had the Police properly identified themselves
to the Plaintiff in
the first place before shooting at him, the Plaintiff, being an
innocent party, would have stopped his vehicle.
Force would never
have been necessary at all.
Once the firing commenced, the fourth question is whether the Police
used such force as may be reasonably necessary and proportional
in
the circumstances to overcome the resistance or to prevent the
suspect from fleeing. I have already found above, based on
the
photographic evidence, that minimal effort was made to shoot at the
tyres, this conclusion being drawn by me as a result
of the position
of the majority of the bullets being in the region and at the height
of the occupants of the vehicle on both
sides, with not a single
bullet marked on the tyres. This is further confirmed by a close
look at the damage to the rear of
the vehicle, which shows only one
bullet on the right hand side below the window, whilst the rear
window was shot out. One would
have expected that the Police would
have been astute to mark the bullet holes with their stickers on the
tyres, as Mr Nkosi attended
the scene the next day and testified
that a certain Captain Doubelle pointed out the bullet holes to him
for photographing.
Marais also confirmed that he immediately shot
to kill the occupants, and thus he had never even aimed at the
tyres, although
he was not the first person to shoot.
It is common cause that the incident happened in seconds, that there
was chaos and that there were many persons shooting at the
vehicle
from different angles. In that there appeared to have been over two
hundred shots fired at the vehicle, it is significant
that not a
single bullet hole found its way on to any of the tyres, despite the
vehicle being at close range, and that the vast
majority were at a
much higher level than the tyres, in the vicinity of the driver and
his passenger. I find that such force
was not reasonably necessary
and proportional in the circumstances to overcome the resistance or
to prevent the suspect from
fleeing, as is required in terms of
section 49(2).
In relation to the final requirements of
section 49(2)
that deadly
force can only be used if the arrestor believes, on reasonable
grounds, that either (a), (b) or (c) of the section
applies, there
was no evidence to suggest that force was necessary to protect the
Police as, save for Simpson, none of the Police
testified that they
thought that the shots fired within the house were being fired at
them. Neither did a single policeman testify
that he felt under
threat and nor was evidence given that there was any threatening
action from within the vehicle. Its windows
were, in any event,
closed.
Thus, even had the Police satisfied the requirements pertaining to
the use of force in accordance with the opening paragraph
of
section 49(2)
, which they did not, they were not entitled to
use deadly force in the circumstances of this case.
I am aware that this incident occurred in the most unusual
circumstances, and that the Police
bona fide
believed that it
was the robbers they were shooting.
Nevertheless, whether they believed it was the robbers or not is
irrelevant to the enquiry as to whether their conduct was justified

in terms of
section 49(2).
The test applies to all persons
being arrested, irrespective of whether they are the robbers or not.
Although I am mindful and most sympathetic to the stressful
circumstances under which the Police work, the provisions of
section 49(2)
are clearly designed to impose restrictions on
the actions of the Police when engaging in lethal force on our
citizens. The
law provides these safeguards for the rights of all
citizens not to be shot at, injured or killed when being arrested,
save in
the most extreme cases. This protection applies to all
citizens, whether they be criminals or innocent civilians alike.
The law must thus be applied to protect all citizens from extreme
and unnecessary use of force in effecting their arrest.

Irrespective of the gravity of the crime in which the alleged
suspects might have engaged, they may still not be shot at and

