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[2013] ZAGPJHC 2
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Minister of Police v Tshwanyane (A5037/2012, 20606/2010) [2013] ZAGPJHC 2 (7 February 2013)
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH
AFRICA)
APPEAL CASE NO:
A5037/2012
SOUTH GAUTENG HIGH
COURT CASE NO: 20606/2010
In
the matter between:-
THE
MINISTER OF POLICE
Appellant
(Defendant
in the Court below)
and
TSHWANYANE, PETER
KABELO
Respondent
(Plaintiff
in the Court below)
JUDGMENT
WILLIS
J:
[1] The appellant, the
Minister of Police, has appealed to the Full Court against the
judgment of Rossouw AJ delivered on 11 January
2012. The
appellant appeals with the leave of the learned judge in the court
below.
[2] The plaintiff claims
damages arising from a bullet wound to his foot that was inflicted
upon him by Detective Constable Nki
Stephen Selomo during the course
of an arrest in the Protea Gardens Mall, Soweto on 7 September 2009.
The remnant of a bullet
was located in the soft tissues lateral to
the
os calcis
on the right of the plaintiff’s right
heel. The issue of the plaintiff’s liability was separated from
that of
quantum
. The court below adjudicated the question of
the defendant’s liability. The learned judge found in favour of
the plaintiff.
[3] Detective Constable
Selomo gave impressive evidence. He described how he had been
investigating two charges of assault with
intent to commit grievous
bodily harm. Dangerous wounds, of a serious nature, had been
inflicted upon the complainants. Acting
on information given to him
by a reliable, unpaid informer, Selomo went in search of the suspect.
Having unsuccessfully attempted
to find the suspect at a shack in
Protea south on a few occasions, he and the informer drove about in
the area, known as Midway,
looking for the culprit. The informer
pointed out the plaintiff. Selomo went over to the plaintiff on foot.
When Selomo began to
introduce himself to the plaintiff, the
plaintiff started to run away. When Selomo realised that he would not
catch the plaintiff
on foot, he climbed back into his vehicle. The
plaintiff did not heed calls by Selomo to him that he should stop.
Selomo fired
a single warning shot, towards the ground, which
ricocheted and hit the plaintiff in the foot. The ricochet is
corroborated by
the fact that there was merely a remnant of a bullet
that was removed from the plaintiff’s foot.
[4] Having been hit in
the foot, the plaintiff stopped. Selomo then arrested him. Later,
Selomo noticed blood oozing out of the
shoe of the plaintiff. When he
realised that he had injured the plaintiff, Selomo took him to the
Lerato Hospital for treatment.
[5] The plaintiff
admitted that he had run away ‘because that man (i.e. Selomo)
was going to arrest me if I stayed there’.
The plaintiff said
he was about to smoke a ‘zol’ of dagga which was still in
his hand at the time when he first saw
Selomo. According to the
plaintiff he was dispossessed of this zol by Selomo. The
plaintiff said that he was afraid he would
be charged with possession
of dagga. The plaintiff has not been charged with either of the
assaults which were under investigation.
[7] The plaintiff said
that, after he had been apprehended by Selomo, Selomo had
slapped him in the face with an open hand.
Selomo denies this. Selomo
was incontestably the better witness. For example, the plaintiff
initially said he was shot in the back,
then his thigh and, only
after some prompting, the foot. That the plaintiff was shot in the
foot is supported by the report of
the doctor who examined him. Where
there is an irreconcilable difference between the evidence of the
plaintiff and Selomo, Selomo’s
evidence is to be preferred.
[6] In his amended
particulars of claim the plaintiff alleges that he was ‘wrongfully
shot in the foot and then assaulted
by a police officer by the name
of Selomo’. No allegation is made of Selomo’s negligence,
never mind the manner in
respect of which he might have been
negligent.
[7] Selomo was
cross-examined as to why he had shot in the direction of the ground
rather than in the air. Selomo gave credible
evidence that he
believed that in the context of the situation it was safer to shoot
towards the ground than in the air. During
the course of argument
counsel for the plaintiff submitted that the arrest of the plaintiff
in the manner which it did, in fact,
take place could have been
avoided by a raid on the plaintiff’s shack at night. As to
whether or not this might be a reasonable
proposition, this was
never put to Selomo when he was cross-examined.