killed by the Police save in the circumstances set out in
section
49(2).
It is essential that the rule of law be upheld in South Africa to
prevent a disintegration into chaos and an untrammelled use
of
violence by the Police. It has not gone unnoticed that incidents
have been reported where innocent parties have suffered
as a result
of a lack of discipline, and perhaps training, in the Police force.
It is thus important that the Police are constrained
to obey the
rules to the letter of the law and to use only lethal force in the
circumstances permitted by
section 49(2)
and as reiterated in the
Constitutional Court judgment of Walters referred to above.
This case is a classic example of why
section 49(2)
needs to be
obeyed in every respect so as to ensure that no citizen is injured
unduly. Had the Police followed the prescripts
of
section 49(2)
in
these circumstances, the Plaintiff and his wife would not have been
shot. Their vehicle would either have found itself semi-blocked
on
both sides by the Police vehicles that were across the road, and, at
the very least, if proper attempts had been made to shoot
at the
tyres, the probabilities are that the vehicle would not have been
able to travel much further. Once the vehicle had ceased
to travel,
and in that the Plaintiff and his wife were not shooting at the
Police, being innocent civilians, one would expect
that the result
of the incident would have been that the Plaintiff and his wife
would have emerged from the vehicle relatively
unscathed.
Thus, had the Police followed the requirements of
section 49(2)
before opening fire on the Plaintiff and his wife, their injuries
could have been avoided. It is not an answer for the Police
to say
that they thought they were shooting at the robbers, as, even had it
been the robbers themselves in the vehicle, they
too were entitled
by law not to have been shot at in the manner in which the Plaintiff
and his wife were shot at.
Arising from the aforesaid, I find that the Police failed to act
justifiably in the circumstances of this particular case and
I
accordingly find that their conduct was wrongful.
Flowing from my analysis of the evidence above, I also find that the
Police acted negligently in shooting at the Plaintiff and
his wife
as they did.
The test for negligence has been authoritatively set out in
Kruger
v Coetzee
1996 (2) SA 428
(A) at page 430 as follows:
“
For the purposes of liability, culpa arises if –
a) a diligens pater familias in the position of the defendant –
i) would foresee the reasonable possibility of his conduct
injuring another and his personal property and causing him
patrimonial
loss; and
ii) would take reasonable steps to guard against such occurrence;
and
b) the defendant failed to take such steps.
This has been constantly stated by this Court for some fifty
years. Requirement a(ii) is sometimes overlooked. Whether a
diligens
pater familias in the position of the person concerned would
take any guarding steps at all and, if so, what steps would be
reasonable,
must always depend upon the particular circumstances of
each case. No hard and fast basis can be laid down. Hence the
futility,
in general, of seeking guidance from the facts and results
of other cases.”
It was without doubt foreseeable by the Police that, if they fired
upon the vehicle in these circumstances, their conduct could
cause
injury to the Plaintiff and his wife. Indeed, Marais went so far as
to state that he shot to kill immediately. On the
facts of this
case the Police were negligent.
E.
THE QUESTION OF CONTRIBUTORY NEGLIGENCE BY THE
PLAINTIFF
I turn now to the question of whether the Plaintiff’s actions
amounted to contributory negligence, calling for an apportionment
of
the damages in terms of the Apportionment of Damages Act, 34 of
1956.
The entire trial was conducted and concluded over a period of two
and a half weeks on the basis that the only defence to be determined

was whether the Police had acted justifiably in terms of
section 49(2).
It was only some four weeks after the conclusion of the argument,
when Supplementary Heads were filed by the Defendant, that
a Notice
of Intention to Amend was attached to those Heads introducing a new
plea of contributory negligence on the part of the
Plaintiff. The
Notice of Intention to Amend was itself in draft form, having
tracked changes on the document furnished to me.
Only on enquiry by
myself was a further Notice of Intention to Amend filed which was in
a proper form.
Although the Plaintiff initially objected to the proposed amendment,
he ultimately decided neither to oppose the amendment nor
to
replicate to the amended plea. He also declined to apply to reopen
the case, as did the Defendant. Both parties filed further
Heads of
Argument dealing with the issue in July 2011.
In that the trial was conducted throughout on the basis of a defence
of justification only being canvassed, neither the Plaintiff
nor his
wife had the opportunity of defending the suggestion that they had
acted negligently, as no questions were ever put to
them on this
score by either party. In similar vein, the Defendant never led any
evidence to suggest that the Plaintiff and
his wife contributed to
the plight in which they found themselves. It was only several
weeks after the conclusion of the trial
that the Defendant filed an
amendment to plead contributory negligence.
The onus is on the Defendant to satisfy this Court that there was
contributory negligence on the part of the Plaintiff.
The Defendant has pleaded that the Plaintiff was negligent in the
respects set out in paragraphs 3.2.1 to 3.2.13 of his amended
plea.
Several of these grounds overlap and I shall deal with them
together.
In relation to the grounds pleaded at 3.2.1, 3.2.2, 3.2.4, (there is
no 3.2.3) 3.2.6, 3.2.7, 3.2.8 and 3.2.9, in essence they

accumulatively amount to allegations that the Plaintiff was
negligent in that he failed to keep a proper lookout for the Fox

Security company officers and the Police officers in the vicinity
of, or outside, his premises after having called for their

assistance. This includes an allegation that the visibility was
good.
I have already made a finding that the Police, neither visually, nor
auditorily, nor timeously, identified themselves sufficiently
to the
Plaintiff and his wife to enable them to discern that it was the
Police and not the robbers shooting at them. Although
the
visibility in the street was fair, it being late at night, the
luggage in the back of their vehicle blocked their view to
some
extent, the Police vehicles had no sirens blaring, or blue lights
on, and the apparent shouts to stop were not heard by
the Plaintiff
or his wife or even Captain Jonck. As already indicated, it appears
more probable that the shouting occurred after
the shooting as
Captain Jonck testified he would most definitely have heard the
shouting if it had occurred before the shooting.
Indeed, far from
being alerted to the presence of the Police and an attempted arrest
by visual or auditory indications from
the Police, the rude
awakening that the Plaintiff had to the fact that any people were
outside his gate was when he came under
gunfire as he exited his
gate. There was not even a warning shot.
The firing commenced too quickly, as found by me, to have given the
Plaintiff or his wife any opportunity to establish whether
the fire
was coming from robbers as opposed to the Police. He was therefore
not negligent in not observing the Police presence.
In relation to the ground pleaded in 3.2.11 that the Plaintiff
failed to indicate and/or show to the Police by any means that
he
and his wife and not the robbers were the occupants of the vehicle
when given the circumstances, he should have done so, and
in
relation to the ground pleaded in 3.2.5 that he failed to stop his
vehicle given the circumstances that the Police announced
themselves
several times, in that I have found that the Police had not
sufficiently visually, auditorily, or timeously identified

themselves to the Plaintiff before firing on him, he was not in the
circumstances required to indicate that he was not the robber.
This
is particularly so as he believed that the robbers themselves were
firing at him and not the Police. He did not have any
duty to
identify himself to the Police in circumstances where the Police had
not made it clear that it was them who were present,
and where, in
any event, he had no time to react to their identification.
In relation to the allegations in paragraphs 3.2.12 and 3.2.13 that
he failed to avoid the happening of the shooting incident
on the
night in question when, given the circumstances that his behaviour
caused and/or contributed to such incident and that
he could have
done so, I find that, in that the Plaintiff was shot at within
seconds of reversing out of his driveway, with no
warning shots and
with insufficient visual and auditory warnings from the Police, he
was in no position to take any steps to
prevent or avoid the
shooting incident.
It must surely be reasonable and compatible with human nature to
have attempted to flee gunshots in circumstances where the Plaintiff

reasonably believed it was the robbers firing upon him and wherein
he had been given insufficient reasons or indications from
the
Police to believe otherwise. I also do not find that it was
reasonably foreseeable by the Plaintiff whilst reversing out
of his
driveway that he would be shot at by the Police without compliance
with the law before they opened fire.
In all these circumstances, and having regard to the conduct of the
Police, I find that there was no contributory negligence
on the part
of the Plaintiff and the Defendant has accordingly not discharged
the onus.
F.
COSTS
The Plaintiff has sought the costs of this trial on the attorney and
client scale, such costs to include the costs of the employment
of
two counsel. The Plaintiff’s counsel submitted that the
Plaintiff was entitled to costs on this scale as the Defendant

should not have persisted with its opposition on the merits and the
Defendant’s conduct in opposing the action was grossly

unreasonable.
Having regard to the extremely unusual circumstances in which this
incident occurred, and having regard to the complexity of
all the
evidence which was presented, I do not find that it was unreasonable
for the Defendant to oppose the action. It was
an unfortunate set
of circumstances which resulted in very unfortunate consequences.
The Defendant did, nevertheless, cause several delays in the conduct
of the trial by not having witnesses present timeously.
He also
caused additional costs to be incurred in filing an amendment to his
pleadings over a month after the conclusion of
the entire trial,
which resulted in additional costs being incurred by the Plaintiff
to deal with the issue of contributory negligence
ex post facto
.
The plea of contributory negligence should have been filed right at
the commencement of the action, and certainly, at the latest,
by the
conclusion of the leading of evidence. This would have enabled the
Plaintiff to deal with the newly raised defence fully
in argument on
the last day of the hearing, as all issues were dealt with on that
day. Instead, the Plaintiff had to incur the
costs of having to
prepare further Heads of Argument over three months after the trial
had ended. This would have resulted in
much additional and belated
work on the part of the Plaintiff’s legal representatives,
with a reperusal of the Record having
become necessary to address
the additional plea raised. In these circumstances, there is no
reason why the costs arising out
of the amendment to the plea should
not be paid on the attorney and client scale by the Defendant.
I accordingly make the following orders:
G.
ORDER
The Defendant is found to be liable for all such damages as may be
proven by the Plaintiff, or as agreed between the Plaintiff
and the
Defendant, arising out of the incident that occurred on 28 August
2008 in the vicinity of 5 Isak de Villiers Street,
Meyersdal,
Kempton Park.
Save as provided in the Order in paragraph below, the Defendant is
ordered to pay the costs of this action on the party and party

scale, such costs to include the costs of two counsel.
The Defendant is ordered to pay all the costs of the Plaintiff
arising out of and incidental to the amended plea of contributory

negligence on the attorney and client scale, such costs to include
the costs of two counsel.
________________
C
HARTFORD AJ
Signed:
25 August 2011
Delivered:
30
th
August 2011