[8]
Section 40
(1) (b) of
the
Criminal Procedure Act, No. 51 of 1977
as amended, (‘the
Act’) provides that a peace officer (as was Selomo) may,
without out a warrant, arrest any person
‘whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping
from lawful custody’. The
offences in question were ‘Schedule 1’ offences.
[9]
Section 49
(1) (b) of
the Act provides that if a person whom it is sought lawfully to
arrest: flees when it is clear that an attempt to arrest
him is being
made, or resists such attempt and flees, the person so authorised
may, in order to effect the arrest, use such force
as may in the
circumstances be reasonably necessary to overcome the arrest or to
prevent the person concerned from fleeing.
[10] The learned trial
judge found that:
...it has not been
established that Mr Selomo intentionally injured the Plaintiff.
Mr Selomo, however, acted negligently in
the circumstances by firing
the shot In the result I find that the defendant is liable to pay the
plaintiff’s damages as
a result of the defendant’s
servant acting in the course and scope of his employment. And the
Defendant’s problem in
this case is that Mr Selomo did not at
the relevant time have the intention to arrest the Plaintiff.
He was merely investigating
the matter. Such force as was used
was therefore not used in order to effect an arrest.
Section 49
does therefore not apply and the defence is misconceived.
[11] The court below
erred in finding that Selomo did not have the intention to arrest the
plaintiff. Selomo clearly did. The court
below also erred in finding
that Selomo acted negligently. If one applies the classic test in the
well known case of
Kruger
v Coetzee
:
[1]
For the purposes of
liability
culpa
arises if-
(a) a
diligens
paterfamilias
in the position of the defendant-
(i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and cause him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.
[2]
the ricochet was not a
reasonably foreseeable possibility.
[12] Having made a lawful
decision to arrest the plaintiff, using such force as was reasonably
necessary and proportional in the
circumstances to prevent him from
fleeing as a suspect, Selomo could not, in the circumstances, have
taken any other reasonable
steps to prevent the accident from
occurring.
[13] In any event, even
if I am wrong in my conclusion as to the absence of negligence on the
part of Selomo, it was wrong to determine
that Selomo’s
negligence was the basis upon which the defendant was liable.
Negligence was not, however, alleged in the particulars
of claim.
[14] The court is keenly
aware that we must not condone ‘trigger-happiness’ on the
part of the police. On the other
hand, we cannot set so high and
unrealistic a standard that they cannot properly attend to their most
important function of bringing
criminal offenders to book. Counsel
for both sides relied on the Constitutional Court’s decision in
Ex
Parte
Minister of Safety and Security: In re S v Walters
.
[3]
In that case, the court summarised the position as follows:
(a)
The purpose of arrest is to bring before court for trial
persons suspected of having committed offences.
(b)
Arrest is not the only means of achieving this purpose, nor
always the best.
(c)
Arrest may never be used to punish a suspect.
(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 arrester 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 arrester 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.
(i)
These limitations in no way detract from the rights of an arrester
attempting to carry out an arrest to kill a suspect in self-defence
or in defence of any other person.
[4]
Selomo’s conduct
was not in conflict with these requirements.
[15] The appellant
succeeds. The following is the order of the court:
(i) The appeal is
upheld;
(ii) The order of the
trial court is set aside and the following substituted therefor:
‘
The
plaintiff’s claim is dismissed with costs’.
DATED
AT JOHANNESBURG THIS 7
th
DAY OF FEBRUARY,
2013
N.P. WILLIS
JUDGE OF THE HIGH
COURT
I
agree.
J.P. HORN
JUDGE OF THE HIGH
COURT
I
agree.
B. MASHILE
ACTING JUDGE OF THE
HIGH COURT
Counsel
for the Appellant: Adv.
A. M. Pheto
Counsel
for the Respondent: Adv.
D. Bisshoff
Attorney
for the Appellant: The State Attorney
Attorney
for the Respondent: Raphael & David Smith Inc.
Dates
of hearing: 30
th
January, 2013
Date
of judgment: 7
th
February, 2013
[1]
1966 (2) SA 428 (A)
[2]
At 430E:
[3]
[2002] ZACC 6
;
2002 (4) SA 613
[4]
At
paragraph [54]